Bidder Participation Agreement
These Participation Terms (“Terms”) apply to each site listing, auction or other marketing or transaction event (each, an “Event”) conducted by SiteBid and/or its affiliates (collectively, “SiteBid”) on behalf of a Site Owner (each, a “Site Owner”) of real property or secured note(s) (each, a “Property”, and collectively, “Properties”). As used in these Terms, each prospective Bidder who participates in any Event is a “Participant”. As used in these Terms, the terms “SiteBid”, “Site Owner” and “Participant” shall also refer to the respective principals, agents, and affiliates of each. “Winning Bidder” is the Participant that (a) submits the highest net bid in an auction Event and is acknowledged by SiteBid by email or telephone as the winning bidder, or (b) submits any offer during any Event that is accepted by Site Owner. As used in these Terms, each bid or offer submitted in any Event is an “Offer”.
1. ACCOUNT CREATION AND BIDDING PROCESS
SiteBid conducts Events solely on behalf of Site Owner, and is not acting as an agent for any Participant in any capacity. By registering for an Event or submitting an Offer at www.SiteBid.com or any other SiteBid website (“Website”), Participant acknowledges having read and accepted these Terms. By submitting an Offer on a Property, Participant is deemed to have accepted any additional terms and conditions posted on the Property’s details page on the Website (“Property Page”) at the time the Offer was submitted, and such terms and conditions shall govern and control over these Terms to the extent of any conflict.
2. DUE DILIGENCE
Purchase Documents. Prior to submitting an Offer, Participants must review the posted agreements, any applicable addenda, Site Owner’s disclosure documentation, and all other transaction documents (collectively, “Purchase Documents”), on the Property Page. All Offers must be based on the posted Purchase Documents. Unless otherwise specified on the Property Page, the Purchase Documents are non-negotiable.
Due Diligence. It is each Participant’s responsibility to conduct its own due diligence and investigate all matters relating to each Property that Participant is interested in purchasing, including, without limitation, legal matters, physical condition and attributes, environmental matters, economic matters, encumbrances, and all other aspects. Participant must coordinate any such inspection with Site Owner. In some circumstances Site Owner may be unable to provide physical access for inspections and Participants must submit Offers accordingly at their own risk. All Offers should be based solely on Participant’s independent due diligence and any information contained in the Purchase Documents.
Property information has been gathered from a variety of sources and has not been independently verified by SiteBid. This information is provided on an “as is, as available” basis with all faults and defects. Participant may use this information for their own internal purposes and in a manner that is usual and customary for professionals within the ordinary scope of Participant’s licensed or regular business activity. Participants are encouraged to consult with a licensed real estate broker, contractor, attorney, financial advisor, tax advisor, and/or other relevant professionals.
Participant is responsible for all liability, damages and/or costs directly or indirectly arising from Participant’s inspection, visit, or investigation of the Property. Participant agrees to indemnify, defend and hold harmless Site Owner and SiteBid from any such liability, damages and/or costs, and to maintain all applicable policies of insurance insuring over such liability, damages and/or costs.
Irrevocability of Offers. All Offers submitted during any Event are irrevocable, except where an Offer withdrawal option is expressly made available to Participants through the Website or as otherwise set forth herein.
Signing Purchase Documents. The final Purchase Documents will be emailed to Winning Bidder for electronic signature using the email address associated with Winning Bidder’s SiteBid account. Winning Bidder must sign the Purchase Documents within three business days after they are sent to Winning Bidder (unless a longer timeframe is specified in writing by SiteBid), time being of the essence. If Winning Bidder fails to timely sign the Purchase Documents, SiteBid or Site Owner may declare Winning Bidder to be in default of these Terms and reject Winning Bidder’s Offer.
Payment of Earnest Money Deposit. The Purchase Documents for each Property require Winning Bidder to pay a deposit to the escrow/closing agent (“Earnest Money Deposit”). The amount of the Earnest Money Deposit is specified in the Purchase Documents or the Property Page for each Property. Unless otherwise specified in the Purchase Documents, the Earnest Money Deposit must be received by the escrow or closing agent no later than two business days after Winning Bidder receives wire instructions, time being of the essence. If the Earnest Money Deposit is not timely received, SiteBid or Site Owner may declare Winning Bidder to be in default of these Terms and Site Owner may reject Winning Bidder’s Offer.
Proof of Funds and Additional Information. SiteBid or Site Owner may require Participants to provide proof of readily available funds and/or additional information at any time. Participant must respond to such inquiries within one business day, time being of the essence. If such proof of funds or additional information is not timely received, SiteBid or Site Owner may reject Winning Bidder’s Offer and declare Winning Bidder to be in default of these Terms. Winning Bidders wanting to take title in the name of an entity (not as an individual) may be required to provide entity formation documents and resolutions authorizing the purchase within the timeframe specified by SiteBid (which may be before or after the Event, in SiteBid’s sole discretion). Site Owner and/or the escrow/closing agent may require additional documentation prior to closing.
Bidder’s Fee. If the Property Page for a Property states that a Bidder’s premium or transaction fee (“Bidder’s Fee”) applies to the sale, then Winning Bidder will be required to pay the Bidder’s Fee in addition to Winning Bidder’s Offer amount at closing. Unless otherwise specified for a particular Property, the Bidder’s Fee will be added to Winning Bidder’s Offer amount to establish the total purchase price payable by Winning Bidder.
The Bidder’s Fee, where designated by the Site Owner as applicable to any Property, is an additional charge that among other things may defray the Site Owner’s costs in the sales process including but not limited to the Platform Fee that it may pay and/or to provide compensation for services provided by SiteBid to the successful Bidder.
Property Restrictions. Some Properties have Right of First Refusal (“ROFR”) in their lease agreements or are subject to approval by a 3rd party (“Restricted Property”). All Offers for ROFR and Restricted Properties are subject to the approval of the applicable consent holders (“3rd party Consent”). If 3rd party Consent is not approved, the transaction will be cancelled and the Earnest Money Deposit will be returned to Participant.
4. BIDDING EVENTS
Reserve Price. Except for Properties noted “Absolute Auction” or “Minimum Bid Auction”, all Properties in auction Events have a minimum selling price established by Site Owner (“Reserve Price”). The starting bid is not the Reserve Price. Except where prohibited by law, SiteBid may counter bid on behalf of Site Owner on any Property up to the amount of the Reserve Price (and no such bid will result in a sale of the Property). Site Owner may accept a bid that is below the Reserve Price in its sole and absolute discretion. Regardless of the Reserve Price, Site Owner is under no obligation to sell a Property until the Purchase Documents have been signed by the Site Owner.
Managed Bid Events. For Properties to be marketed in a Managed Bid Event, Participants are invited by SiteBid or Site Owner to submit a non-binding indicative bid (“Indicative Bid”) before the Managed Bid Event. In order to submit an Indicative Bid, Participant must complete an Indicative Bid Form posted on the Property Page prior to the auction date. No deposit is required to submit an Indicative Bid; however, Participant registration may be required. Submission and acceptance of an Indicative Bid does not legally bind either Participant or Site Owner. If Site Owner decides to proceed with the Managed Bid Event, Site Owner will review the Indicative Bids for the Property and use them to determine which Participants may participate in the Managed Bid Event, in Site Owner’s sole and absolute discretion.
Direct Offer Event. For Properties to be marketed in a Direct Offer Event, Participants are allowed to submit an Offer for properties. Participant may be able to provide justification for Offer amount in some instances. Site Owner may accept, counter, or decline any Offer received on a Property within a specified time period designated during the Event. If the Site Owner chooses to counter an Offer, Participant may either accept or decline within the specified time period designated. If an Offer is not decisioned by either Site Owner or Participant in the allotted time then the Offer will expire and be withdrawn automatically. Site Owner may withdraw any Offer for any reason and at any time, in Site Owner’s sole discretion, including prior to the expiration of the allotted time designated for Participant’s acceptance. Any Offer, counteroffer or Offer acceptance during a Direct Offer Event does not constitute a written agreement for the sale of such Property. For any Direct Offer Event, Site Owner is under no obligation to sell a Property until the Purchase Documents have been signed by the Site Owner.
Extension of Auction Time. In order to allow final bids to be properly input and processed during auction Events, SiteBid may extend the time for bidding on any Property in its sole and absolute discretion to allow for additional bids.
Subject to Confirmation. Site Owner may designate certain Offers as “Subject To Confirmation” in its sole and absolute discretion, in which case Winning Bidder’s purchase is subject to, and contingent upon, Site Owner approving the purchase in its sole and absolute discretion within the time period set forth in the Purchase Documents. Winning Bidder will receive a refund of monies deposited if Site Owner chooses not to approve the purchase.
Cancellation Fee. Upon Bidding on an Event, Participants may be required to place a deposit to secure compliance with these Terms (“Cancellation Fee”). The amount of the Cancellation Fee and acceptable payment methods will be shown during bidding or otherwise agreed to by Participant in writing. SiteBid may modify, waive, or impose additional participation requirements for certain Properties or Participants in its sole and absolute discretion or at the request of Site Owner.
5. BROKER/AGENT PARTICIPATION
Broker Participation. We encourage real estate broker and agent participation. A cooperating broker commission or referral fee may be offered for some Properties. Please see the applicable Property Page for details regarding broker/agent participation and cooperating broker commissions or referral fees related to a specific Property. No cooperating broker commission or referral fee shall be paid to any broker or agent representing the Participant unless expressly set forth in writing for the applicable Property.
For certain Events, a registered broker/agent may submit Offers on behalf of a Bidder identified to SiteBid prior to Offer submission. By submitting an Offer on behalf of a Bidder, the broker/agent (i) represents and warrants that the broker/agent has received all Bidder authorizations and satisfied all legal requirements necessary to submit Offers on the Bidder’s behalf, (ii) acknowledges and agrees that any Offer submitted will be binding upon the broker/agent and the Bidder identified at registration to the same extent as if the Bidder had submitted the Offer, and (iii) agrees to indemnify and hold harmless SiteBid from any breach of these representations or warranties.
Participant shall indemnify and hold harmless SiteBid from any claims brought against SiteBid by any broker/agent representing Participant.
6. GENERAL INFORMATION
General. Site Owner and SiteBid reserve the right to deny, limit, or impose conditions on submitting Offers and/or access to the Website or any Event at any time, for any reason (including, without limitation, Participant’s solvency, credit history, transaction history, and Cancellation Fee amounts).
SiteBid may at any time postpone or cancel an Event, rearrange the order or sequence of the Properties in the Event, modify these Terms by posting notice of modification on the Property Page, remove any Property from the Event, or reject any or all Offers.
SiteBid, Site Owners and/or their agents may issue press releases and other public communications regarding the Event and/or any Property offered or sold during at an Event.
These Terms and the conduct of each Event shall be governed by the laws of California.
Any information on any website, in any brochure, e-mail or postcard and any and all information available regarding the Properties shall not constitute an offer to sell or a solicitation of any offer to buy any of the Properties. Offers submitted or solicitations made during any Event are void where prohibited by law. If any sale would require registration or qualification under applicable state securities laws, no such sale may be consummated until such applicable requirements have been met.
As between Site Owner and Participant, no obligation to sell shall be binding on Site Owner unless and until the Purchase Documents have been signed and delivered by Site Owner and the Earnest Money Deposit has been received as required hereunder. After the Purchase Documents have been fully signed, the Purchase Documents shall govern the relationship between Winning Bidder and Site Owner and SiteBid shall be released from any liability in connection therewith.
7. DISCLAIMERS; PARTICIPANT REPRESENTATIONS; CANCELLATION; LIQUIDATED DAMAGES
TOWERBID MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY, OR THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF ANY DOCUMENT PROVIDED BY SITEBID. EACH PARTICIPANT HEREBY RELEASES SITEBID AND ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS AND AGENTS (COLLECTIVELY, “REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT ANY SUCH PARTICIPANT MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SITEBID OR ANY OF ITS REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING ANY PROPERTY, THE DOCUMENTS USED IN EVALUATING OR ACQUIRING ANY PROPERTY, OR THE CONDUCTING OF ANY EVENT. THIS RELEASE INCLUDES CLAIMS OF WHICH PARTICIPANT IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO EXIST IN PARTICIPANT’S FAVOR WHICH, IF KNOWN BY PARTICIPANT, WOULD MATERIALLY AFFECT PARTICIPANT’S RELEASE OF SITEBID. EACH PARTICIPANT SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND OTHER SUBSTANTIALLY SIMILAR APPLICABLE STATE STATUTES) WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Participant agrees to indemnify and hold harmless SiteBid from any liability, damages and/or costs (including reasonable attorneys’ fees) arising from any first-party or third-party claim related to (i) Participant’s actions or inactions, (ii) any information or communications supplied by SiteBid, or (iii) the condition or occupancy status of any Property.
CANCELLATION; LIQUIDATED DAMAGES. IF PARTICIPANT BREACHES THESE TERMS, (1) PARTICIPANT’S OFFER MAY BE REJECTED BY SITEBID AND/OR SITE OWNER, (2) THE PROPERTY MAY BE IMMEDIATELY SOLD TO ANOTHER PARTICIPANT OR PLACED IN ANOTHER EVENT, AND (3) PARTICIPANT WILL BE RESPONSIBLE FOR PAYING SITEBID LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO THE GREATER OF THE AMOUNT OF THE CANCELLATION FEE SHOWN AT THE TIME OF BIDDING OR THE AMOUNT OF THE CANCELLATION FEE OTHERWISE AGREED TO BY PARTICIPANT IN WRITING.
SITEBID IS AUTHORIZED TO CHARGE THE CREDIT CARD PROVIDED BY PARTICIPANT AT REGISTRATION OR RETAIN THE AMOUNT DEPOSITED WITH SITEBID PURSUANT TO A SEPARATE WRITTEN AGREEMENT TO SATISFY ALL OR PART OF THE LIQUIDATED DAMAGES OWED BY PARTICIPANT. PARTICIPANT ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM PARTICIPANT’S BREACH OF THESE TERMS WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE, AND THAT THE AMOUNT EQUAL TO THE CANCELLATION FEE IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO SITEBID AND IS NOT A PENALTY OR FORFEITURE.