ACV AUCTIONS TERMS OF SERVICE
- Eligible Participants. ACV Auctions is a dealer to dealer marketplace. Our Auction services are intended for professional Vehicle remarketers only. Only representatives of licensed dealerships are eligible to participate. You represent and warrant that you are a licensed retail or wholesale dealer of Vehicles and/or a business that is otherwise legally eligible to purchase or sell Vehicles at wholesale auto auctions. A state issued dealer’s license and federal tax identification are among the documents a dealership will need to present to become active on the ACV Auction system.
- 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 Customers (“Authorized Customers”) will be issued unique Customer names and passwords to access the Services. You are liable and responsible for all actions, omissions and any failure to act of your Authorized Customers in connection with your Authorized Customer’s 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 Customers. Further, you represent and warrant to ACV Auctions that: (a) you and your Authorized Customers are in compliance with and shall comply with all laws and regulations that apply to your business; and (b) you and your Authorized Customers 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 Customers at any time.
- 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 Customers 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.
- Basic Seller Obligations. The Seller represents, warrants and agrees to the following terms:
- Seller is a dealer licensed as a dealer in franchised motor vehicles;
- any amounts owed to ACV Auctions or its affiliates may be deducted from the 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, the risk of loss for the Vehicle is transferred to the Buyer;
- 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 good right and full power and authority to sell and transfer title to the Buyer except as set forth in the Vehicle’s announcements:
- if the Vehicle is sold as Title With Deal (“TWD”), the Vehicle title will be produced within 5 business days,
- if the Vehicle is sold as Title Attached (“TA”) the title must be produced within 21 business days,
- if a title cannot be produced within the allowed timeframe for the sale as announced (TWD or TA), Buyer has a right to cancel the sale with a 48-hour notice, in which event Seller is responsible for all transportation costs to return the Vehicle to Seller and all Seller fees owed to ACV Auctions in connection with the auction;
- a $500 cancellation fee will be assessed to a Seller if a transaction is canceled or abandoned after a Buyer's bid is accepted;
- unless otherwise agreed, Seller will hold and make available the sold Vehicle for up to seven business days after which an abandoned vehicle notice can be sent to ACV Auctions to request to remove the Vehicle within 48 hours;
- ACV Auctions reserves the right to limit the number of Vehicles posted by a Seller for an introductory period; and
- that Seller will warrant and defend the same against the claims and demands of all persons whomsoever.
- Basic Buyer Obligations. The Buyer represents, warrants and agrees to the following terms:
- that it is a licensed motor vehicle dealer in good standing;
- to purchase the Vehicle for the Buyer’s bid price which can be accepted by the seller until 11:30PM EST of the day the auction is launched;
- to not resell the Vehicle until good funds have been transmitted to ACV Auctions;
- to pick up the Vehicle in seven business days;
- select payment option by 11:59 pm same day as auction 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 a Vehicle listed as TWD, indicates a period of up to 5 business days to produce title;
- that a Vehicle listed as TA indicates a period of up to 21 business days to produce title;
- 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, 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, that it is responsible for ensuring that the Vehicle satisfies 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;
- any adjustments or rejections must be made within 24 hours of Buyer’s receipt of title;
- title to the Vehicle does not pass to Buyer until good funds are received;
- 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 and Buyer is subject to account suspension at the discretion of ACV Auctions.
- Transport. If you elect through this website to arrange for the transportation of any Vehicles purchased through ACV Auctions, Inc., such transportation shall be arranged by ACV Transportation LLC, an authorized property broker affiliate of ACV Auctions, and shall be governed exclusively by the terms and conditions entered into by you and ACV Transportation LLC. ACV Auctions, Inc. will remit to ACV Transportation LLC any funds ACV Auctions, Inc. receives from you to cover transportation costs you have agreed to pay ACV Transportation LLC.
- Payment Terms. In consideration of access to the Services, you 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. At any time, ACV Auctions may change fee structures if it provides advance notice of these changes in writing to the email address associated with the Customer’s account.
Customer shall pay ACV Auctions the Fees in accordance with the terms, and at such times, detailed on the Customer invoice (the “Payment Due Date”). Payment shall be made in U.S. dollars by, ACH electronic funds transfer, check 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 Customer. ACV Auctions reserves the right to specify the type of Payment Method it will accept from Customer. In addition to whatever rights of set-off ACV Auctions may have in any jurisdiction where Vehicles are sold, if Customer or any party affiliated with Customer (“Customer Affiliate”) 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 Customer and/or Customer Affiliate from any funds owing by ACV Auctions to Customer and/or Customer Affiliate. 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; (b) withhold title documents until all amounts owed have been paid; (c) cancel the sale transaction; (d) charge late payment fees of $10 per day, and/or charge interest on any past due amounts at the rate of one and one half (1.5%) percent per month, calculated in US dollars, or the maximum rate allowed by law, whichever is less; and/or (e) pursue any other remedy or relief permitted by law. If we accept payment from you by electronic check, you authorize ACV Auctions to initiate debit entries to your 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 Instrument withdrawn, 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. 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.
- Auction Arbitration. ACV Auctions offers an arbitration service to assist Buyers and Sellers in resolving disputes for Vehicles purchased on ACV as further described in ACV Auctions’ Arbitration policy: (https://www.acvauctions.com/arbitration). Arbitration is the referral of a dispute to an impartial person for final and binding determination. Our process is designed to be informal, quick, practical, and economical. Our arbitration managers are trained professionals who understand the automotive remarketing business. All settlements from an arbitration may be held by ACV Auctions until a clean transferable Vehicle title has been secured by ACV Auctions.
A Vehicle purchased through ACV Auctions will only be arbitrated once for any defects in accordance with ACV’s Vehicle Condition Arbitration Policy. Once a Vehicle is arbitrated for any reason, further arbitration of the Vehicle is not available.
Below is how our arbitration process works:
- Step 1: Pay for the Vehicle. A claim will not be arbitrated until the Buyer has paid for the Vehicle in full. The Buyer must have possession of the sales agreement for the Vehicle under review.
- Step 2: Contact Us. A Buyer initiates arbitration by contacting ACV auctions at firstname.lastname@example.org.
- Step 3: Investigation. Both the Buyer and the Seller will have an opportunity to explain their position. Depending on the nature of the complaint, we may, after listening to both parties, inspect the title and come to a decision without further consultation.
- Step 4: Decision. After completing the investigation, we will decide whether the complaint was valid and inform both parties of the decision. The unsuccessful party will be responsible for all costs of the arbitration.
- Step 5: Remedy. We may grant any remedy or relief considered to be appropriate. Remedies may include cancellation of sale and refund in whole or in part of the purchase price, auction fees and or transportation fees.
A remedy cancelling the sale may take up to 7 business days to transport the Vehicle from Buyer back to Seller.
- Step 6: Finality. Our decision and the remedy imposed is final and binding on both parties. By choosing to initiate the arbitration process, the Buyer and Seller agree to be bound by our decision. If a Seller or Buyer fails or refuses to comply with our decision, the Seller or Buyer will be held liable for all losses, costs, and damages including legal fees and any losses on the resale of the Vehicle. In addition, the Seller’s auction privileges may be temporarily or permanently suspended.
- Monitor Arbitrations & Remedy. 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.
- Customer Content. 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 we work with. Customers agree that this permission is royalty free, irrevocable and worldwide for so long as Customer Information is held by ACV Auctions.
- ACV Auctions Intellectual Property. The Services are protected by copyright, trademark, and other US and foreign laws. These Terms do not grant Customers any right, title or interest in the Services, others’ content in the Services, ACV Auctions trademarks, logos and other brand features. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of ACV Auctions. ACV Auctions welcomes feedback, but note that we may use comments or suggestions without any obligation to the Customer.
- Availability, Errors and Inaccuracies. We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service. 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. Our Service 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. ACV AUCTIONS AND THE ACV AUCTIONS PARTNERS PROVIDE THE ACV AUCTIONS SYSTEM AND ALL RELATED 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 CUSTOMER’S USE OF AND ACCESS TO THE ACV AUCTIONS SYSTEM AND ANY RELATED 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 THE ACV AUCTIONS PARTIES SHALL HAVE NO LIABILITY WHATSOEVER, ACTUAL OR OTHERWISE, TO CUSTOMER OR AUTHORIZED CUSTOMERS BASED ON ANY OF THE FOLLOWING: (i) ANY DELAY, INTERRUPTION IN USE OF, FAILURE IN OR BREAKDOWN OF THE ACV AUCTIONS SYSTEM OR ERRORS OR DEFECTS IN TRANSMISSION OCCURRING IN THE COURSE OF ACCESSING OR USING THE ACV AUCTIONS SYSTEM; (ii) ANY UNLAWFUL OR UNAUTHORIZED USE OF THE ACV AUCTIONS SYSTEM; (iii) ANY LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR INFORMATION; OR (iv) ANY CLAIM RESULTING FROM THE TERMINATION OF ACCESS TO THE ACV AUCTIONS SYSTEM OR ANY RELATED SERVICES.
- Indemnity. Each Customer agrees at their own expense to defend, indemnify, and hold the ACV Auctions Parties, 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, indemnities, duties, accounts, bonds, covenants, claims over, claims for contribution or indemnity, warranties, either at law or in equity, 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 agree 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. Customer certifies that it holds the appropriate documentation issued by the sales tax authority of the state or province, or locality of its business, if necessary, which exempts Customer from the payment of sales tax. In the event that Vehicles or other products purchased are used for any purpose other than for resale, Customer 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 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 as follows:
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 aren’t allowed. 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, NY. Both Customer and ACV Auctions consent to venue and personal jurisdiction there.
- Controlling Law. 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. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.
- Contact Us, Notices. Notices must be sent via first class, airmail, 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
Last Updated: April 25, 2019