ACV TERMS OF SERVICE
Effective July 1, 2019
- Eligible Participants. ACV Auctions provides a business-to-business online marketplace. Only representatives of licensed dealerships are eligible to participate. By using the Services you represent and warrant that you are a licensed dealer of motor vehicles and are legally eligible to purchase or sell wholesale vehicles for resale. A state issued dealer’s license, applicable resale certificate(s), and federal tax identification are among the documents and information a dealership will need to provide to utilize the Services.
- Registration. To be eligible to access the Services, you must complete ACV Auctions’ online registration process. Upon receipt and approval of your registration documents, you and your designated authorized representatives (“Authorized Representatives”) will be issued unique names and passwords to access the Services. You are liable and responsible for all actions, omissions and any failure to act of your Authorized Representatives in connection with your Authorized Representatives’ use of the Services. You represent and warrant that all information that you provide to ACV Auctions is accurate and complete and that you will notify us in writing of any changes to the information provided. You hereby authorize ACV Auctions to share the information you provide to us (including, without limitation, financial information) with ACV Auctions partners solely to the extent such information is needed to provide the Services. You agree not to give anyone access to the Services other than your Authorized Representatives. Further, you represent and warrant to ACV Auctions that: (a) you and your Authorized Representatives are in compliance with and shall comply with all laws and regulations that apply to your business; and (b) you and your Authorized Representatives have secured and will maintain all permits, licenses and governmental approvals required to operate your business including, without limitation, as required to access and participate in the Services. We reserve the right to temporarily or permanently suspend your access rights and/or the access rights of any of your Authorized Representatives at any time in our sole and absolute discretion.
- Permitted Use. You agree that you will use the Services solely for your internal business purposes and will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted by Section 25 herein), distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to your Authorized Representatives or as otherwise contemplated by these Terms; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates third party privacy rights; (iv) send or store malicious code or viruses; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Services or its related systems or networks. You further agree that you will not (i) modify, copy or create derivative works based on the Services; (ii) frame or mirror any content forming part of the Services; (iii) reverse engineer or decompile the Services; (iv) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services; or (v) permit or authorize any third party to do any of the above at your direction or on your behalf.
- ACV Auctions’ Role. ACV Auctions provides services to facilitate the exchange of vehicles between Buyers and Sellers. ACV Auctions does not take title to the vehicles listed for sale via the Services. ACV Auctions is neither the Buyer nor the Seller of the vehicles listed for sale. As a commercial party, you should research the condition and value of the vehicle and the terms of sale before bidding. ACV Auctions is not a party to the vehicle sale contract, but is a third party beneficiary of the contract, entitled to the parties’ performance and to seek legal remedies for the parties’ breach. You agree that any legal claims arising out of a transaction will be between you and the other party (either Buyer or Seller) in the transaction and not against ACV Auctions or any ACV Auctions partner.
- Listing, Bidding and Purchase. Please see ACV Auctions’ FAQ page (https://www.acvauctions.com/features) for detailed information regarding the listing, bidding and sale process.
- Seller Obligations. The Seller represents, warrants and agrees to the following terms:
- Seller is a licensed dealer of motor vehicles;
- any amounts owed to ACV Auctions or its affiliates by Seller may be deducted from any proceeds due Seller;
- ACV Auctions may stop payment or refuse to authorize payment to Seller pursuant to a right of offset;
- risk of loss for a vehicle remains with the Seller as long as the vehicle is at Seller’s premises. Once the Buyer retrieves the vehicle, or otherwise causes the vehicle to be removed from Seller’s premises, the risk of loss for the vehicle is transferred to the Buyer or its agents;
- it is responsible for completion and execution of the required odometer mileage statement pertaining to the vehicle and on the certificate of title;
- that it is the true and lawful owner of the vehicle except as set forth in the vehicle’s announcements;
- that the vehicle is free from all liens and encumbrances except as set forth in the vehicle’s announcements;
- that it has full rights, power and authority to sell and transfer title to the Buyer in accordance with the ACV Auctions Title Policy (https://www.acvauctions.com/title-policy) except as set forth in the vehicle’s announcements;
- a $500 cancellation fee will be assessed to a Seller if a transaction is cancelled or abandoned after a Buyer's bid either meets the reserve or is otherwise accepted;
- unless otherwise agreed, Seller will hold and make the sold vehicle available on its lot for at least seven business days after the sale of the vehicle for the Buyer or its agent to pick up;
- the number of vehicles posted by a Seller may be limited by ACV Auctions during an introductory period;
- unless otherwise agreed, Seller will permit ACV Auctions to inspect on Seller’s lot the vehicles Seller intends to sell through the Services, for the purpose of creating a vehicle condition report; and
- Seller shall abide by and comply with all applicable laws, rules and regulations, including but not limited to all rules and regulations set forth by the applicable department of motor vehicles.
- Buyer Obligations. The Buyer represents, warrants and agrees to the following terms:
- that it is a licensed motor vehicle dealer in good standing;
- Buyer will purchase the vehicle for the Buyer’s bid price which can be accepted by the Seller until 3:00AM Eastern time of the day after the auction is launched;
- Buyer will not resell the vehicle until good funds have been transmitted to ACV Auctions;
- Buyer will pick up the vehicle within seven business days;
- Buyer will select a payment option by 11:59 pm same day the bid is accepted by the Seller or this sale may be considered null and void at ACV Auctions’ discretion; in such event Buyer may be subject to financial penalty and/or suspension of Buyer’s account access;
- that no stop payment of Buyer’s payment to ACV Auctions shall be honored;
- that any stop payment order shall be deemed by the parties to be evidence of fraud existing at the time the transaction was consummated and shall be construed by the parties as an intent to defraud in order to consummate the transaction;
- that it will abide by the timeframes for delivery of title set forth in ACV Auctions’ titles policy;
- that ACV Auctions may deposit any payment immediately, regardless of whether the vehicle’s certificate of title has been submitted by Seller;
- that Buyer is responsible for pickup and transport, or may elect to utilize ACV Transportation LLC services;
- that it is solvent;
- that the vehicle is purchased solely for resale;
- that the vehicle is purchased for resale in the form of tangible personal property in the regular course of business and is the sort usually purchased by Buyer for resale;
- that if it is planning to export a vehicle, Buyer is responsible for ensuring satisfaction of all export requirements and all import requirements of the destination country;
- that in the event that the vehicle is used for any purpose other than for resale, Buyer will pay directly to the proper taxing authorities such sale or use tax as may then be accrued and become payable;
- that it holds a retail sales tax registration, certificate, license, or other permit, issued by the sales taxing authority of Seller’s state, county, and country as appropriate;
- title to the vehicle will not pass to Buyer until complete payment has been received by ACV Auctions and the title has been received from the Seller;
- ACV Auctions reserves the right to limit the number of vehicles purchased by a Buyer at any time
- failure to remit payment within two business days will result in a fee equal to the total buy fee;
- Buyer is subject to account suspension at the discretion of ACV Auctions;
- Buyer will not attempt to manipulate bids, intentionally bid up the price of any vehicle, or otherwise fraudulently bid on any vehicle; and
- Buyer shall abide by and comply with all applicable laws, rules and regulations, including but not limited to all rules and regulations set forth by the applicable department of motor vehicles.
- Transport. If you elect through the Services to arrange for the transportation of any vehicles purchased through the Services, such transportation shall be arranged by ACV Transportation LLC, an authorized affiliate of ACV Auctions, and shall be governed exclusively by the terms and conditions entered into by you and ACV Transportation LLC located at https://www.acvauctions.com/transportation-terms. You agree to pay ACV Auctions for any transportation costs due to ACV Transportation LLC, and ACV Auctions will remit funds to ACV Transportation LLC.
- Payment Terms. In consideration of access to the Services, Buyer and Seller each agree
to pay ACV Auctions or partners (as applicable) all fees and charges assessed by ACV
Auctions and/or the ACV Auctions partners for access to the Services (collectively, the
“Fees”). Fees are subject to change without notice. Please request a current list of ACV
Auctions’ Fees from your assigned account manager or email email@example.com.
The purchase price of the vehicle, service charges, plus all applicable taxes and Fees
payable by Buyer in connection with a transaction is the “Total Payment Amount.” All
Fees are non-refundable.
Buyer shall pay ACV Auctions the Total Payment Amount within two (2) business days after the Buyer’s bid is accepted as the winning bid (the “Payment Due Date”). Payment shall be made in U.S. dollars by, ACH electronic funds transfer, check, floor plan, or by another financing arrangement acceptable to ACV Auctions (each a “Payment Method”). If payment is not received by the Payment Due Date, the amount owing will be automatically debited using the default payment method selected by the Buyer. ACV Auctions reserves the right to specify the type of Payment Method it will accept from the Buyer in our sole and absolute discretion. In addition to whatever rights of set-off ACV Auctions may have in any jurisdiction where vehicles are sold, if Buyer fails to pay Fees or other amounts owing when due to ACV Auctions or any ACV Auctions partner, ACV Auctions will be entitled to immediately set off the amount owed by Buyer from any funds due from ACV Auctions to Buyer. In addition, if you fail to pay the Total Payment Amount by the Payment Due Date, we may: (a) electronically debit your bank account or floor plan account in accordance with the default payment method selected by you or another account made available to ACV Auctions; (b) withhold title documents until all amounts owed have been paid; (c) cancel the sale transaction; (d) charge interest on any past due amounts at the rate of one and one half (1.5%) percent per month, calculated in U.S. dollars, or the maximum rate allowed by law, whichever is less; and/or (e) pursue any other remedy or relief permitted by law. If ACV Auctions accepts payment from Buyer by electronic check, Buyer authorizes ACV Auctions to initiate debit entries to its account at the financial institution on which the electronic check was written. The electronic check debit authorization will remain in force until we have received written notice from you of its termination. ACV Auctions reserves the right to decline payment by electronic check at any time and for any reason. Any payment that is withdrawn by Buyer or its bank, rejected or returned for non-sufficient funds (“NSF”) must be settled and replaced immediately. NSF transactions will be subject to a service charge up to the maximum amount allowed by law and shall be immediately due and payable.
ACV Auctions will pay Seller the purchase price of the vehicle less the Fees due from Seller to ACV Auctions after receipt of a clear, transferable title from Seller.
You agree to pay all costs including, without limitation, attorney fees, court costs and other expenses reasonably incurred by ACV Auctions or an ACV Auctions partner, to collect any monies owing by you.
- Arbitration. If, upon pickup and inspection of the vehicle, the Buyer discovers a defect that is allowed to be arbitrated pursuant to the ACV Auctions Arbitration Policy, Buyer may pursue a remedy through the arbitration process as set forth in such policy. Sellers who repeatedly fail to make required announcements or Buyers who repeatedly submit questionable arbitration claims may have their auction privileges temporarily or permanently suspended.
- Data. ACV has the right to use certain Customer generated information, content, photographs and vehicle data for the limited use of promoting and carrying out the Services requested by such Customer. Customers and their representative dealerships grant ACV a limited license to utilize non-confidential information for the general purpose of promoting and providing Services to our Customers, and this license extends to trusted third parties with whom we work. Customers agree that this permission is royalty free, irrevocable and worldwide for so long as Customer Information is held by ACV Auctions. All data collected by ACV Auctions related to vehicles, and all transaction data related to the Services shall be owned by ACV Auctions without restrictions on its use of such data.
- ACV Auctions Intellectual Property. ACV Auctions reserves all rights, title, and interest in and to the Services, the ACV Auctions trademarks, logos and other brand features. These Terms do not grant Customers any rights in the Services except as expressly set forth herein. ACV Auctions’ trademarks may not be used in connection with any product, service, or marketing without the prior written consent of ACV Auctions. ACV Auctions welcomes feedback, but reserves the right to use comments or suggestions without any obligation to the Customer.
- Availability, Errors and Inaccuracies. ACV Auctions is constantly updating the Services, and may experience delays in updating information on the Services. The information found on the Services may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Services, and we cannot guarantee the accuracy or completeness of any information found on the Services. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
- Links to Other Web Sites. The Services may contain links to third party web sites or services that are not owned or controlled by ACV Auctions. ACV Auctions has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that ACV Auctions shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
- Termination. Customers are free to stop using our Services at any time. We also reserve the right to suspend or end the Services at any time at our discretion and without notice. For example, we may suspend or terminate a Customer’s access and use of the Services if they are not complying with these Terms, or use the Services in a manner that would cause us legal liability, disrupt the Services or disrupt others’ use of the Services. ACV Auctions reserves the right to terminate and delete your account.
- DISCLAIMER OF WARRANTIES AND LIABILITIES. ACV AUCTIONS AND THE ACV AUCTIONS AFFILIATES PROVIDE THE SERVICES TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES RELATED TO CUSTOMER’S AND/OR AUTHORIZED REPRESENTATIVE’S USE OF AND ACCESS TO THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES WHICH MAY BE CREATED THROUGH COURSE OF DEALING.
- CUSTOMER AGREES THAT ACV AUCTIONS AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER, ACTUAL OR OTHERWISE, TO CUSTOMER OR ITS AUTHORIZED REPRESENTATIVES BASED ON ANY OF THE FOLLOWING: (i) ANY DELAY, INTERRUPTION IN USE OF, FAILURE IN OR BREAKDOWN OF THE SERVICES OR ERRORS OR DEFECTS IN TRANSMISSION OCCURRING IN THE COURSE OF ACCESSING OR USING THE SERVICES; (ii) ANY UNLAWFUL OR UNAUTHORIZED USE OF THE SERVICES; (iii) ANY LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR INFORMATION; (iv) ANY CLAIM RESULTING FROM THE TERMINATION OF ACCESS TO THE SERVICES OR (v) ANY CLAIM RELATED TO ANY VEHICLE SOLD OR BOUGHT USING THE SERVICES, EXCEPT AS MAY BE SPECIFIED IN THE GO GREEN POLICY FOUND WITHIN ACV AUCTIONS’ ARBITRATION POLICY.
- Indemnity. Each Customer agrees at their own expense to defend, indemnify, and hold
ACV Auctions and its affiliates, and each of their directors, officers, employees and
agents, harmless from and against any loss, damage, liability, demand, lawsuit, debt,
charge, action, penalty, interest, claim, cost, tax or expense whatsoever, including without
limitation any and all out-of-pocket costs and actual legal and accounting fees, duties and
bonds, which ACV Auctions may incur, suffer or be required to pay as a result of or
relating to, arising out of, or in connection with (a) your use of the Services; (b) your
violation of the Terms; (c) your violation of any third party right, including, but not
limited to, any intellectual property right, right of attribution, association, integrity,
publicity, confidentiality, property or privacy right; (d) any claim in connection with a
vehicle; or (d) any claim that Customer information, or your use the property of others,
may have caused or did cause damage to a third party, including, but not limited to,
claims that Customer information, or your use of the property of others, infringe the
rights of others or caused damages to others.
Customer also agrees to indemnify ACV Auctions for reasonable legal and accounting fees, costs, and expenses incurred in enforcing the rights of ACV Auctions against Customer under these Terms.
- Representations Regarding Taxes. Buyer certifies that it holds the appropriate documentation issued by the sales tax authority of the state, province, or locality of its business or where it purchases vehicles, as applicable, which exempts Buyer from the payment of sales tax, and warrants that it will provide a copy of such applicable documentation to ACV Auctions upon registration, at any time upon request, and as necessary to maintain the validity of such documentation. In the event that vehicles or other products purchased are used for any purpose other than for resale, Buyer will pay directly to the proper taxing authorities such sale or use tax as may then accrue and be due and payable.
- Dispute Resolution. Any controversy or claim between Customer and ACV Auctions
arising out of or relating to these Terms or the validity, inducement, or breach hereof
(each such controversy or claim is hereinafter referred to as a "Dispute"), shall be settled
First, the parties involved in the Dispute shall attempt to resolve any Dispute prior to commencing the procedures set forth below.
If after seven days the parties are unable to resolve the Dispute, the parties shall submit to non-binding mediation which shall take place for a period of one day in Erie County, New York before a mediator that is mutually acceptable to the parties. If the parties are unable to agree on the selection of a mediator, a mediator will be chosen by an arbitrator selected pursuant to the rules of the American Arbitration Association ("AAA") who will then select such mediator from a list of distinguished neutral mediators maintained by the AAA. The mediator shall confer with the parties to design procedures to conclude the mediation within no more than 30 days after initiation. Each party has the right to pursue any provisional relief from the appropriate court, such as attachment, preliminary injunction, specific performance (the parties acknowledging that monetary damages may not be sufficient remedy), replevin, etc. to avoid irreparable harm, maintain the status quo, or preserve the subject matter of the Dispute even though mediation has not been commenced or completed.
Customer may only resolve disputes with ACV Auctions on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed, and Customer expressly disclaims any right to bring or participate in any such action. If the parties are unable to resolve the Dispute within the 45 day period referred to above, or in the event that the agreement to arbitrate is found not to apply to Customer or Customer’s claim, Customer and ACV Auctions agree that any judicial proceeding will be brought in the federal or state courts of Erie County, New York. Both Customer and ACV Auctions consent to venue and personal jurisdiction there.
- Controlling Law. The Services provided hereunder are performed in the State of New York and these Terms will be governed by New York law except for its conflicts of laws principles. You represent that you have sufficient authority and all right and full power to agree to these Terms and to perform your respective obligations under these Terms on behalf of yourself or on behalf of the organization for whom you are acting, as the case may be.
- Entire Agreement. These Terms constitute the entire agreement between you and ACV Auctions with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms.
- Waiver, Severability & Assignment. ACV Auctions’ failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms without ACV Auctions’ prior written consent, and any such attempt will be void. ACV Auctions may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
- Changes. We reserve the right, at our sole discretion, to modify or replace these Terms at any time with respect to all sales occurring after such modifications are effective. Modifications will take effect immediately upon posting of the revised Terms, provided however, if a change is material we will provide at least 30 days’ notice prior to such modifications taking effect. What constitutes a material modification will be determined at our sole discretion. By continuing to access or use our Service after any modifications become effective, you agree to be bound by the revised terms.
- Contact Us, Notices. Notices must be sent via first class mail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable
account email address and are deemed given when sent. Notices to ACV Auctions must
be sent to:
ACV Auctions, Inc.
640 Ellicott St.
Buffalo, NY 14203