This is a binding legal agreement between you, your business and your representatives (“Consignor”) and legal affiliates of ACV Auctions Inc. that provide services at physical auctions (each a “Service Provider,” collectively the “Service Providers,” and, together with ACV Auctions Inc., “ACV”). These terms of service (“Terms”) cover Consignor’s use and access to the services available from Service Providers through which Consignor may sell vehicles and any services provided related thereto as further described herein (the “Services”). These Terms and any amendments to them will be effective as of the date specified herein or in the amended Terms. By using or accessing the Services, Consignor agrees to be bound by the current Terms.
1. These Terms set forth the terms and conditions under which Consignor can arrange for Services, which include the pick-up, storage, repair and/or appearance reconditioning of motor vehicles (“Consigned Vehicles”) owned or managed by Consignor, in preparation for the sale at a Service Provider’s physical auction location (s) (each, a “Physical Auction”) and through third party online remarketing platforms (each, an “Online Platform”), including the online remarketing platform provided by ACV Auctions Inc. (the “ACV Platform”).
2. Consignment.
a. General Terms.
i. Consignor may furnish vehicles to Service Provider on consignment in such mix and quantity and at such times, as Consignor, in its sole discretion, deems appropriate. Consigned Vehicles may be either delivered to Service Provider by Consignor or picked up as determined by Consignor and Service Provider. Service Provider does not take title to, purchase or sell Consigned Vehicles. Rather, Service Provider facilitates the exchange of Consigned Vehicles between Consignor and the purchaser thereof. All Consigned Vehicles offered for sale by Consignor hereunder are offered for sale by Service Provider on Consignor’s behalf.
ii. Service Provider agrees to hold and care for the Consigned Vehicles as the property of Consignor or its customers as respectively indicated on the certificate of title (the “Owner”). Service Provider acknowledges and agrees that all right, title and interest in and to the Consigned Vehicles shall remain vested in Owner. Service Provider further acknowledges that, except as otherwise required by state law or regulation or as otherwise set forth in these Terms, the title to the Consigned Vehicles shall pass directly from the Owner to the entity purchasing the Consigned Vehicle from the Owner thereof, and Service Provider shall not acquire any right, title or interest in or to the Consigned Vehicles.
iii. At such times that Consignor requests consignment services, Service Provider shall at all times store the Consigned Vehicles at such Physical Auction location(s) or other location(s) as may be mutually agreed upon between Consignor and Service Provider. Service Provider acknowledges that the Consigned Vehicles shall be subject to the direction and control of Consignor at all times.
iv. Upon request from Consignor to Service Provider, Service Provider shall be authorized to pick up the designated Consigned Vehicle, in which case, Service Provider shall arrange for the Consigned Vehicle to be transported to the mutually agreed upon location or shall follow such other instructions as are reasonably provided by Consignor. If, for any reason, Service Provider is unable to pick up a Consigned Vehicle within three (3) business days from Consignor’s request, Service Provider shall promptly notify Consignor. If ACV’s affiliate, ACV Transportation, LLC, facilitates and/or provides transportation services under this Agreement, the ACV Transportation, LLC Terms of Service located at https://www.acvauctions.com/legal/acv-transportation-llc shall apply to such services.
v. Consignor is responsible for any and all representations regarding mileage, including completion and execution of the required odometer mileage statement pertaining to any Consigned Vehicle on the invoice for such Consigned Vehicle, on the certificate of title for such Consigned Vehicle, and/or on any separate odometer verification statement attached to or accompanying such certificate of title.
vi. Unless otherwise set forth in these Terms, the arbitration rules of the National Automobile Auction Association (“NAAA”) will apply to all Physical Auction sales hereunder.
vii. For sales of Consigned Vehicles through any Online Platform other than the ACV Platform, the applicable terms of service published at the time of sale by such Online Platform provider shall apply. For sales of Consigned Vehicles through the ACV Platform, the ACV terms of service located at www.acvauctions.com/legal shall apply.
viii. Service Provider agrees not to use, and will not permit any of its employees, agents, or any third party to use, any Consigned Vehicle (other than the Owner, Consignor or its employees and agents), except in the furtherance of Service Provider’s obligations under these Terms.
ix. Service Provider will not sell, mortgage, pledge, subject to a lien or security interest or attempt to do or permit any of the foregoing, or otherwise encumber or convey or transfer any interest in any Consigned Vehicle except as permitted under these Terms.
b. Certificate of Title and Registration. Consignor will forward to Service Provider the certificate of title and/or registration for Consigned Vehicles, together with any other documents in possession of Consignor to effect transfer upon sale. If the Consignor's representative will not be attending the sale, all documents necessary to effect transfer upon sale shall be endorsed by Consignor as required, prior to their being forwarded to Service Provider. If the Consignor's representative does attend the sale, endorsement of documents necessary to effect transfer upon sale may be accomplished by the representative on the day of the sale. Consignor agrees to provide a completed Federal Odometer Disclosure Statement along with title document for each Consigned Vehicle being sold. If for any reason Consignor is unable to complete the Federal Odometer Disclosure Statement or the endorsement of documents necessary to effect title transfer, Service Provider may, at Consignor’s request, execute the Federal Odometer Disclosure Statement based on information provided by Consignor to Service Provider and endorse all documents necessary to effect title transfer, on Consignor’s behalf, pursuant to the Power of Attorney described in Section 5 hereof. Service Provider will provide all executed title copies to Consignor with the block ticket or other appropriate paperwork.
c. Sale of Consigned Vehicles.
i. Service Provider agrees to use commercially reasonable efforts to sell Consigned Vehicles on Consignor’s behalf. Service Provider will sell the Consigned Vehicles to buyers that have warranted to Consignor that such buyers are properly licensed within the jurisdiction or state in which the sale takes place. Service Provider shall withdraw a Consigned Vehicle from a pending sale if: (x) the authorized Consignor representative withholds approval of the pending bid; or (y) no bid exceeds the minimum price communicated by Consignor to Service Provider as acceptable (the “Minimum Price”). In the event a Consigned Vehicle is sold by Service Provider for less than the Minimum Price set by Consignor (or the amount subsequently approved by Consignor) without the prior approval of Consignor, Service Provider shall pay Consignor the difference between the Minimum Price (or such subsequently approved amount) and the actual sale price.
ii. Service Provider shall be responsible for maintaining an accurate accounting of Consigned Vehicles in its possession and shall report to Consignor, upon request and at reasonable intervals, the status of said accounting by fleet and unit number. Service Provider shall keep and maintain complete books and records regarding the sale of Consigned Vehicles. Service Provider shall maintain sales documents as reasonably necessary to verify the relevant details of the sale of a Consigned Vehicle including, but not limited to, the Vehicle Condition Report, any work or repair orders, any Federal Odometer Disclosure Statements issued, and any certificates of title executed by Service Provider on behalf of Owner, in each case, for so long as required by applicable law or Service Provider’s document retention policies, whichever is longer.
iii. While Consignor is receiving Services under these Terms, Service Provider shall, upon request from Consignor - no more than once during any twelve month period - provide Consignor with copies of all reports and records of Consigned Vehicle sales hereunder, for audit and inspection by Consignor or its representatives during normal business hours.
d. Risk of Loss. Risk of loss or damage to any Consigned Vehicle shall pass to Service Provider from the time Service Provider picks up the Consigned Vehicle until the time Service Provider delivers the Consigned Vehicle to the purchaser or the vehicle is repossessed by Consignor.
3. Payment. With respect to sales of all Consigned Vehicles hereunder, Consignor shall pay Service Provider for the Services performed under these Terms, the fees and charges to be agreed to by the parties or otherwise set forth in a fee schedule provided by Service Provider. Service Provider shall deduct from the actual sale price of each Consigned Vehicle sold hereunder (“Gross Price”) the total amount of fees and charges payable by Consignor pursuant to these Terms for such Consigned Vehicle and remit the difference (“Net Price”) to Consignor. Such Net Price shall be paid to Consignor by mutually agreeable payment method and will be forwarded to Consignor as soon as possible. Service Provider agrees to use reasonable efforts to make such payment no later than the third business day following the date on which the Consigned Vehicle was sold, provided that Service Provider is not delayed in processing by circumstances beyond its control and has all documents necessary to transfer title to a prospective purchaser. Service Provider shall supply Consignor with a written summary by Consigned Vehicle serial number of the Gross Price, itemization of all charges and expenses deducted therefrom, the Net Price and/or other appropriate documentation reasonably requested by Consignor documenting all such charges and expenses. Service Provider shall be responsible for all credit and collection matters relating to the sale of Consigned Vehicles to purchasers hereunder.
4. Right of Setoff. Any amounts owing to Service Provider hereunder may be deducted from any proceeds or other property otherwise due to Service Provider, and Service Provider may stop payment or refuse to authorize payment to Consignor and Service Provider may hold any Consigned Vehicles pursuant to this right of setoff.
5. Power of Attorney. Consignor shall provide to Service Provider a Power of Attorney in a form provided by Service Provider, and shall cause each Owner to execute and provide Service Provider a Power of Attorney in a form provided by Service Provider, authorizing Service Provider and its designees to permit transfer of ownership of each Consigned Vehicle and to sign, on Consignor’s or Owner’s behalf, as the case may be, bills of sale, certificates of title, odometer disclosure statements, if applicable, and any other documentation necessary to transfer ownership of the Consigned Vehicle.
6. Compliance with Laws. Each party shall comply with all laws, regulations and ordinances of any governmental authority having jurisdiction with respect such party’s performance under these Terms, and shall obtain and maintain any and all required permits, licenses, approvals and consents necessary for the lawful conduct of the activities contemplated under these Terms. Compliance with applicable laws includes, but is not limited to, all laws dealing with or pertaining to Equal Employment Opportunity, Employment of Veterans, Employment of the Handicapped, Employment Discrimination and Utilization of Disadvantaged Business Enterprises.
7. Consignor Warranties. Consignor represents and warrants to Service Provider that as to each Consigned Vehicle: (a) Consignor holds title to the Consigned Vehicle or is able to obtain title from the lienholder or titleholder, as the case may be, (b) Consignor has possession of the Consigned Vehicle, (c) Consignor’s possession of the Consigned Vehicle is lawful, (d) Consignor’s conveyance of ownership of the Consigned Vehicle to the purchaser thereof is effective to convey full ownership of the Consigned Vehicle including, without limitation, free and clear of any liens, (e) Consignor can lawfully execute title, or cause the titleholder thereof to lawfully execute title, to the Consigned Vehicle conveying such ownership, (f) all information and statements on a title document or certificate of origin, and on any Federal Disclosure Odometer Statement, in each case, as provided by Consignor, are true and correct, and (g) if a Consigned Vehicle is a repossession being sold hereunder then, in furtherance and not in limitation of the foregoing warranties, Consignor has properly obtained possession of the Consigned Vehicle and has the legal right to sell the Consigned Vehicle. If Consignor is in breach of the warranty in clause (g) and such breach results in the cancellation or abandonment of a transaction after a buyer’s bid for a Consigned Vehicle either meets the Minimum Price or is otherwise accepted, then, in addition to any other equitable or legal remedies available to Service Provider for Consignor’s breach, a $500 cancellation fee will be assessed to Consignor. Consignor further warrants and covenants that it will never directly or indirectly attempt to bid on Consigned Vehicles listed for sale on its behalf hereunder or attempt to engage in any shill bidding practices, which are strictly prohibited.
8. Service Provider Warranties. Service Provider represents and warrants to Consignor that: (a) all services performed by Service Provider shall be performed in a professional and efficient manner and in accordance with the terms and conditions of these Terms; and (b) Service Providers has used reasonable procedures to establish that any buyer is purchasing a Consigned Vehicle for business purposes including resale, and is not a consumer purchasing a Consigned Vehicle for their own use for personal, family or household purposes.
9. Service Provider Indemnity. Service Provider agrees to defend, indemnify and hold Consignor harmless from and against any third party claim, suit, demand, or proceeding, and any associated loss, damage, or expense (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of or relating to (a) Service Provider’s material breach of these Terms, or (b) any theft or conversion of, or loss or damage to any Consigned Vehicle resulting from the use, operation or possession of any Consigned Vehicle after Service Provider takes possession of the Consigned Vehicle (and until sold and delivered to a purchaser or repossessed by Consignor), except to the extent resulting, in whole or in part, as a direct or indirect result of: (i) the acts or omissions of Consignor or its representatives or customers, (ii) mechanical failure not caused by Service Provider, its agents or employees, or (iii) fire, storm, flood, war, civil disturbance, riot, act of God, lightning, earthquake, or other similar casualty or event, which is not within the control, and not due to the negligence, of Service Provider (any such event outside of Service Provider’s control, a “Force Majeure Event”). In the event of a loss or damage to a Consigned Vehicle while risk of loss is borne by Service Provider, Service Provider shall pay Consignor the amount of such loss or damage. If the Consigned Vehicle is deemed to be a total loss or is not recovered within thirty (30) days after its theft or conversion, Service Provider will promptly pay Consignor an amount equal to; (x) the Minimum Price of such Consigned Vehicle, or (y) if no minimum price has been established, the current value of the Consigned Vehicle reflected in the National Auto Dealers Guidebook.
10. Consignor Indemnity. Consignor shall defend, indemnify and hold Service Provider harmless from and against any Losses arising out of or relating to (a) Consignor’s material breach of these Terms, (b) personal injury, death, or damages to real or tangible property arising from use of any Consigned Vehicle (so long as such use is authorized under these Terms), (c) any misrepresentation or omission made by Consignor concerning a Consigned Vehicle to any person, (d) judgments, liens or citations that were placed on a Consigned Vehicle prior to the sale of the Consigned Vehicle hereunder or defects in such vehicle’s title, and (e) from inaccuracy of the odometer reading on any Consigned Vehicle or any odometer statement prepared in connection with the sale of any Consigned Vehicle herein.
11. Disclaimers; Limitations of Liability.
a. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, CONSIGNOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, TO SERVICE PROVIDER AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS OF ANY CONSIGNED VEHICLE FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND SELLS CONSIGNED VEHICLES “AS IS”.
b. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, ALL SERVICES PROVIDED TO CONSIGNOR BY SERVICE PROVIDER ARE PROVIDED ON AN "AS-IS" BASIS. SERVICE PROVIDER CANNOT AND DOES NOT MAKE, AND THEREFORE DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, RELATING TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER, AND SERVICE PROVIDER CANNOT GUARANTEE THAT ANY SERVICES PROVIDED TO CONSIGNOR HEREUNDER WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT SUCH SERVICES WILL BE FREE OF DEFECTS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
c. UNLESS APPLICABLE LAW PROVIDES OTHERWISE AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT: (i) UNDER NO CIRCUMSTANCES WILL SERVICE PROVIDER BE LIABLE TO CONSIGNOR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES OR PROFITS), OR DAMAGES FOR LOSS OF BUSINESS, OR LEGAL FEES OR COSTS, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) SERVICE PROVIDER’S AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CONSIGNOR TO SERVICE PROVIDER UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION BEING ASSERTED.
12. Insurance/Risk of Loss. While Consigned Vehicles are in Service Provider’s custody and control, Service Provider, at its sole cost and expense, shall procure and maintain the following liability insurance coverage: (a) Statutory Worker’s Compensation Insurance, (b) Commercial General Liability insurance with limits of not less than $1,000,000.00, (c) Automobile Liability with limits of not less than $1,000,000.00 single limit per occurrence of loss or damage, and (d) Garage keepers Liability insurance with limits of not less than $1,000,000.00.
13. Termination. Consignor may choose to stop using the Services at any time. Service Provider also reserves the right to suspend or end the Services at any time and without notice and for any reason including, without limitation, if Consignor is in violation of these Terms or is using the Services in a manner that could result in legal liability or disrupt the use of the Services by others. Termination of these Terms shall not affect any rights or obligations that may have accrued as of the date of termination. Upon termination, Service Provider shall, subject to these Terms, return promptly all unsold Consigned Vehicles in its possession to Consignor in accordance with Consignor’s reasonable instructions in the same condition as when such Consigned Vehicles were delivered to Service Provider, less ordinary wear and tear, and subject to any repair or reconditioning services performed by Service Provider hereunder, after Consignor has paid to Service Provider all amounts owed to Service Provider in accordance with these Terms.
14. Independent Contractor. Except as specifically permitted by in a Power of Attorney, Service Provider is an independent contractor in the performance of its obligations under these Terms and is not the express, implied or apparent agent or representative of Consignor for any purpose whatsoever. Under no circumstances shall Service Provider or its employees or other persons performing work for Service Provider be considered employees of Consignor.
15. Miscellaneous.
a. Except as necessary to perform as contemplated hereunder, neither Consignor nor Service Provider will, without first obtaining the written consent of the other party, advertise or publish in any manner, the fact that the parties have contracted for the provision of the services described herein.
b. All notices, demands, or other communications required to be given hereunder shall be given in writing and shall be personally delivered, sent by registered or certified mail, return receipt requested with postage prepaid, sent by telecopy or sent by commonly recognized overnight express delivery service. Notice to Service Provider shall be addressed to 640 Ellicott St., Suite 321, Buffalo, NY 14203, Attn: Legal Department, with a copy to notices@acvauctions.com. Notice to Consignor shall be sent to the notice address included in an order form, if applicable, governing the Services, or to the contact information provided to Service Provider when signing up for the Services.
c. ACV reserves the right to modify or replace these Terms from time to time in its sole discretion. Modifications will take place immediately upon posting of the revised Terms, provided, however that ACV will provide thirty (30) days’ notice before material changes go into effect. What constitutes a material modification is determined by ACV in its sole discretion. By continuing to use the Services after any modification becomes effective, Consignor agrees to be bound by the revised terms.
d. These Terms constitute the entire understanding of the parties and represent the entire and integrated agreement among them and supersedes all prior negotiations, representations, or agreements, either written or oral, with respect to the subject matter hereof.
e. Neither Service Provider nor Consignor shall assign their rights or duties under these Terms to any other party without the prior written consent of the other party, except that Service Provider and Consignor each may assign these Terms without the other party’s consent in connection with a merger or sale of all or substantially all of such party’s assets. Any purported assignment without the required consent shall be null and void.
f. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles thereof.
If any provision hereof or the application of any provision to any person or circumstances is held invalid or unenforceable by a court of competent jurisdiction, said provision shall be deemed deleted and the remainder of these Terms shall remain in full force and effect
