TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) apply to each auction or other listing (each, an “Event”) conducted by Koiondemand.com* (“KOD”) on behalf of a seller (each, a “Seller”) of real property or note(s) secured by real property (each, a “Property”, and collectively, the “Properties”). As used in these Terms, each person who participates in any Event is a “Participant.” As used in these Terms, the terms “KOD”, “Seller” and “Participant” shall also refer to the respective principals, agents, and affiliates of each. The “Winning Buyer” is the Participant that (a) submits the highest net bid in an auction Event and is acknowledged by KOD by email or telephone as the winning bidder, or (b) submits any offer during any Event that is accepted by Seller. As used in these Terms, each bid or offer submitted in any Event is an “Offer”.
KOD conducts Events solely on behalf of Seller, and is not acting as an agent for any Participant in any capacity. By registering for any Event at www.koiondemand.com (“Website”), Participant acknowledges having read, agreed to and accepted these Terms. By submitting an Offer on a Property, Participant is deemed to have accepted the terms and conditions that were 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.
1. REGISTRATION PROCESS
Participants must register in order to participate in any Event, and as part of the registration process, Participants may be required to place a deposit to secure compliance with these Terms (“Initial Participation Deposit”). The amount of the Initial Participation Deposit may vary and will be disclosed at time of registration. The amount of the Initial Participation Deposit or deposit method may be modified in KOD’s discretion or at Seller’s request. In most cases, Participants can satisfy the Initial Participation Deposit requirement by placing an authorization and hold on a major credit card or PayPal account in the amount of the Initial Participation Deposit or by placing the Initial Participation Deposit with a third party escrow holder (“Deposit Servicer”) selected by KOD. Participant may be responsible for any costs associated with the receipt, disbursement or maintenance of the Initial Participation Deposit by Deposit Servicer. Further information regarding the Initial Participation Deposit for any particular Event or Property will be provided during the registration process or after on the Website.
The Winning Buyer’s Initial Participation Deposit may be applied towards the required “Earnest Money Deposit” (defined below), unless the Initial Participation Deposit was made by a credit card hold, in which case such hold will be released after confirmation that the “Purchase Documents” (defined below) have been fully executed and the Earnest Money Deposit has been timely received. All Initial Participation Deposits from other Participants will be released after the Event.
KOD or Seller may require Participants to show proof of readily available funds and/or complete a qualification form prior to registration approval. KOD or Seller may require additional proof of funds in order to submit an Offer above the amount of proof of funds previously approved. The proof of funds requirement may vary by Participant or in Seller’s or KOD’s discretion.
When a Property is eligible to be financed, Participants will be required to state whether they expect to finance the purchase. Participants who expect to finance will be required to obtain pre-approval and provide information regarding the loan to KOD and/or Seller. Applicable financing terms and conditions can be reviewed on each Property Page.
Participants will be emailed once their registration is complete and approved, and it is Participant’s responsibility to ensure that the registration is complete and approved prior to the start of the Event.
Non-U.S. Participants may be permitted to register and submit Offers in the Event; however, any purchase by such Participants must be “all cash” and may not be financed unless Seller otherwise agrees.
Participant authorizes KOD to contact Participant by phone or email, as provided during registration. KOD may modify, waive, or impose additional registration requirements for certain Participants in its sole and absolute discretion or at the request of Seller.
2. DUE DILIGENCE
Purchase Documents. Prior to submitting an Offer, Participants must review the purchase and sale agreement, any applicable addenda, Seller’s disclosure documentation, and all other transaction documents (collectively, “Purchase Documents”). The Purchase Documents for each Property can be reviewed on the Property Page and are non-negotiable. All Offers should be based on the terms set forth in the posted Purchase Documents, and Winning Buyers shall accept such terms.
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, importing license, encumbrances, and all other aspects. Participant assumes all risks associated with any such inspection. In some circumstances Seller 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 KOD. Participants are encouraged to consult with a licensed real estate broker, contractor, attorney, financial advisor, tax advisor, and/or other professional and fully investigate public records.
In connection with any due diligence, inspection, visit and/or investigation of the Property, Participants shall, and are responsible for ensuring that any person or entity acting on Participant’s behalf shall, (a) refrain from placing or permitting any new liens on the Property, (b) repair all damage arising from inspections, (c) indemnify, defend and hold harmless Seller and KOD from all liability, claims, demands, damages and/or costs directly or indirectly arising from inspections, and (d) carry any required policies of liability, workers’ compensation, and other applicable insurance defending and protecting Seller and KOD from liability for any injuries to persons or property occurring during any inspection.
Property Value. The term “Previously Valued To” displayed on the Property Page for a Property refers to the higher of (a) the appraised value of the Property in connection with the most recent mortgage on the Property, (b) a recent asking price, (c) the assessed value, or (d) a recent broker price opinion.
Irrevocability of Offers. All Offers submitted during any Event are irrevocable.
Signing Purchase Documents. Winning Buyers will be contacted by an KOD representative with the contact information provided during registration. The final Purchase Documents will then be emailed to Winning Buyer for electronic signature unless otherwise directed by Seller. Winning Buyer must sign the Purchase Documents within 2 hours after they are sent by KOD.
If a Winning Buyer cannot be reached within 2 hours of KOD’s acknowledgment of the Winning Buyer, or Winning Buyer fails to timely execute the Purchase Documents, KOD or Seller may declare Winning Buyer to be in default. In the event of such a declaration, Winning Buyer’s Offer shall be null and void and KOD and Seller shall have absolutely no further liability or obligation to that Participant. In addition, such Winning Buyer shall be subject to liquidated damages as set forth in these Terms.
Payment of Earnest Money Deposit and Remaining Balance. The Purchase Documents for each Property will require Winning Buyer 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 for each Property. The Earnest Money Deposit must be received (including for Properties sold “subject to confirmation”) no later than 5:00 PM in the time zone where the Property is located on the first business day after the Winning Buyer is acknowledged by KOD, or if a different time frame is specified the Purchase Documents, no later than such specified time frame. Winning Buyer’s Initial Participation Deposit may be applied to the required Earnest Money Deposit amount (unless the Initial Participation Deposit was made by a credit card hold). The balance of the Total Purchase Price, along with all other costs and/or fees, must be paid as required in the Purchase Documents.
If the Earnest Money Deposit is not received as set forth above, then KOD or Seller may declare Winning Buyer to be in default. In such event, Winning Buyer shall be subject to liquidated damages as set forth in these Terms.
Entity Buyers. Winning Buyers wanting to take title in the name of an entity (not as an individual) may be required to provide the necessary entity formation documents and resolutions authorizing the purchase within the timeframe specified by KOD (which may be before or after the Event, in KOD’s sole discretion). Seller and/or the escrow/closing agent may require additional documentation prior to closing.
Buyer’s Premium and Total Purchase Price. The actual total purchase price (“Total Purchase Price”) for a Property will be equal to the Offer amount plus a buyer’s premium (“Buyer’s Premium”). The amount of the Buyer’s Premium may vary and will be disclosed on the Property Page. The Total Purchase Price will not include other amounts payable by Winning Buyer during closing, such as escrow/closing fees, property taxes, or insurance, as more fully set forth in the Purchase Documents.
Subject to Confirmation. Seller may designate certain Offers as “subject to confirmation” in its sole and absolute discretion, in which case Winning Buyer’s purchase is subject to, and contingent upon, Seller approving the purchase in its sole and absolute discretion within the time period set forth in the Purchase Documents. Please review the applicable Property Page and the Purchase Documents for further information. Winning Buyer will receive a refund of monies deposited if Seller chooses not to approve the purchase.
Short Sale Properties. Some Properties involve a sale in which the proceeds from selling the Property may fall short of the balance of debts secured by liens against the Property whereby the lien holders are being asked to agree to release their lien on the real estate and accept less than the amount owed on the debt (“Short Sale”). All Offers for Short Sale Properties are subject to the approval of all lien holders being asked to agree to release their lien on the Property (“Short Sale Lender’s Consent”). If Short Sale Lender’s Consent is not received, the transaction will be cancelled and the Earnest Money Deposit will be returned to Participant. Please review the applicable Property Page and Purchase Documents for further information.
Reserve Auction Events. Except for Properties noted “Absolute Auction” or “Minimum Bid Auction”, all Properties in auction Events have a minimum selling price established by Seller (“Reserve Price”). The starting bid is not the Reserve Price. Except where prohibited by law, KOD may counter bid on behalf of Seller on any Property up to the amount of the Reserve Price (and no such bid will result in a sale of the Property). If the Reserve Price is not met, Seller is under no obligation to sell the Property; however, Seller may accept a bid that is below the Reserve Price in its sole discretion.
Minimum Bid Auction Events. Properties to be auctioned without a Reserve Price but with a minimum bid will be listed in a “Minimum Bid Auction” and will be sold to the highest bidder that bids at or above the minimum bid amount.
Absolute Auction Events. Properties to be auctioned without a Reserve Price or minimum bid will be listed in an “Absolute Auction” and will be sold to the highest bidder.
Custom Auction Events. For Properties to be auctioned in a custom auction Event, Participants are invited by KOD or Seller to submit a non-binding indicative bid (“Indicative Bid”) before Seller commits to auction the Property on the Website. 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 Seller. If Seller decides to auction the Property, Seller will review the Indicative Bids and use them to determine the Participants that Seller will invite to participate in the auction. Invitations to the auction are granted in Seller’s sole and absolute discretion. Please review the applicable Property Page and the Purchase Documents for further information.
Extension of Auction Time. In order to allow final bids to be properly input and processed during auction Events, KOD may extend the time for bidding on any Property in its discretion to allow for additional bids. Once KOD allows time to elapse, then the bidding will be closed.
4. BROKER/AGENT PARTICIPATION
We invite real estate broker and agent participation. A cooperating broker commission (based on the Winning Buyer’s Offer amount) may be offered on some Properties. Any such cooperating broker commission will only be paid to cooperating brokers (a) who have duly registered as a Broker/Agent through the Website prior to the conclusion of the Event, (b) who have been identified by their clients, (c) who have timely provided all information and documents requested by KOD and/or the escrow/closing agent and (d) whose clients successfully purchase the Property and close the transaction.
For certain Events, a registered broker/agent may submit Offers on behalf of a client identified to KOD prior to Offer submission. By submitting an Offer on behalf of a client, the broker/agent (i) represents and warrants that the broker/agent has received all client authorizations and satisfied all legal requirements necessary to represent the client and submit Offers on the client’s behalf, (ii) acknowledges that any Offer submitted will be binding upon the broker/agent and the client identified at registration to the same extent as if the client had submitted the Offer personally, and (iii) agrees to indemnify and hold harmless KOD from any breach of these representations or warranties.
PLEASE SEE THE WEBSITE AND PROPERTY PAGES FOR SPECIFIC COOPERATING BROKER COMMISSION AMOUNTS, IF ANY, RELATED TO SPECIFIC PROPERTIES. PLEASE ALSO SEE THE BROKER/AGENT REGISTRATION PORTAL ON THE WEBSITE FOR ADDITIONAL TERMS AND CONDITIONS.
5. GENERAL INFORMATION
Seller and KOD 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, and Initial Participation Deposit amounts).
KOD may postpone or cancel the Event, rearrange the order or sequence of the Properties in the Event, modify the Terms by posting notice of modification on the Property Page, remove any Property from the Event, or reject any or all Offers.
KOD, Sellers 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 Florida except in the case of Events involving real property located in California. With respect to real property located in California, 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 Seller and Participant, no obligation to sell shall be binding on Seller unless and until the Purchase Documents have been signed and delivered by Seller and the Earnest Money Deposit has been received as required hereunder. After the Purchase Documents have been fully executed, the Purchase Documents shall govern the relationship between Winning Buyer and Seller.
6. DISCLAIMERS; PARTICIPANT REPRESENTATIONS; CANCELLATION; LIQUIDATED DAMAGES
KOD makes no representations or warranties as to the accuracy or completeness of any information contained on the Website, any Property Page, or as otherwise made available by KOD, Seller or Seller’s broker. The Website, any information or software therein, and KOD’S Offer submission services are provided on an “as is, as available” basis. NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE WEBSITE, ANY INFORMATION OR SOFTWARE THEREIN, OR KOD’S OFFER SUBMISSION SERVICES, AND KOD EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES. EACH PARTICIPANT AGREES TO USE THE WEBSITE AND KOD’S OFFER SUBMISSION SERVICES AT PARTICIPANT’S OWN RISK. KOD makes no representation or warranty relating to management of the purchase and sale process.
KOD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY. EACH PARTICIPANT HEREBY RELEASES KOD AND ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS AND AGENTS (“REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT ANY SUCH PARTICIPANT MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST KOD OR ANY OF ITS REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING ANY PROPERTY. 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 KOD. 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 WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
NO REPRESENTATION OR WARRANTY IS MADE BY KOD RELATING TO THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF ANY FORM PURCHASE DOCUMENTS PROVIDED OR SUPPLIED BY KOD. EACH PARTICIPANT REPRESENTS AND WARRANTS THAT PARTICIPANT HAS CONSULTED WITH, HAD THE OPPORTUNITY TO CONSULT WITH, OR HEREBY WAIVES THE RIGHT TO CONSULT WITH COUNSEL RELATING TO THE LEGAL AND TAX CONSEQUENCES OF ANY SUCH FORMS.
Each Participant represents and warrants that: (a) Participant is not located in a country embargoed by the United States of America; (b) neither Participant, its affiliates, members, directors or other equity owners (excluding holders of publicly traded shares), and none of their principal officers and employees (i) is listed as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control (“OFAC”), (ii) is a person or entity with whom U.S. persons or entities are restricted from doing business under OFAC regulations or any other statute or executive order (including the September 24, 2001 “Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), or (iii) is engaged in prohibited dealings or transactions with any such persons or entities; and (c) Participant (i) is a sophisticated purchaser, (ii) is capable of evaluating the merits and risks of purchasing a Property on the Website, and (iii) understands and is able to bear the economic risks of purchasing a Property on the Website, including, without limitation, a total loss of investment and/or the risk that Participant may be required to hold such Property for an indefinite period of time.
CANCELLATION; LIQUIDATED DAMAGES. IF WINNING BUYER BREACHES THESE TERMS, WINNING BUYER’S OFFER MAY BE REJECTED BY KOD AND/OR SELLER AND WINNING BUYER’S INITIAL PARTICIPATION DEPOSIT MAY BE RETAINED BY KOD AND/OR SELLER (AND IF THE INITIAL PARTICIPATION DEPOSIT WAS MADE BY A CREDIT CARD HOLD, KOD MAY CHARGE WINNING BUYER’S CREDIT CARD THE AMOUNT OF THE INITIAL PARTICIPATION DEPOSIT) AS LIQUIDATED DAMAGES, AND THE PROPERTY MAY BE IMMEDIATELY SOLD TO ANOTHER PARTICIPANT OR PLACED IN ANOTHER EVENT. PARTICIPANT HEREBY ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM A PARTICIPANT’S BREACH OF THESE TERMS WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE. ALL PARTICIPANTS AGREE THAT THE INITIAL PARTICIPATION DEPOSIT IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO KOD AND/OR SELLER AND IS NOT A PENALTY OR FORFEITURE.
7. ARBITRATION OF DISPUTES
Each Participant irrevocably agrees: (a) to waive all rights to trial in a court before a judge or jury on all claims between KOD and Participant; and (b) that all disputes and claims between KOD and Participant will be determined exclusively by final and binding arbitration in Orange County, California before one arbitrator. Such arbitrator will not have the authority to consolidate the claims of other Participants or site users and will not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of Participants in one arbitration proceeding. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Participant and KOD shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute between Participant and KOD relating to the interpretation, applicability, enforceability or formation of this agreement including, but not limited to any claim that all or any part of this agreement is void or voidable. Judgment on the award may be entered in any court having jurisdiction.
In any lawsuit or arbitration arising out of or related to these Terms, the judge or arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the lawsuit or arbitration. If the judge or arbitrator determines a party to be a prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the judge or arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the lawsuit or arbitration.
∗Koiondemand.com operates under a different trade name in some states. See koiondemand.com/lp/legal/licensing/.
These Auction Terms were last updated Jun 26, 2015, and replaced the prior Auction Terms published on Nov 6, 2014.