GRAFE AUCTION USER AGREEMENT
Welcome to the Grafe Auction Co. (“Grafe”) online community (the “Site”). This User Agreement describes the terms and conditions that apply to the buying or bidding of goods or other services offered by Grafe on this Site (collectively, the "Services"). You must register and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. Grafe reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy or guideline of the Site, at any time and in its sole discretion. Any changes or modification will be effective upon posting of the revisions on the Site. Changes or modifications to referenced policies and guidelines may be posted without notice to you. It is your responsibility to carefully read this Agreement before using this Site or the Services. Your continued use of this Site and the Services following Grafe’s posting of its changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY MODIFICATION, DO NOT REGISTER OR CONTINUE TO USE THE SERVICES OR THIS SITE.
The Services may only be used by persons who can enter into legally binding contracts under applicable law for the purchase of goods or services. Consequently, persons under the age of 18 may not use the Services and should not register. To participate in the bidding process, we may require a valid credit card number, billing address, and credit card expiration date. We use this information to charge your credit card for fees due to Grafe associated with your purchases from Grafe and to verify your name, address, and other information. Your credit card password and credit card number are not disclosed in aggregate or otherwise to any unauthorized third party but may be disclosed for resolving billing disputes with your credit card company.
2. Fee and Payment Terms
Participating in Grafe Auction as a bidder is free. Fees and Payment Terms applicable to the sale of goods on the Site are incorporated herein by reference. Unless otherwise stated, all fees are quoted in U.S. dollars. The Fees and Payment Terms are subject to change in Grafe’s sole discretion. Therefore, the Fees and Payment Terms applicable to any transaction are governed by the terms in effect at the date of the listing of an item for sale on the Site. Shipping terms applicable to an auctioned item will be disclosed at the time of auction. You are responsible for the payment of any and all applicable taxes, shipping and other costs you incur from using the Services.
Grafe cannot guarantee that sellers will complete the sale of a lot, or that buyers will go through with the purchase of item(s) at auction ("lots"). All risk of participating on the Site or using the Services is assumed by the individual buyers and sellers. You hereby release Grafe and its respective directors, employees and agents from any disputes, claims, demands, and/or damages (actual or consequential) of every kind, whether known or unknown, arising out of or relating to your use of the Site and the Services, including, without limitation, uncompleted or completed transactions and any claims or disputes between buyers and sellers.
4. Completion of Sales
Bidders that participate in auctions will be required to submit a credit card prior to placing a bid as part of the general registration. All successful bids are payable upon demand to Grafe on a VISA, MasterCard, Discover or American Express credit card. By participating in an auction and by placing a bid in any auction, you authorize Grafe or its authorized agent to charge the credit card you registered for purposes of completing the transaction with Grafe in the event that you are the highest bidder. Applicable sales tax is additional and based on the ship-to-address.
5. General Rules and Policies
5.1. General Policies.
5.2. Contractual Obligations
The auction process is a method in which Grafe solicits offers from buyers for the sale of lots. A bid is a legal offer to buy the lot. Once accepted by Grafe, a contract is created between the buyer and seller for the sale and purchase of the lot in accordance with the terms disclosed at the time of the auction. By entering into this Agreement and bidding on a lot, you agree to complete the transaction as described and fulfill any and all contractual obligations.
5.3. "Without Reserve" Sales.
Unless otherwise specified, all auctioned items are "without reserve." In a sale "without reserve," the words "without reserve" show prospective bidders that the auction item will actually go to the bidder offering the highest price, and the seller may not nullify this purpose by bidding himself or herself (or through an agent) or by withdrawing the property for sale if he or she is not pleased with the bids. If an auctioned item is sold with a "reserve price", the seller is only obligated to sell the auction item once the reserve price is met or
You agree not to interfere with the Site or any transaction. You agree not to impose any unreasonably or disproportionately large load on Grafe’s systems or facilities. You agree not to put any material on the Site that contains any viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information.
5.5. Warranties on Auction
UNLESS OTHERWISE SPECIFIED IN ANY GIVEN AUCTION, ALL GOODS OR SERVICES SOLD THROUGH THE SITE ARE SOLD "AS IS" AND GRAFE DOES NOT PROVIDE AND HEREBY DISCLAIMS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, FOR ANY GOOD OR SERVICES LISTED ON THE SITE. GRAFE OR RELATED GRAFE ENTITIES, MAY OFFER LIMITED WARRANTIES WHICH ARE DISCLOSED AT THE TIME OF AUCTION.
6. Obligations of Buyers
By placing a bid, you are making an offer for the purchase of the auctioned item. If you are a winning bidder, your offer has been accepted by the seller and you are legally obligated to complete the transaction unless there are exceptional circumstances such as the terms of sale have changed since you submitted your bid. You understand that not completing an otherwise valid agreement may be legally actionable by the seller.
6.2. Cancellation; Reinstatement
You cannot retract a bid unless there are exceptional circumstances such as the seller materially changing the description of the goods after you bid, or obvious typographical errors. If a winning bid is disqualified in an open auction, Grafe may reinstate your currently unsuccessful bid to winning status at your most recent bid price while the auction is still open.
You may not register and make bids under a false name or with an invalid credit card. Such fraudulent conduct is a violation of federal and state laws. Fraudulent bidders may be reported to relevant state and federal law enforcement agencies and Grafe will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
7. Authentication; Security
7.1. Passwords; Equipment
You may not disclose your password to any third party and are solely responsible for any use of or action taken under your password on this Site. Your password may be used only to access and use the Services. If your password is compromised or otherwise disclosed, you must change your password in order to minimize your risk of loss. You are responsible for providing and maintaining all equipment necessary to use Grafe’s Services, including, without limitation, computer hardware and software, modems, and telephone service. Further, you are solely responsible for (a) maintaining the security of your personal information, including, without limitation, account and login information, passwords, and financial information; (b) all telephone and toll charges which may apply to your account depending on your location; and (c) any other charges resulting from the use of your account.
8.1. Investigation of Violations
Grafe may investigate any reported violation of this Agreement, its policies or guidelines, or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, subscribers and/or third parties. Grafe’s actions may include, but are not limited to, issuing warnings, suspension or termination of the Services, and/or removal of or disabling access to content hosted on Grafe’s systems. Grafe reserves the right and has absolute discretion to remove or disable access, screen or edit any content that violates these provisions or is otherwise objectionable. Grafe also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials.
9. Your Information and Privacy
9.2. Your Limited Use
You agree not to make use of anyone else's information other than as necessary to participate in the Site and to complete any transaction in which you are involved. Specifically, you agree that with respect to any information disclosed to you by Grafe regarding another user of the Services, you only will use such information, unless otherwise authorized, (a) to complete transactions originating from the Site, including the use of third-party services, (b) for communications with Grafe, or (c) as permitted by the corresponding user identified in such information. You agree not to disclose any user information disclosed to you by Grafe except as provided by this Agreement or with Grafe’s consent. You further agree not to use any information accessible from the Site for purposes of solicitation, advertisement, or spamming, or which is harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable.
10. Disclaimer of Warranties
10.1. Your Warranties
You hereby represent and warrant that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and any applicable policies; and (d) you will be financially responsible for the use of your account and all transactions you enter into through the Site or using the Services.
10.2. Grafe Disclaimer
THE SITE AND SERVICES ARE OFFERED BY GRAFE ITS AGENTS OR SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, AND DELIVERING THE SITE AND SERVICES (COLLECTIVELY, "GRAFE’S PROVIDERS") "AS IS" WITHOUT ANY WARRANTY OR CONDITION (EXPRESS OR IMPLIED). GRAFE AND GRAFE'S PROVIDERS DO NOT WARRANT THE SERVICE DESCRIBED HEREIN AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, OR THAT THE SITE OR THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GRAFE DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SITE AND SERVICES PROVIDED HEREUNDER, OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
11. Your Indemnity.
You hereby release, hold harmless, and indemnify Grafe and its affiliates and Providers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Grafe, arising out of or relating to (a) the violation or breach of any term, condition, representation or warranty of this Agreement; (b) improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party.
12. Limitation of Liability
IN NO EVENT SHALL GRAFE AND GRAFE'S PROVIDERS (AS DEFINED ABOVE) BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICES, OR ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES, EVEN IF GRAFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GRAFE OR GRAFE'S PROVIDERS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR THE SERVICES EXCEED THE GREATER OF THE AMOUNT YOU ACTUALLY PAID TO GRAFE FOR THE SERVICES IN THE PRECEDING TWELVE (12) MONTHS OR US$500.00. YOU HEREBY RELEASE GRAFE AND ITS PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
In its sole discretion, Grafe may terminate this Agreement or prohibit or suspend access to the Site or the Services by you at any time, without prior notice or liability. Termination or suspension may occur, without limitation, if: (a) your use of the Service violates this Agreement or any applicable policy or guideline, is potentially illegal or harmful to Grafe or any other party, or could subject Grafe to liability or additional expense; (b) providing the Service becomes technically or commercially unfeasible; or (c) you fail to pay any charges due to Grafe. The following sections will survive termination of this Agreement and the Services: "Third-Party Auctions", "Enforcement", "Indemnification", "Disclaimer of Warranties", "Limitation of Liability", and "General Provisions".
14. General Provisions
14.1. APPLICABLE LAW
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF MINNESOTA, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN ROCHESTER, MN, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
14.2. Compliance with Laws
You shall at all times comply with all applicable laws and regulations regarding the use of the Services and your bidding, and purchase, of items on the Site. You shall indemnify and save Grafe harmless from your failure to so comply. You agree that Grafe shall not have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.
14.3. No Agency
Grafe is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications. Further, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of this Agreement shall remain in full force and effect.
14.5. Claim Limitation
You agree regardless of any statute or law to the contrary that any claim or cause of action arising out of or relating to the Site, use of the Services, or this Agreement must be filed within one (1) year after such claim of action arose or be forever barred. 14.6. Waiver. Grafe's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Grafe’s right to subsequently enforce such provision or any other provisions of this Agreement.
14.7. Assignment; Resale
You may not assign this Agreement, by operation of law or otherwise, without Grafe’s prior written consent. Grafe may assign its rights and obligations under this Agreement without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. You agree not to resell your rights or obligations under these terms and conditions and not to make any unauthorized commercial use of the Site or Services.
Any notice you make to Grafe must be made by either e-mail or regular mail. Grafe may give notice of changes or modifications to this Agreement or other policies applicable to the Site or the Services by posting a notice of them on the Site.
14.9. Entire Agreement
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.
Last Edited: April 26, 2016