PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION AS THEY CREATE A BINDING CONTRACT RELATED TO THE SERVICE AND YOUR USE OF THE BEST YACHT AUCTIONS WEBSITE.
Welcome to Best Yacht Auctions website (the “Website”), owned and operated by Best Yacht Auctions LLC, a Delaware Limited Liability Company (“BYA” “we” or us”) as a facilitator between Buyers and Sellers for the purchase and sale of the inventory listed on the Website (The “Service(s)”). This document explains the terms and conditions which apply when you (“You”) use the Website and the software provided on or in connection with the Services.
Best Yacht Auctions relies on the definition of a “Vessel” set forth at 1 United States Code § three as “[---] every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” to describe all of the boats, yachts or commercial Vessels which may appear for sale on the Best Yacht Auctions Website which we refer to throughout these terms as a “Vessel.”
B.Y.A. IS NOT A LICENSED AUCTIONEER, BROKER, DEALER, NOR AN AGENT OF THE SELLER. B.Y.A. HAS NEVER HAD POSSESSION OF NOR INSPECTED ANY VESSEL LISTED ON THE WEBSITE. B.Y.A. DOES NOT ITSELF SELL, EXCHANGE, BUY, OFFER FOR SALE OR ATTEMPT TO NEGOTIATE A SALE OR EXCHANGE OF AN INTEREST IN ANY VESSEL.
1. USE OF OUR SERVICE
2. GENERAL RULES OF CONDUCT
Please act responsibly when using the Services. The following rules are a condition of your access to or use of the Services and Content:
3. BASIC TERMS OF THE BYA AUCTION PROCESS DEFINED
4. SELLER RULES AND PROCESS
REGISTRATION and TIMELINE
In connection with the Services, Registered Sellers may choose between absolute auctions, selling without a reserve or minimum price, Rolling Auctions with a limited timeline or reserve auctions, where the Vessel may be sold with a minimum price that may or may not be disclosed to Bidders. Each Seller must complete and sign the BYA Seller’s Agreement before any vessel can go live at Auction. The BYA Sellers agreement is found here.
Absolute auctions are typically for smaller Vessels and are conducted with no minimum price. The Vessel will sell for the highest bid entered during the Auction.
Is open to Bidders over a seven (7) to thirty (30) day period and accepts bids throughout that period until its expiry at a pre-set date and time.
If a Seller chooses a reserve Auction, Seller will provide to BYA a minimum price at which the Seller is willing to sell the listed Vessel (the “Reserve”) prior to BYA’s publication of the Seller’s listing.
For Vessels with Minimum Bids over $100 thousand dollars once the Vessel is ready to go live, there will be a Preview Period of 30 or 60 days when Registered Bidders may ask questions of the Broker directly through the link on the Vessels Auction Page, make an in-person inspection of the Vessel and conduct and rely on their own due diligence which will be arranged between the Broker and the Bidder each assuming their own expense and risk. At the conclusion of the Preview Period the Vessel will go live to a 48-hour on-line Auction and may include pre-registered telephone bidders. The Broker may reduce the Reserve at any time even when the Auction is underway. The Broker must be always available to BYA when the Auction is live.
There is no Preview Period for Vessels with Minimum Bids under $100 thousand dollars.
If a Reserve Auction ends without the Reserve Price being reached, at the Seller’s request BYA will connect the last highest bidder and the Seller in case a deal is still to be had. If that conversation results in a sale the Buyer’s Premium will apply. If any person who bid at the Auction closes a sale with the Seller within 90 days of the Auction close, the Buyer’s Premium will apply. If no sale is reached either through a winning bid or by other agreement between the Buyer and Seller, then the Seller is free to do what he/she wants to sell the boat including relisting it for a future BYA Auction. Seller may reduce or waive the Reserve prior to or during the Auction by notifying BYA of such change via email. BYA, in its sole discretion, reserves the right to withdraw a Vessel from Auction at any time.
Unless otherwise noted the term “Vessel” is defined to include all safety gear, machinery, equipment, furniture, consumables, and all other appurtenances on board the Vessel as of the date of its listing, except for items listed specifically excluded by the Seller in writing at the time of the listing of the Vessel, excluded items are not included in the sale of the Vessel.
BYA does not and cannot guarantee the truthfulness, accuracy, or reliability of any Seller Content. BYA will take reasonable measures to verify any public information disclosed by any Seller. BYA does not endorse any opinions expressed by the Seller, any Broker, Bidder, you, or anyone else. By relying on the Seller Content to place a bid you do so knowingly assuming all associated risk and fully and unconditionally release and forever discharge indemnify and hold BYA and its officers, directors, employees, agents, affiliates, brokerages, brokers, and surveyors harmless from all claims, demands, losses, expenses, costs and damages (actual or consequential, direct or indirect), whether now known or unknown, suspected or unsuspected, contingent or fixed, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and a Buyer or one or more Users or any other person or entity, or (ii) the use by BYA of the Seller Content, including, without limitation all claims that BYA’s use of the Seller Content violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity or that the veracity of the Seller Content has caused you to take affirmative actions in reliance thereon.
5. SELLER RULES AND PROCESS
ALL BIDDERS ACKNOWLEDGE AND AGREE THAT THEY ARE BIDDING FOR AND, WILL ACQUIRE THE VESSEL, IN ITS ”AS IS” CONDITION WITH ALL DEFECTS, BOTH PATENT AND LATENT, AND WITH ALL FAULTS, WHETHER KNOWN OR UNKNOWN, ALL PROSPECTIVE BIDDERS ACKNOWLEDGE AND AGREE THAT BYA HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATION, WARRANTY, PROMISE, COVENANT, AGREEMENT OR GUARANTY OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, CONCERNING OR WITH RESPECT TO THE VESSEL.
6. OUR PROPRIETARY RIGHTS
Except for Seller provided Content, the Service and all materials provided or available therefore or transferred in the process hereof (the “BYA Content”), all intellectual property and other proprietary rights related thereto, are the exclusive property of BYA and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property and proprietary rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any BYA Content. Use of BYA Content for any purpose not expressly permitted by these Terms is strictly prohibited.
“Best Yacht Auctions”, the Best Yacht Auctions logo, and any other product or service name or slogan displayed on our Service are trademarks of Best Yacht Auctions and its suppliers or licensors, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Best Yacht Auctions or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Best Yacht Auctions” or any other name, trademark or product or service name of Best Yacht Auctions without our prior written permission. In addition, the look and feel of our Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Best Yacht Auctions and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in our Service are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us and are used with permission or under the doctrine of Fair Use.
You agree to defend, indemnify and hold harmless BYA from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property or proprietary rights; (iv) your violation of any applicable law, rule or regulation; (v) Seller Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BYA’S LIABILITY FOR ANY AND ALL DAMAGES OF WHATEVER KIND OR NATURE SHALL BE LIMITED TO THE COMPENSATION THAT WOULD HAVE BEEN DUE TO THE BYA IN THE EVENT OF A SUCCESSFUL AUCTION SALE.
8. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
Governing Law. You agree that: (i) the Service shall be deemed solely based in NEW BEDFORD BRISTOL COUNTY, MASSACHUSETTS (The “Service Jurisdiction”); and (ii) the Service shall be deemed a passive service that does not give rise to personal jurisdiction over B.Y.A. or its personnel, officers owners and agents, either specific or general, in jurisdictions other than Service Jurisdiction. These Terms shall be governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 USC §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Massachusetts for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree as a bargained for provision of this agreement that Massachusetts is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
Disputes. Read this section carefully as it limits the way you can seek relief from BYA. For any dispute with BYA, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that a dispute has not been resolved after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (solely excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, any Auction or Vessel, including the breach or alleged breach of these Terms (collectively, “Claims”), by binding arbitration before the Maritime Arbitration Association of the United States Massachusetts office (“MMA”). The arbitration will be conducted in One Washington Mall Boston, MA 02108 or at the direction of MMA at another location in the Commonwealth of Massachusetts. Each party will be responsible for paying any MMA filing, administrative and arbitrator fees pursuant to and in accordance with MMA’s rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. Nothing in this Section shall be deemed as preventing BYA from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property, or other proprietary rights.
Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial, or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and BYA are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind with respect to any action concerning or naming BYA.
9. GENERAL PROVISIONS
Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred, or assigned by you, but may be assigned by BYA without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.] SD.
Notification Procedures and Changes to these Terms. BYA may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Website, as determined by BYA in our sole discretion. BYA reserves the right to determine the form and means of providing notifications to its Users if you may opt out of certain means of notification as described in these Terms. BYA is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. BYA may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically as all changes are binding on you. All changes are effective immediately when posted and apply to all access to and use of the Website and the Services thereafter. We also reserve the right to withdraw or amend this Website, and any Service we provide, in our sole discretion without notice. Your continued use of the Website and the Services following the posting of revised Terms means that you accept and agree to the changes. If at any time you find these Terms unacceptable, you must immediately leave the Website and cease all use of the Services and the Website.
Entire Agreement. These Terms, together with any amendments and any additional agreements you may enter with BYA in connection with the Service, shall constitute the entire agreement between you and BYA concerning the Service.
Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible to affect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect.
No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and BYA’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Website Functions and Availability. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period.
Expiration of Claims.. Any claim or cause of action you may have with respect to BYA, the Website and/or the Service must be commenced within one (1) year after the claim or cause of action arose or it will be waived.
Force Majeure. Neither party will be liable or responsible nor be deemed to have defaulted or breached this Agreement for any failure or delay in performance under this Agreement when and to the extent such failure or delay is materially interrupted or caused by or results from acts or circumstances beyond such party’s reasonable control, including, without limitation, acts of God, flood, hurricane, typhoon, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, lockdown orders quarantine orders, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, linking to the website and social media features.