Auction Terms & Conditions
Zetabid Auction Terms and Conditions 2015
ONLINE ONLY AUCTION with RESERVE
These Terms and Conditions generally describe the terms on which certain real properties (individually, a "Property" and collectively, the "Properties") owned by the various selling entities (each, a "Seller" and collectively, the "Sellers") are to be offered for sale at auction. The Auction will be presented by Tallstone Capital Advisors, Inc. on its auction platform Zetabid.com (collectively referred to as "ZetaBid.") As used in these Terms and Conditions, "Auctioneer" shall mean ZetaBid. All properties are listed by a real estate broker licensed in the state where the Property is located ("Listing Broker") who's name and license number is listed on the property pages for the auction
The Sellers of the Properties have retained Auctioneer to offer such Properties for sale at the Auction on the Terms and Conditions set forth below. By participating in this Auction, you consent to be bound by these Terms and Conditions as well as by any additional terms that may be imposed by the Seller or announced prior to or at the Auction by Auctioneer. Prospective purchasers who register in accordance with these Terms and Conditions will be deemed "Bidders" at the Auction. All high Bidders (each a "High Bidder") will be required to execute a Purchase Agreement for that particular Property on a form that will be provided by the Seller and any required Seller Addenda to the Purchase Agreement (collectively, the "Purchase Agreement"), a copy of which is available for inspection on www.zetabid.com for such Property. Please note that the Purchase Agreement only constitutes an offer to purchase the subject Property and does not become a binding contract unless and until it has been accepted by the Seller. If an offer is later accepted by the Seller, the High Bidder shall become the "Winning Bidder." As between Seller and Winning Bidder, to the extent of any conflict or inconsistency between the Purchase Agreement and these Terms and Conditions, the Purchase Agreement will control.
THIS IS A "RESERVE" AUCTION (AS DEFINED BELOW) AND ALL HIGH BIDDERS MUST HAVE THEIR BID CONFIRMED BY THE SELLER IN ORDER TO BE ACCEPTED. NO OFFER OR BID MADE AT THE AUCTION EVENT SHALL BE DEEMED ACCEPTED UNTIL AND UNLESS SELLER HAS COMMUNICATED ITS ACCEPTANCE TO THE HIGH BIDDER BY EXECUTING A PURCHASE AGREEMENT (PURSUANT TO STATE REAL ESTATE LAW), IN WHICH CASE A BINDING CONTRACT WILL BE CREATED.
ALL OFFERS ARE SUBJECT INCLUSION OF A BUYER"S PREMIUM AS DEFINED IN SECTION 4.
You must register in order to bid at the Auction; however there is no fee to register. In order to register for the Auction, please go to www.zetabid.com and fill out the on-line Registration Form from the property detail page of the asset you wish to purchase.. We highly recommend that you register well in advance of Auction day to enhance your chances of being notified of any pertinent changes that may take place prior to Auction. Notwithstanding the foregoing, Auctioneer disclaims any obligation to notify you of any such changes or to provide you with any information, and therefore strongly recommends that you check the website regularly to obtain such information with respect to all Properties that you are interested in purchasing.
There are two stages to the registration, 1) Auction registration and 2) Maximum bid approval. To maintain the integrity of the online auction, you must provide a credit card which will be authorized, but not charged, and amount no greater than $1 to validate your identity.
Maximum bid approval: In addition, for homes above $500,000, Listing Broker and/or Auctioneer must approve each registration and require all bidders to provide financial documents and/or a lender pre-approval letter to establish your ability to close the transaction. Broker and/or Auctioneer will establish a maximum bid price for each registered bidder based on the financial information provided. Upon confirmation of your registration by the li, you will be able to place a bid on the property via the online bidding platform.
2. DUE DILIGENCE
Buyer will be given a Seven (7) day inspection contingency pursuant to the terms of the Purchase Agreement. However you must view the home before you bid and are encouraged to complete inspections during the open house events as all homes are sold As-Is.
Each Property may be scheduled to have one or more open houses pursuant to the schedule posted at www.zetabid.com. Open house events are hosted solely by third party Listing Brokers or their representatives acting on behalf of Sellers and Auctioneer has no responsibility for such open houses, including but not limited to cancellations or changes in times, all of which are the sole responsibility of the third party brokers. Additionally, the Listing Broker may be available to show Property by appointment. All Bidders must view the home prior to the auction. High Bidders shall represent, covenant, and warrant that they are offering to purchase the Property relying solely on their independent inspection of the Property in its existing "AS-IS, WHERE IS, WITH ALL FAULTS" condition. Auctioneer shall NOT be liable for any allowance, adjustment or revision whatsoever, including but not limited to those based upon any defect in the Property, the improvements, or the building systems, appliances or other contents, or the failure of the Property to conform to any specific standards. Any and all descriptions provided by Auctioneer regarding any Property, including but not limited to lot size, building dimensions, floor plans, square footage and/or number of bedrooms/bathrooms, are approximations only provided as an accommodation to Bidders, and are based on information provided by Seller which may not be accurate. A Property's actual characteristics including lot size, building dimensions, floor plans, square footage and/or number of bedrooms/bathrooms may vary and Auctioneer is not responsible for the accuracy or completeness of any such Property descriptions.
YOU SHOULD PERSONALLY INSPECT ALL PROPERTIES YOU ARE INTERESTED IN PURCHASING AND SATISFY YOURSELF REGARDING ITS PHYSICAL CONDITION AND OTHER CHARACTERISTICS. EACH BIDDER ASSUMES ALL RISKS ASSOCIATED WITH ANY SUCH INSPECTION. YOUR INSPECTION SHOULD INCLUDE ANY INVESTIGATION YOU FEEL IS NECESSARY OR USEFUL, INCLUDING A THOROUGH PHYSICAL INSPECTION OF THE PROPERTY AND REVIEW OF THE DOCUMENTS WHICH HAVE BEEN MADE AVAILABLE ON-LINE AT THE AUCTION WEBSITE (WWW.ZETABID.COM), AT THE PROPERTY SITE ON THE OPEN HOUSE DATES AND/OR AT THE AUCTION EVENT. EACH PROPERTY IS BEING OFFERED FOR SALE "AS IS, WHERE IS, AND WITH ALL FAULTS", WITH NO GUARANTEE OR WARRANTY BY ANY PARTY WHATSOEVER, AND IN ACCORDANCE WITH THE CONDITIONS HEREINAFTER DESCRIBED AND AS FURTHER DESCRIBED IN THE PURCHASE AGREEMENT (SEE BELOW FOR MORE DETAILS). YOU MAY WISH TO CONSULT WITH A LICENSED REAL ESTATE BROKER OR CONTRACTOR PRIOR TO MAKING ANY BID. ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS AND THOSE CONTAINED IN THE PURCHASE AGREEMENT. IN THE EVENT THAT YOUR OFFER IS ACCEPTED BY THE SELLER, YOUR OBLIGATION TO PURCHASE THE PROPERTY WILL NOT BE CONTINGENT UPON INSPECTION OF THE PROPERTY AFTER THE AUCTION UNLESS OTHERWISE SPECIFICALLY PERMITTED UNDER THE PURCHASE AGREEMENT. PLEASE BID ACCORDINGLY.
Inspection Indemnity: In connection with any due diligence, inspection, visit and/or investigation of the Property by prospective purchasers, Bidders and/or Winning Bidders or any person/entity on their behalf (the "Inspectors"), the Bidders shall (1) ensure that the Inspectors keep the Property free and clear of liens, (2) ensure that the Inspectors repair all damage arising from such inspection, and (3) indemnify, defend and hold Auctioneer harmless from all liability, claims, demands, damages and/or costs directly or indirectly arising therefrom. Inspectors shall carry, or require anyone acting on Inspector's behalf to carry, policies of liability, workers' compensation and other applicable insurance, defending and protecting Seller and Auctioneer from liability for any injuries to persons or property occurring during any inspection prior to close of the transaction.
Documents: Prospective Bidders are strongly advised to visit regularly the Auction website at www.zetabid.com in order to thoroughly review with your attorney (a) the Purchase Agreement, (b) all disclosure documentation (if any) (c) other pertinent information (if any) and (d) any changes made prior to the Auction Event.
Exclusion/Disclaimer of Warranty: Auctioneer makes no representation or warranty as to the accuracy or completeness of any information regarding the Property, including but not limited to information contained on-line at the Auction website, in any Auction advertising, in the Auction brochure or in the Property Information Packages available at the Property and/or the Auction Event.
By registering as a Bidder and bidding at the Auction, each Bidder shall be deemed to represent, warrant and agree with respect to each Property it bids upon that (a) such Bidder has inspected the Property and is familiar and satisfied with the physical condition thereof and has conducted such investigation of the Property as the Bidder has determined appropriate, (b) neither Auctioneer, nor any affiliate, agent, officer, employee or representative of either of them, has made any verbal or written representation, warranty, promise or guarantee whatsoever to the Bidder, expressed or implied, and in particular, that no such representations, warranties, guarantees, or promises have been made with respect to the physical condition, operation, or any other matter or thing affecting or related to the Property and/or the offering or sale of the Property, (c) Bidder has not relied upon any representation, warranty, guarantee or promise or upon any statement made or any information provided concerning the Property, including but not limited to information made available on-line at the Auction website, in Auction Advertising, in the Auction brochure, or in Property Information Packages provided or made available by Auctioneer, or their respective agents, employees or representatives, (d) Bidder has made its bid after having relied solely on its own independent investigation, inspection, analysis, appraisal and evaluation of the Property and the facts and circumstances related thereto, (e) Bidder shall not misrepresent its ability to close the transaction pursuant to the terms and conditions of sale, (f) Bidder has the capacity to close the transaction, and (g) Bidder has actual authority to enter a bid and to enter into an agreement to purchase the Property.
Upon registering as a Bidder and bidding at the Auction, each Bidder shall also be deemed to represent, warrant and agree that (x) any information provided or to be provided by or on behalf of the Sellers with respect to the Properties including, without limitation, all information contained on-line at the Auction website, in Auction advertising, in the Auction brochure and in the Property Information Packages being made available to Bidder by Sellers and Auctioneer, was obtained from Seller and/or Seller's agents, and Auctioneer has not made any independent investigation or verification of such information, and makes no representations as to the accuracy or completeness of such information, (y) without limiting the generality of the foregoing, Auctioneer shall be under any obligation to disclose to any Bidder, and shall have no liability for its failure to disclose to any Bidder, any information known to them relating to any Property except as may be required by law, and (z) Auctioneer are not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Properties, or the operation thereof, made or furnished by any real estate broker, agent, employee, or other person.
WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS OR THE PURCHASE AGREEMENT, ALL BIDDERS ACKNOWLEDGE AND AGREE THAT THEY ARE BIDDING FOR AND, IF THE WINNING BIDDER CONFIRMED BY THE SELLER, WILL ACQUIRE THE PROPERTY, INCLUDING THE IMPROVEMENTS CONSTRUCTED ON THE PROPERTY AND ALL APPLIANCES AND BUILDING SYSTEMS, IN ITS STATE AND CONDITION AS OF AUCTION DAY, WITH ALL DEFECTS, BOTH PATENT AND LATENT, INCLUDING THOSE LATENT DEFECTS KNOWN TO THE SELLER AND DISCLOSED BY THE SELLER TO THE BIDDERS, AND WITH ALL FAULTS, WHETHER KNOWN OR UNKNOWN, PRESENTLY EXISTING OR THAT MAY HEREAFTER ARISE. ALL PROSPECTIVE BIDDERS ACKNOWLEDGE AND AGREE THAT AUCTIONEER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATION, WARRANTY, PROMISE, COVENANT, AGREEMENT OR GUARANTY OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING WITHOUT LIMITATION: (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL PURPOSES, ACTIVITIES AND USES WHICH BIDDER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (H) THE EXISTENCE OF ANY VIEW FROM THE PROPERTY OR THAT ANY EXISTING VIEW WILL NOT BE OBSTRUCTED IN THE FUTURE; (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, (J) THE STRUCTURAL INTEGRITY OF ANY IMPROVEMENTS ON THE PROPERTY, (K) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY THAT MAY BE PROVIDED TO BIDDER, (L) THE CONFORMITY OF THE PROPERTY TO APPLICABLE ZONING OR BUILDING CODE REQUIREMENTS, (M) THE EXISTENCE OF SOIL INSTABILITY, PAST SOIL REPAIRS, SUSCEPTIBILITY TO LANDSLIDES, SUFFICIENCY OF UNDER-SHORING, SUFFICIENCY OF DRAINAGE, OR ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE LAND OR ANY BUILDINGS OR IMPROVEMENTS SITUATED THEREON, (N) WHETHER THE PROPERTY IS LOCATED IN A CRITICAL DUNES AREA, OR A SPECIAL FLOOD HAZARD ZONE OR INCLUDES WETLANDS OR (O) THE PRESENCE OF TERMITES OR OTHER PESTS AND ANY DAMAGE TO THE PROPERTY AND/OR ITS IMPROVEMENTS THAT MAY HAVE OCCURRED AS A RESULT. BIDDER ACKNOWLEDGES THAT THE PROPERTY AND ITS IMPROVEMENTS MAY NOT BE IN COMPLIANCE WITH APPLICABLE ZONING, BUILDING, HEALTH OR OTHER LAWS OR CODES, AND NEITHER SELLER, AUCTIONEER NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR AGENTS HAS OCCUPIED THE PROPERTY AND THAT THE PROPERTY MAY NOT BE IN HABITABLE CONDITION. ALL PROSPECTIVE BIDDERS FURTHER ACKNOWLEDGE AND AGREE THAT, WITHOUT LIMITATION, AUCTIONEER HAVE NOT MADE, DO NOT MAKE, AND SPECIFICALLY DISCLAIM ANY REPRESENTATIONS REGARDING COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OR WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS OR THE DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTIES, OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. EACH PROSPECTIVE BIDDER AND ANYONE CLAIMING BY, THROUGH OR UNDER THE SAME HEREBY FULLY AND IRREVOCABLY RELEASE AUCTIONEER, AND THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS AND AGENTS, FROM ANY AND ALL CLAIMS THAT HE/SHE/IT OR THEY MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST AUCTIONEER, AND/OR THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS AND AGENTS, FOR ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATING TO THE CONDUCT OF THE AUCTION AND/OR THE CONDITION OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS OR OTHER CONDITIONS, INCLUDING BUT NOT LIMITED TO ENVIRONMENTAL MATTERS, AFFECTING THE PROPERTY, OR ANY PORTION THEREOF. THIS RELEASE INCLUDES CLAIMS OF WHICH PROSPECTIVE BIDDER IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO EXIST IN HIS/HER/ITS FAVOR WHICH, IF KNOWN BY PROSPECTIVE BIDDER, WOULD MATERIALLY AFFECT PROSPECTIVE BIDDER'S RELEASE OF AUCTIONEER. EACH PROSPECTIVE BIDDER SHOULD CONSIDER THESE MATTERS WHEN REGISTERING AS A BIDDER AND BEFORE PLACING BIDS.
Property Conveyance: All Properties are to be conveyed by Seller to the Winning Bidder, if confirmed by Seller, at closing, and each such Winning Bidder will receive at closing a owner's policy of title insurance insuring Winning Bidder for the amount of the purchase price, subject to current taxes and assessments, easements, rights of way and other conditions of record, and any exceptions listed in the Preliminary Title Report for the Property and other standard title policy exclusions.
3. PRE-AUCTION OFFERS AND PROXY OFFERS
Pre-Auction Offers: Properties offered for sale at a scheduled auction also may be available for pre-auction offers at the published listing price posted on www.zetabid.com. You may submit an offer through your agent or the Listing Broker. Offers always remain subject to Seller confirmation and require full compliance with all other terms and conditions applicable to offers hereunder, including but not limited to items below that are required for a Valid Proxy Offer.
The pre-auction offer period concludes seven (7) days prior to the final day of the Online Auction Event at which the Property is to be offered for sale at auction, and thereafter offers may only be made in accordance with the auction event bidding methods contained in Section 4 or by Proxy Offer (see below paragraph).
Proxy or Maximum Bids. If you are unable to monitor your online bid status during the online bidding period you may place a Proxy Offer or Maximum Bid and the system will bid on your behalf up to your maximum Proxy Offer amount when higher bids are placed.
Please note that each Seller has the right to remove its Property or Properties from the Auction Event at any time, either before or after bidding has been completed. In the event a Property is removed after bidding has been completed, the Winning Bidder's sole remedy shall be the refund of all sums actually paid as Earnest Money Deposit and/or the Total Purchase Price actually paid. Neither Seller nor Auctioneer shall have any further obligation whatsoever to any Bidder in respect of any Properties withdrawn by any Seller as described in this section.
4. BIDDING DURING THE AUCTION
Reserve Price: ALL PROPERTIES HAVE A RESERVE PRICE; meaning the Seller of each Property has established an unpublished, minimum selling price. Properties designated specifically as "Sold Absolute-Without Reserve" do not have a reserve price. By participating in the Auction, you agree and acknowledge that the "starting bid" or the "listing price" may not be the Reserve Price. In order to become the Winning Bidder for a Property, a Bidder must meet or exceed the Reserve Price and have the highest bid and the Seller must confirm that bid by executing the Purchase Agreement. If no Bidders meet the Reserve Price, the Seller is under no obligation to entertain any offer for the Property; however, each Seller has the right to entertain and accept an offer from a High Bidder whose bid is lower than the Reserve Price. Auctioneer reserves the right to reject any bid that Auctioneer believes was made illegally or in bad faith. In the event of a dispute among bidders, Auctioneer may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the Property in dispute. In the event of any dispute concerning the high bid price for a Property, the record kept by Auctioneer shall control. The Seller may withdraw a Property at any time prior to the completion of the Auction.
Subject to Confirmation: All High Bidders acknowledge and agree that High Bidder's right to purchase a Property is subject to, and contingent upon, the Seller approving the purchase, which shall typically be given or denied in Seller's sole and absolute discretion within ten (10) days following the High Bidder's execution and delivery of the Purchase Agreement. Auctioneer shall have no liability to any Bidder if the Seller has not responded within such ten day period. Until the Purchase Agreement is mutually accepted, no party shall be bound to purchase or sell the Property. High Bidder will receive a refund of monies deposited in the event Seller or Buyer chooses to cancel the transaction prior to mutual acceptance. Sales at auction are never final until Seller's acceptance of the contract is communicated to Buyer in writing.
No Agency. Auctioneer is not acting as an agent for any Bidder in any capacity.
Notice: The amount or rate of real estate commissions is not fixed by law. They are set by each broker individually and may be negotiable between the seller and broker.
Buyer's Premium. The total purchase price will include a buyer's premium equal to a percentage of the highest amount bid by the High Bidder. Therefore, the actual total purchase price on the Auction day (and at the closing), if accepted by Seller, shall be equal to the highest amount bid by the High Bidder plus ("Total Purchase Price"). The Total Purchase Price does not include other amounts payable by the Buyer in connection with closing, such as escrow/closing fees, property taxes, insurance, and costs of obtaining financing.
THERE IS A MINIMUM BUYER'S PREMIUM OF $2,500.00 on all properties.
The actual Buyer Premium is displayed on the property detail web page at zetabid.com.. The Buyer Premium will vary by Seller and timing of the auction.
The buyer's premium is not a real estate commission; it is the fee that Auctioneer charges to Bidders for bringing the Property to auction. Any applicable real estate commissions will be determined separately in escrow. The Auctioneer is not involved in any way in connection with the closing of any real property transaction and all such functions will be handled exclusively by third party real estate brokerage professionals and/or escrow agencies although all winning bidders consent to Auctioneer contacting closing companies to monitor the closing process and review all transaction documents.
Methods of Bidding:
Once registered, and your maximum bid amount is set by the Auctioneer (homes over $500,000 require bidder to provide financial documentation to establish their ability to fund a real estate closing), to bid online simply enter your bid amount (on the property detail page) and confirm the amounts on the bid detail page and your bid will be placed. Bid increments are set by the Auctioneer. You must bid above the current bid by a minimum of the bid increment PLUS the amount of the next lowest bid.
You may monitor your bid status during the auction on your profile page when you are logged in. If you are unable to monitor your online bid status during the online bidding period you may place a Proxy Offer or Maximum Bid and the system will bid on your behalf up to your maximum Proxy Offer amount when higher bids are placed. With certain homes noted as such, you may also end the auction by bidding at the "Buy it Now" price if a Buy it Now button is activated on the bidding screen. If you place a bid and still the website still shows your status as 'outbid' another bidder has a maximum bid protecting their bid and you must bid a higher amount.
If you are the High Bidder you will be expected to confirm by email the High Bidder Confirmation Form within twelve hours (12) hours following the conclusion of online bidding and confirmation of the bid being the high bid or Auctioneer or Seller can declare the High Bidder to be in default. In such event, the High Bidder's bid shall be deemed revoked and Auctioneer and Seller shall have no liability or obligation to that Bidder. Furthermore, Auctioneer reserves the right to immediately put the Property back up for sale at the Auction OR offer the property to the second position bidder.
If you are an Online Bidder and the High Bidder, you will be contacted via telephone and email by the closing staff for instructions on contracts and financing. Contracts will be sent via email to be electronically signed via DocuSign. If not executed within 48 hours of the auction or your offer will be deemed withdrawn. In addition, you will be charged a $1,000 auction fee from your credit card deposit for failure to execute the contract as the High Bidder.
Auctioneer is in no way responsible for technical issues which could impede your ability to bid on any properties. AUCTIONEER DOES NOT WARRANT THAT THE WEBSITE OR ITS ONLINE BIDDING SERVICES, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE WEBSITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.
Payment of Deposit and Remaining Balance: Upon executing the Purchase Agreement, as its initial Earnest Money Deposit, High Bidder shall be required to pay a three percent (3%) of the Total Purchase Price. All monies will be immediately deposited with an escrow agent or closing attorney of Seller's choice. Buyer may choose the closing agents and title company but if so, Seller is not obligated to split fees or pay the cost of title policy per local custom. The balance of the Total Purchase Price, along with all other costs and/or fees, must be paid as required in the Purchase Agreement.
Closing: All sales shall close through the designated escrow company no later than forty five (45) days from Seller acceptance unless extended (see Extensions below) and/or unless otherwise specifically designated in the description of an individual Property. Actual scheduled closing dates will be set by the escrow company or closing attorney, but will generally be no later than forty five (45) days after mutual execution of a Purchase Contract. Winning Bidders shall be required to pay customary and normal closing costs, including, but not limited to, closing/escrow fees, recording fees, pro-rations of property taxes and assessments, lender's title insurance premium and fees, loan fees, document preparation fees, all documentary transfer taxes customarily paid by buyers, and Homeowner's Association fees and assessments, if applicable.
Cancellation/Damages: If Winning Bidder fails to comply with any of the foregoing, or subsequently defaults under the Purchase Agreement after it has been accepted by Seller, the sale may be canceled by the Seller and the Buyer shall be liable for damages as set forth in the Purchase Agreement.
Extensions: In certain cases, the Seller may grant extensions of the closing date pursuant to the Purchase Agreement or as otherwise negotiated between Seller and Buyer and may involve a per day penalty of up to $100.
Vesting: High Bidders that intend to take title in the name of an entity (not an individual person) must provide, after the Auction, the following entity formation documents (this is not an all-inclusive list and escrow/title agent or closing attorney may require additional documentation prior to closing).
1. For Corporations provide:
a. Articles of Incorporation;
b. By-laws; and
c. Resolution authorizing the Corporation to purchase the Property and the party signing the Purchase Agreement to act on behalf of Corporation in this transaction.
2. For Limited Liability Companies ("LLC") provide:
a. Articles of Organization;
b. Operating Agreement; and
c. Resolution authorizing the LLC to purchase the Property and the party signing Purchase Agreement to act on behalf of LLC in this transaction.
3. For Trusts, provide Declaration of Trust and evidence that party signing contract is Trustee of the Trust and is authorized to sign on behalf of the Trust.
4. For Partnerships, provide Partnership Agreement evidencing the authority of party signing contract to sign on behalf of the Partnership.
NOTE: Practices that eliminate competition, such as collusive bidding, may result in criminal, civil, and/or administrative action against the participants.
5. FINANCING YOUR PURCHASE
Third party designated auction lenders will be available before and after the Auction Event to provide financing, subject to credit approval, satisfaction of the lender's requirements and execution of all documentation acceptable to High Bidder and the lender. Third party designated auction lenders will be available as an accommodation only; the fact that such third party designated auction lenders are available at the Auction Event does not constitute an endorsement by Auctioneer of such lenders, their services or their products. Such lenders may not be willing to provide financing on all Properties due to a particular Property's physical condition or for any other reason. Potential financing information will be made available on-line or by calling those designated lenders. We highly recommend that you prequalify for any necessary financing to expedite the closing process.
All loans financed by designated third party lenders shall be secured by a first priority mortgage on the Property. Lenders may charge loan origination fees and other fees and costs for which you will be responsible. Availability of loan programs on selected Properties may be limited and may require a greater down payment. We encourage you to contact the Auction designated lenders for pre-qualification procedures and/or current rates or fees. You are not required to fund your loan with an auction designated lender. Please review the exact contract language in the Purchase Agreement and Addendum for conditions and restrictions. Auctioneer does not receive any financial compensation from lenders affiliated with the event.
High Bidders may use any other third-party financing (financing other than through designated lenders of the Auction Event). If High Bidders use such third-party financing they must present at the Auction a written, unconditional lending commitment from their lender of choice, in the minimum of the full amount they intend to finance.
All High Bidders are deemed to irrevocably consent to and authorize the lender and their agents, and/or any other third party to the purchase transaction, to obtain any type of credit report of Buyer's history at the Auction or at any time prior to the closing of the transaction.
High Bidders intending to use cash to complete their purchase must provide Seller, prior to execution of the Purchase Contract, with proof of sufficient funds to cover the entire transaction (i.e. bank statement and/or investment statement for stocks/bonds).
6. BROKER PARTICIPATION
We invite broker participation. A two percent (2.0%) commission, based on the winning bid price, will be paid by Seller (or listing broker) to brokers representing a Winning Bidder and licensed in the state in which the Property is located, who have completed all of the following steps, and whose client(s) successfully purchase the Property and close the transaction.
To qualify for a commission when representing a Bidder at the Auction Event, a broker must:
1. Inspect the Property with your client;
2. Provide your license number to Auctioneer staff and Listing Broker
3. Review (and sign where required) the Purchase Contract with your client
There are no exceptions to the above broker participation rules.
Commissions shall not be paid on the amount of the buyer's premium and are based solely on the winning bid price.
Commissions shall not be paid to any broker acting as a principal in a transaction.
7. ARBITRATION OF DISPUTES
BY BIDDING AT THE AUCTION, WHETHER IN PERSON, ON-LINE, OR BY PROXY, EACH BIDDER ACKNOWLEDGES AND AGREES IRREVOCABLY THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS AND/OR THE AUCTION, WITH THE EXCEPTION OF THOSE CONTROVERSIES OR CLAIMS SPECIFICALLY EXCLUDED BELOW, SHALL BE SETTLED BY BINDING ARBITRATION HELD IN LOS ANGELES COUNTY, CALIFORNIA BEFORE A RETIRED JUDGE OR JUSTICE IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA") COMMERCIAL ARBITRATION RULES ("AAA RULES"), AND, WHERE APPROPRIATE, THE AAA'S SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES ("AAA CONSUMER RULES"). IF AUCTIONEER AND BIDDER ARE UNABLE TO AGREE ON A RETIRED JUDGE OR JUSTICE, EACH PARTY WILL NAME A RETIRED JUDGE OR JUSTICE AND THE TWO NAMED PERSONS WILL SELECT A NEUTRAL JUDGE OR JUSTICE WHO WILL ACT AS THE SOLE ARBITRATOR. THE PREVAILING PARTY IN ANY ARBITRATION OR OTHER COURT PROCEEDING SHALL BE AWARDED ITS REASONABLE COSTS AND ATTORNEYS' FEES INCURRED IN CONNECTION WITH THE DISPUTE. THE ARBITRATION AWARD SHALL BE FINAL AND BINDING ON THE PARTIES, AND JUDGMENT ON THE AWARD MAY BE ENTERED BY ANY COURT OF COMPETENT JURISDICTION. THE DETERMINATION OF WHETHER A DISPUTE IS SUBJECT TO ARBITRATION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AND DETERMINED BY A COURT RATHER THAN AN ARBITRATOR. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY THE AAA RULES AND, WHERE APPROPRIATE, LIMITED BY THE AAA CONSUMER RULES.
ANY ARBITRATION SHALL BE LIMITED TO THE DISPUTE BETWEEN AUCTIONEER AND BIDDER INDIVIDUALLY. TO THE FULL EXTENT PERMITTED BY LAW, (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
THE FOLLOWING DISPUTES ARE NOT SUBJECT TO THIS BINDING ARBITRATION PROVISION: (1) ANY DISPUTES SEEKING TO ENFORCE OR PROTECT, OR CONCERNING THE VALIDITY OF, ANY OF YOUR OR AUCTIONEER'S INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED, OR ARISING FROM, ALLEGATIONS OF INVASION OF PRIVACY OR UNAUTHORIZED USE; (3) ANY CLAIM FOR INJUNCTIVE RELIEF; AND (4) ANY CLAIM UNDER THE PURCHASE AGREEMENT.
WITH RESPECT TO DISCOVERY IN ANY ARBITRATION PROCEEDING, NO MORE THAN 45 CALENDAR DAYS BEFORE THE ARBITRATION, A PARTY MAY SERVE A DOCUMENT REQUEST CALLING FOR ANY DOCUMENT THAT WOULD BE DISCOVERABLE IN CIVIL LITIGATION PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE. THE PARTY SERVED WITH THIS REQUEST SHALL DELIVER THE REQUESTED DOCUMENTS AND ANY OBJECTIONS WITHIN 15 BUSINESS DAYS. THE ARBITRATOR MAY RESOLVE ANY DISPUTE OVER THE EXCHANGE OF DOCUMENTS. THEREAFTER, EACH PARTY MAY TAKE NO MORE THAN FOUR DEPOSITIONS, WHICH SHALL LAST NO MORE THAN SIX HOURS EACH. THE ARBITRATOR MAY RESOLVE ANY DISPUTE OVER DISCOVERY AS SUCH DISPUTE WOULD BE RESOLVED IN CIVIL LITIGATION PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE.
BY AGREEING TO HAVE ANY DISPUTE THAT IS SUBJECT TO THIS "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW, YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL, AS WELL AS YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, EXCEPT TO THE EXTENT THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
8. GENERAL AUCTION INFORMATION
Auctioneer has the right to postpone or cancel the Auction at any time, with or without advance notice, and to change any terms of the Auction or particular conditions of the Auction upon announcement prior to or during the course of the Auction. Seller and Auctioneer have the right to withdraw any Property from the Auction at any time, with or without advance notice.
Announcements made by the Auctioneer or its announcer at the Auction shall supersede and take precedence over all prior oral or written terms and conditions - including these Terms and Conditions. The Auctioneer may rearrange the order or sequence of the Auction, modify the Auction Terms and Conditions, reject any or all bids and/or advance the bidding. In the event of a dispute among Bidders, the Auctioneer shall make the sole and final decision to either accept the high bid or to re-offer and resell the Property in dispute.
Auctioneer shall not be liable for any damages of any type or nature (whether in contract, tort or otherwise) sustained or claimed by any Bidder or any other person or entity in connection with the Auction and/or the sale of any Property. Without limiting the foregoing, in no event shall Auctioneer's liability to any Bidder for any act or omission occurring in connection with the Auction exceed the amount that such Bidder has actually paid to Auctioneer as a deposit or as payment for a particular Property.
The respective rights and obligations of the parties with respect to these Auction Terms and Conditions and the conduct of the Auction shall be governed by, interpreted and enforced under the laws of the state in which the auction is held, California for online auctions. Upon execution of the Purchase Agreement, all rights and remedies with respect to the Property covered by such Purchase Agreement shall be governed by such Purchase Agreement. In the event of any dispute arising between Auctioneer and any Bidder, whether or not subject to arbitration pursuant to Section 7 above, the prevailing party will be awarded its reasonable costs and attorneys' fees.
Offers made at the Auction are void where prohibited by law. 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 referenced herein. In addition, and without limiting the foregoing, any website, advertisement or brochure shall not constitute an offer to sell or a solicitation of any offer to buy nor shall there be any sales of any of the Properties in any state in which such offer, solicitation, or sale would be unlawful.
These Terms and Conditions, together with any additional terms and conditions specific to a particular auction (which are incorporated herein by reference and can be found through one or more links on the detail page for the auction in question), constitute the entire agreement between Auctioneer and Bidder regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to affect the intent of these Terms, and the remainder of this Agreement shall continue in full force and effect.
Sebae Data Solutions, Inc.
SERVICE TERMS AND CONDITIONS
ACCEPTANCE OF TERMS
Sebae Data Solutions, (the makers of Auction Flex & HiBid (formerly Bidopia) hereafter referred to as "Sebae"), provides its service to you, subject to the following Terms & Conditions ("TAC"), which we may update from time to time without notice to you. The most current version of the TAC can be found found at any time by visiting the link: http://www.auctionflex.com/showtandc.ap
USE AND REGISTRATION
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended members. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our service. If you are registering as a business entity, you represent that you have the authority to bind the entity to the TAC.
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Bidder Information") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sebae has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sebae has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
DESCRIPTIONS OF SERVICE
Sebae provides the following services under the Auction Flex & HiBid trademarks: Integrated Web Service (for auctioneers), internet bidding (absentee, online-only, & webcast). You can learn more about these services in the following sections.
HIBID INTERNET AUCTION PLATFORM & WEB SERVICE DESCRIPTION
Sebae provides the HiBid (formerly Bidopia) Internet Auction Platform & Web Service ("HWS") under the HiBid trademark as a software solution for auctioneers wishing to extend the audience of their live auctions to the internet. The HWS provides various features including internet absentee bidding, internet-only auctions, and webcast auctions.
The HWS is able to changes its appearance to coincide with the website that it is powering. Accordingly, the HWS powers the www.hibid.com website as well as numerous Auction Flex customer websites. This ability to change appearance is a feature of the HWS. Much like internet merchant account providers can host a secure web page for a vendor to easily process payments, the HWS hosts certain portions of the auctioneer's website to easily enable advanced features such as internet bidding.
INTERNET ABSENTEE BIDDING
Internet absentee bidding allows you to place a bid for an item in advance of an auction. This allows you to place bids on lots without actually attending the auction.
Internet only bidding allows you to place a bid for an item prior to the auction lot closing online. In an internet-only auction there is no live auction.
Webcast auctions allow you to bid in real-time against other bidders or place pre-bids prior to a lot going "live".
Lots are sold in accordance with the Auctioneer's terms and conditions which are accessible from each lot's page. It is your responsibility to read and accept the Auctioneer's terms and conditions prior to placing your bid.
When you place a bid you are agreeing to be bound by the Auctioneer's & Sebae's terms and conditions. By placing a bid you are entering into a legally binding and enforceable contract. Please keep in mind that you are bidding against other internet bidders as well as floor bidders, phone bidders, and regular absentee bidders (this list does not constitute a complete list of bidder types but does highlight the common bidder channels).
The auctioneer, at their discretion, can approve or deny bidders. The auctioneer reserves the right to accept or deny bidders for any reason. Prior to approval the auctioneer may contact you to determine your credit worthiness. If the auctioneer approves your bid, the auctioneer will then process your bid in accordance with their terms and conditions.
Should your bid for a lot prove successful, the auctioneer may contact you to arrange for payment & shipping (if applicable). If the auctioneer required registration via a credit card, the auctioneer reserves the right to process your winning bids to the credit card provided during registration.
Sebae, through the Auction Flex & HiBid products & services, facilitates the internet bidding process between the Auctioneer & the bidder. Sebae is in no way a party to the transaction. Because Sebae is not a party to the transaction, you accept that you will have no claim or cause of action against Sebae in respect of the sale (or non-sale) of any Lot. If you have a dispute with an Auctioneer or another user of the Service with regard to the sale (or non-sale) of any Lot you agree that Sebae, its officers, agents, employees will not be liable for losses (including, but not limited to, loss of profits, special loss, indirect loss and consequential los), costs, damages, liabilities, claims, demands and expenses of any kind arising out of or connected with such dispute. You also accept that none of the aforementioned are under any obligation to take any action to resolve any dispute between you and an Auctioneer
Sebae is not responsible for any typographical, pictorial or technical errors in information about Lots on the Site as provided by Auctioneers. Sebae does not evaluate Lots and does not act as a specialist or expert on any related subject matter. Sebae makes no warranties or representation of any kind or nature with respect to Lots (including but not limited to representations or warranties as to the accuracy of description, genuineness, quality, authorship, attribution, provenance, period, culture, source, origin or safety). If you have any questions, e-mail the Auctioneer directly. In particular, make sure that you understand the Auctioneer's payment terms and shipping terms.
The Service requires you to login with your username and password prior to placing a bid on a Lot. Making bids with false information or with stolen credit card information is prohibited and illegal.
Your user name and password are required in order to place internet bids. Making bids in a false name or with an invalid or stolen credit card is prohibited. Each bid carries the computer coding of the Internet provider which allows the individual user to be traced and Sebae may at its discretion release this information to enable legal action to be taken. Sebae may, in its entire discretion, refuse or remove bids where it suspects that bids contravene this prohibition. By placing a bid, you are making a binding and irrevocable offer to purchase the Item at any price up to the maximum bid amount you submit. If you win, you must complete the transaction, subject to any contractual right or other right at law to rescind the contract in certain circumstances. Failure to complete transaction without lawful reason is not only a breach of your contract with the Seller but also a breach of this User Agreement.
The amount bid can be increased but cannot be decreased. The auctioneer may, at their discretion, allow you to withdraw and resubmit a bid in the case of bids containing an obvious typographical error. You may forward a request to withdraw a bid and resubmit a correct bid by immediately sending an email to the auctioneer, however, there is no guarantee that any bid will be withdrawn. Although Sebae will use best efforts to forward all bids, Sebae does not accept any responsibility for lost bids or problems with the recipient auctioneer's ability to process your bid. Moreover, Sebae cannot guarantee that bids received will be processed by the individual auctioneers.
Please note that Sebae's role is limited to the provision of the Site for dissemination and publication of information provided by the Sellers.
THE WINNING BID
The winning bid in an auction will be the highest bid that exceeds any reserve (if a reserve exists). In the case of equal bids, the earliest bid received will be the winning bid. If a higher bid is subsequently withdrawn or removed then the auctioneer shall have the right to accept the next highest bid.
NOTICE OF END OF SALE, PAYMENT & SHIPPING
After the sale has ended, the auctioneer will notify the winning bidder via phone, fax or mail that they have won. If you do not receive notice that you have made the winning bid and think that you are the top bidder, you should check with the auctioneer directly. You will make all payment for Items to the auctioneer in accordance with their terms and conditions.
BUYER'S PREMIUM, TAXES AND DUTIES
If you are a successful bidder, you are responsible for paying any buyer's premium, taxes and duties (including any VAT, sales tax and import duties) that may be imposed on the final price paid for an Item. Accordingly, it is your responsibility to check the applicable taxes and duties that may be imposed on an Item prior to bidding for it.
All material and content as provided by the Service is protected by copyright and similar rights. You can not use or make available any of that material for any commercial purpose.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
a. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. Sebae expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
b. Sebae makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the software will be corrected.
c. Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
d. no advice or information, whether oral or written, obtained by you from Sebae or through or from the service shall create any warranty not expressly state in the TAC.
LIMITATION OF LIABILITY
You expressly understand and agree that Sebae shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Sebae has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the service.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of of the previous two sections titled 'Disclaimer of Warranties' and 'Limitation of Liability' may not apply to you.
You agree to indemnify and hold Sebae harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
The TAC constitute the entire agreement between you and Sebae and govern your use of the Service, superseding any prior agreements between you and Sebae. The TAC and the relationship between you and Sebae shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and Sebae agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Marion, Florida. The failure of Sebae to exercise or enforce any right or provision of the TAC shall not constitute a waiver of such right or provision. If any provision of the TAC 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 the TAC remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TAC must be filed within one (1) year after such claim or cause of action arose or be forever barred.