Manheim Terms and Conditions

I.  GENERAL

1. Manheim: These Terms and Conditions govern your use of and access to various services performed by (including, but not limited to, remarketing, reconditioning, and storage) the automobile auctions, websites, mobile sites, Digital Platforms, as defined in Paragraph 34 below (including, but not limited to, OVE), online tools, and other service delivery channels made available by Manheim Investments, Inc., Manheim Remarketing, Inc., and their various subsidiaries and affiliates, including, but not limited to, the various Manheim auto auctions and Cox Automotive, Inc. (collectively, “Manheim,” “we,” “our,” or “us”). These Terms and Conditions are in addition to, and not in lieu of, any more specific agreements you may have or make with Manheim (e.g., sales invoices, consignment agreements, online visitor agreements, privacy policies, loan agreements, etc.). To the extent there is any conflict between these Terms and Conditions and other more specific agreements you have signed with Manheim, those other more specific agreements will control. Manheim may amend these terms at any time by posting an amended version on its website, which will become effective on the date of posting. Time is of the essence with respect to all of your duties hereunder.
2.  Accuracy of Information: You certify that all registration and representative information you have provided to us, whether via AuctionACCESS or otherwise, is true, correct, and complete.  You agree to promptly update your information, including via AuctionACCESS as necessary, if there is any change to the information you have provided.
3. Fairness and Courtesy; No Right to Do Business; Customer Code of Conduct; Safety and Assumption of Risk; Legitimacy of using Manheim Physical or Digital Services:
   
   1. You agree to behave in a fair, ethical, courteous, and civil manner in your interactions with us, our personnel, and our other customers while participating in any Manheim auction, when accessing our online and mobile sites, or when otherwise using any of Manheim’s services. Should you have issues or concerns with the behavior of our personnel or other customers while attending any Manheim auction that cannot be resolved quickly and civilly on your own, you agree that you will raise those issues discreetly with our management.
   2. You have no obligation to do business with us. Likewise, you agree and acknowledge that we have no obligation to do business with you. We are affiliated private businesses; we reserve the right to cease doing business with you or anyone else, at any time, for any reason or no reason, in our sole discretion, collectively or separately among our affiliates, and you will have no right, remedy, or cause of action for the same. You acknowledge and agree that there are numerous sources, other than Manheim, for you to acquire and sell used Vehicles and related services.
   3. In addition to any other requirements in these Terms and Conditions, you acknowledge and agree to adhere to the Manheim Customer Code of Conduct (the “Code”), located in the Manheim Marketplace Policies, and the Code is hereby incorporated into and made a part of these Terms and Conditions by reference.     The current list and terms of Manheim’s Marketplace Policies can be found at https://site.manheim.com/en/marketplace-policies/us-policies.html.  (“Manheim Marketplace Policies”).
   4. Our various facilities are busy places with many Vehicles, customers, and personnel moving around the premises at all times, particularly during sales events. You understand and acknowledge that the movement of Vehicles, equipment, and individuals at our facilities constitutes an open and obvious condition and that Manheim is not obligated to warn you of such conditions. You agree to obey posted signs and follow any warnings you receive from our personnel, particularly as they relate to safety and security issues. You also agree to use extreme care while on our premises to avoid injury to yourself and others, both in moving vehicles on and off the premises and in traversing any sale lanes, parking lots, and offices on foot and otherwise. By entering our private premises, you assume the risk of injury.
   5. You agree that any time you communicate with Manheim, enter upon Manheim premises, use Manheim physical or digital services, or otherwise interact with Manheim personnel, it will be for, and be strictly limited to, conducting legitimate business with Manheim as a customer, and you agree that you will not make any recording, video, access the OBD port of any Vehicle, or use any other method to capture Data (as defined in Section IV below) or activity existing at or occurring at or during any Manheim function or activity without prior written consent from Manheim. 
4.  Dealer Only/ No Retail Sales:  With limited and specifically-advertised exceptions, our sales are wholesale auctions open only to Buyers and Sellers.   “Curbstoning,”(i.e.,  retail sales from our premises, via our platforms, or otherwise providing retail access to Manheim inventory) is strictly prohibited. You agree not to bring any actual or prospective retail buyers to Manheim, or to give them access to Manheim’s online portals or websites, directly or indirectly, or to negotiate or consummate any retail transactions on or adjacent to any of our property. You further agree not to appoint any representatives to act on your behalf who are not bona fide agents of your dealership. You also represent to us that your purchases through us are for resale only and are exempt from any state sales tax.  You also represent to us that your purchases through us are for resale only and are exempt from any state sales tax.  You agree that you, and not Manheim, are responsible for all charges, fees, taxes and assessments that may  arise out of: (i) your transactions on Manheim premises or on a Manheim digital platform or (ii) any related or subsequent transactions. In the event any fees, assessments, or similar tax liability is imposed on Manheim in connection with Your transactions, You agree that you are responsible for such amounts and will immediately pay to Manheim an amount sufficient to provide for all such amounts imposed on Manheim.  Bound by Representatives: You are responsible for all activities that occur on your account(s) with us, whether in person or online. You are bound by the actions of, and transactions entered into by you, any person purporting to act on your behalf or at your behest, or with your permission, including, but not limited to, your actual and appointed representatives, such as (i) all persons who, from time to time, submit a completed Individual Authorization Letter to Manheim or to AuctionACCESS signed by or for you; and (ii) any other person authorized by you in writing, to represent you at or with Manheim. You are responsible for monitoring your appointed representatives and protecting the privacy of your username, login information, and AuctionACCESS number, card, or smart card and agree to inform us immediately, in writing, of any unauthorized use of same. For the avoidance of doubt, for any scenario in which your login credentials are used or misused by you or a third party, you will be solely responsible for such use or misuse of your login credentials, including, but not limited to, Vehicles purchased or sold using those credentials.  You agree that you will keep your login credentials secure and not provide them to anyone, and in no event will you provide those credentials to any retail buyer.  If you are checking in,  logging in, or otherwise transacting business at Manheim as a representative for some person or entity other than yourself (e.g., a representative of a buying dealer, Third-Party Remarketer, wholesalers or aggregator), you agree that you are a duly appointed and authorized representative for such person or entity and have authority to bind that person or entity to any actions or transactions you conduct and you further acknowledge and agree that you and such person or entity are both bound these terms and conditions and you are responsible for ensuring that such person or entity is aware that they are bound by these Terms and Conditions.
5. Limited Power of Attorney; Electronic Signatures:
   
   1. Limited Power of Attorney. For value received, you hereby irrevocably appoint Manheim to be your agent and attorney-in-fact with full and complete authority to, on your behalf, take all steps, do all things, and authenticate, sign, e-sign, or otherwise acknowledge any and all documents, including but not limited to odometer disclosure statements, title documents (including applications for duplicates), bills of sale, invoices, and transportation instructions/orders, in each case as deemed necessary, incidental, desirable, or expedient by us, in our sole judgment, for any purchase or sale of a Vehicle made under these Terms and Conditions, for the provision of any goods and/or services under these Terms and Conditions, and/or to assist us with our efforts to collect payment for such goods and/or services. You acknowledge that you will be required to execute, and you hereby agree to execute, such valid power of attorney document(s) covering the foregoing activities and authority as Manheim may request from time to time in its sole discretion.  For greater certainty, where any applicable jurisdiction requires a valid power of attorney to be effected in writing, in the presence of a witness, and/or imposes any other requirements, you hereby covenant to do such acts as required to appoint Manheim as your power of attorney.
   2. Electronic Signatures. You acknowledge and agree that you and we may, from time to time, find it expedient to utilize electronic signature(s), acknowledgement(s), consent(s), “click-through(s),” or other approval(s), direct or indirect, for access to auctions, bills of sale, receipts, titles, and other documents or disclosures necessary or incidental to the transaction of business at Manheim, whether online, in emails, at the check-in kiosk, on the auction block, at security, or otherwise, which makes your business with us easier, faster, and more efficient. To that end, you agree that any such forms of approval from you will be effective and binding upon you, in the same manner as a handwritten signature, where circumstances indicate your intent to be bound and/or we choose to rely on such approval(s), and may be documented by us, in our discretion, on paper or digital versions of such records, by printing your name, noting “signature on file,” or using any other similar convention. You further acknowledge and agree that any electronic or digital signature contemplated herein or utilized or accepted by Manheim shall be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”), and any other similar Laws relating to the validity or enforceability of electronic or digital signatures (including without limitation, any enactment of the Uniform Electronic Transactions Act (UETA)), and such electronic or digital signature shall not be denied legal effect, validity, or enforceability solely because it is in electronic or digital form.
6. Communications: Except where prohibited by law, you hereby expressly authorize us to communicate with you via email, landline, or cell/mobile phone, including text messaging, using an automatic telephone dialing system or an artificial or prerecorded voice message, and/or any other forms of communication or technology now known or created in the future, for any purpose, including general business matters, account information, marketing materials, collection, and/or any other communication needs. Such express permission will extend to any and all of the contact information, including physical and email addresses, phone numbers, and to such other addresses, phone numbers, email addresses, online chat, social media platforms, etc. that you may provide to us, or that we may obtain from any third party at any time. You are not required to consent to receive marketing calls and texts to your cell phone and/or residential line using an automatic telephone dialing system or an artificial or prerecorded voice message from us as a condition of your access to Manheim, and you may opt out of receiving such communications by adjusting your account settings at www.manheim.com.
7. No Commitment to Lend: Neither these terms and conditions nor any other request by you to us will constitute a commitment by us to lend funds to you or to take any other action. We may approve any request for floor plan or other financing in our sole discretion, with or without notice to you.
8. Manheim Policies: You also agree to abide by any applicable Manheim Marketplace Policies, other location-specific policies of Manheim, or policies on any relevant application, as amended from time to time.  
9. Understanding of Terms and Conditions: You acknowledge and agree that you understand these terms and conditions written in English and that you have sought the help of an attorney and/or translator as you deem necessary to understand them. The Parties agree that this agreement, and all correspondence and all documentation relating to this agreement, is and will be written in the English language. Any translated version of any of these terms and conditions offered by Manheim is provided as a courtesy only, with the English version being the binding version.
10. Severability: If any provision in this agreement is determined to be legally unenforceable, the parties agree that, except as specifically provided at Subparagraph 27(c), the unenforceable provision will be severed, and the remaining provisions of these terms and conditions will remain in full force and effect.
11. Headings  The headings used in these Terms and Conditions are used for convenience only and are not to be considered in construing or interpreting these Terms and Conditions.

    II.  TERMS:

12. Bidding: Unless announced otherwise during the sale, all Vehicles are sold with reserve, and the auctioneer may bid up to the reserve. Seller bidding and use of shills are strictly prohibited. Bidders should remain aware and satisfy themselves as to a Vehicle‘s condition and value before bidding and bring any incidents of improper bidding to management’s attention immediately at the close of bidding on a Vehicle. Otherwise, participants ratify the auction of the Vehicle.
13. Terms of Sale: You agree to the following terms of sale for each Vehicle, as well as the Manheim Arbitration Policies (as defined in Paragraph 20) that apply in the jurisdiction of sale. Pursuant to Paragraph 20 below, the Manheim Arbitration Policies incorporate the arbitration rules of the National Automobile Auction Association (“NAAA”), except as may be contradicted in these Terms and Conditions:
    
    1. Buyer is the transferee and agrees to purchase the Vehicle; Seller is the transferor and agrees to sell the Vehicle. Manheim is merely the auctioneer or facilitator in the transaction.  You acknowledge and agree that you are a sophisticated commercial party and agree to satisfy yourself as to the condition and value of a Vehicle and the terms of any bid before bidding or selling. You further agree to look to the counterparty (the Buyer or Seller, as applicable) in such a transaction, and not Manheim, for any legal claims falling outside your rights under the Manheim Arbitration Policies.
    2. Any adjustments or rejections must be raised the day of sale and resolved prior to settlement. Unless otherwise agreed to by Manheim Vehicles must be paid for on the day of purchase, or Manheim may, at its discretion, impose fees as described below in Paragraph 14 and/or consider the sale null and void.Title to a Vehicle does not pass to Buyer until good funds are received. Buyer grants Manheim a security interest in each Vehicle to secure payment of the purchase price and of any other debt owed by Buyer to Manheim (including any affiliates of Manheim or Cox Automotive, Inc.). You agree that Manheim may resell any Vehicle, if retained or repossessed, on your behalf, to mitigate damages, at a regular Manheim sale or through any affiliated sale, including Manheim’s online sales channels, which are established commercially reasonable markets for the sale of motor vehicles for the purposes of satisfying any outstanding amounts owed by Buyer.Regardless of whether your consent or approval was given, or in what form, you agree that you will be deemed to have ratified any transaction with or through us that you do not dispute in writing within 24 hours of confirmation by Manheim.
    3. Assuming a Vehicle is deemed eligible for release (as set forth in Paragraph 17), such Vehicle will be removed from Manheim premises no later than the sixth (6^th) day following the communication of eligibility for release, and thereafter, Manheim may charge a reasonable daily storage fee of up to $25 per day should any Vehicle be left on Manheim premises.
    4. Anything to the contrary in these Terms and Conditions notwithstanding, except as set forth in Section 34.b, as between Seller and Buyer, responsibility for, and risk of, any claim, loss, or damage (“Loss”) caused to or by a vehicle resides with the Seller prior to, and with the Buyer from and after, the fall of the hammer and/or auction’s declaration that the Buyer has successfully won the bid on the vehicle.  
    5. Buyer agrees:
       
       1. to purchase the applicable Vehicle for the purchase price established by the auctioneer, or displayed on any online platform as the purchase price of the Vehicle, and shown on the final bill of sale or other final purchase receipt from us;
       2. that it is Buyer’s responsibility to verify that the VIN and/or engine number on the vehicle matches those on the title, bill of sale, or other final purchase receipt, as applicable, and to confirm the actual condition of such Vehicle conforms with its description, the announcements, and Seller’s disclosures, if any;
       3. not to resell such Vehicle until good funds have been transmitted to Manheim;
       4. upon making settlement, regardless of payment method, to consider the sale a fully consummated cash transaction for present consideration;
       5. that no stop payment of any Buyer check to Manheim will be honored;
       6. that any stop payment order of a check/draft, electronic funds transfer, or wire transfer, or giving a check/draft which is returned unpaid will be deemed evidence of intent to commit fraud existing at the time of payment and will be construed as an intent to defraud in order to obtain the Vehicle and/or its title;
       7. that Manheim may deposit any check or draft immediately upon receiving it, regardless of whether such Vehicle’s certificate of title has been submitted by Seller or whether Buyer has asked Manheim to hold the instrument;
       8. to make any claim of defects in such Vehicle with Seller, who will be solely responsible for those claims, and to immediately notify Manheim of such claims pursuant to its policies;
       9. that Buyer will comply with Subparagraph 13(c) above with respect to removal of Vehicles from Manheim’s premises and payment of daily storage fees;
       10. that Buyer is responsible for transportation, and all associated costs therewith, of such Vehicle to Buyer’s desired location; and
       11. that any obligation of the auction to the Buyer, whether arising out of these Terms and Conditions or otherwise: (a) is expressly limited to the Buyer of the applicable vehicle; (b) is not negotiable or transferable; (c) will be void if the purchase price for the Vehicle is not paid by Buyer; and (d) will not exist as to defects in the title known to Buyer whether or not listed as exceptions on the face of the bill of sale for such Vehicle.Buyer agrees and understands that if Buyer retails a Vehicle prior to receiving clean title, Buyer does so at Buyer’s peril, and Buyer agrees that in order to avail himself or herself of any title protection afforded by any Manheim Arbitration Policy, Buyer must unwind the sale to the Retail Buyer and return the Vehicle to Manheim; otherwise, Manheim will have no obligation to Buyer, and under no circumstances will Manheim have any obligation to such retail buyer.
    6. You represent and warrant to Manheim that: (i) you are solvent; (ii) you are a licensed or duly authorized motor vehicle dealer in good standing or otherwise authorized to sell or buy on a commercial wholesale basis in the relevant jurisdiction(s); (iii) you will comply with all applicable federal, state, and local laws and regulations and industry standards in the course of your performance hereunder; (iv) that any Vehicle you purchase is purchased solely for resale; and (v) if you are the representative of a person or entity you represent that you are duly appointed and authorized to purchase Vehicle(s) on behalf of such person or entity and the above are true as to such person or entity.
    7. Seller represents and warrants that: (i) Seller is the true and lawful owner of the Vehicle being sold, or that Seller is duly appointed and authorized to sell the Vehicle on behalf of the true and lawful owner (in which case, Seller agrees to fully disclose the identity of the true and lawful owner and the fact of the representative relationship); (ii) the Vehicle is free from all liens and encumbrances; (iii) Seller has good right and full power and authority to sell and transfer title to the Vehicle; and (iv) Seller will warrant and defend the Vehicle against the claims and demands of all persons whomsoever.For the avoidance of doubt, Seller agrees that, unless fully disclosed before sale, if any Vehicle or its title consigned by Seller to, and sold by, Manheim to a buyer in good faith is subject to any prior claim of any nature against the Vehicle or its title, or is repossessed, impounded, or otherwise suffers any defect that would allow a third-party to make a colorable claim against the Vehicle or its title and would frustrate Buyer’s right to possess, re-sell, and own the Vehicle with quiet enjoyment, regardless of Seller’s fault or knowledge of same at the time of the sale, Manheim may, in its sole discretion, unwind the sale, and Seller will return any sale proceeds upon demand by Manheim in addition to paying any reasonable documented expenses associated with unwind of the sale, notwithstanding Manheim’s inability to return the Vehicle or its title to the Seller.
    8. You agree that any amounts owing to Manheim may be deducted from any proceeds or other property due to you from Manheim and that Manheim may stop payment or refuse to authorize payment on any check or draft to you and hold any consigned Vehicles pursuant to this right of setoff. You agree that Manheim may hold any of your property in Manheim’s possession for a reasonable period of time pending any odometer fraud, VIN-switch, or similar investigation, whether such investigation is initiated by Manheim in its sole and absolute discretion or by any governmental authority.
    9. Seller acknowledges responsibility for any and all representations regarding mileage, including completion and execution of the required odometer mileage statement pertaining to any Vehicle on the invoice for such Vehicle, on the certificate of title for such Vehicle, and/or on any separate odometer verification statement attached to or accompanying such certificate of title.
    10. Upon payment to Seller, Manheim will be subrogated to all of Seller’s and Buyer’s respective rights, and Seller and Buyer agree to promptly take any action or sign any document deemed necessary, in Manheim’s sole discretion upon Manheim’s request, to secure such rights and do nothing to prejudice them.
    11. You agree that Manheim is responsible for neither the actual odometer mileage on any Vehicle nor the information contained in the odometer mileage statement which Seller, as transferor, is required to complete and deliver, and which Buyer, as transferee, is required to acknowledge.
    12. You agree that Manheim is not responsible for, and makes no representations regarding, any Data (as defined in Section IV below).
    13. You agree that all representations or disclosures concerning any Vehicle are solely the responsibility of Seller, whether made on the block, before the sale, or otherwise, and you acknowledge and agree that Manheim has made no representations or disclosures whatsoever about any Vehicle, including any representation as to the accuracy of data included in Vehicle history or condition reports, regardless of whether Manheim has interpreted such information as a courtesy to you or on your behalf.
    14. You acknowledge and agree that any Vehicle you purchase at Manheim is purchased for resale in the form of tangible personal property in the regular course of business and is the sort usually purchased by you for resale.  If any Vehicle is used for any purpose other than for resale, you will promptly pay directly to the proper taxing authorities such sales or use tax as may then be accrued and become payable. As a Buyer, you further certify that you hold a retail sales tax registration certificate, license, or other permit, issued by the sales taxing authority of your city, state/territory, county, and/or country, as appropriate.
    15. You acknowledge and represent that, when conducting business with Manheim, you are acting in an arms-length business transaction and that you are familiar with the wholesale automobile remarketing industry and the nature of the Vehicles you purchase.If you purchase a Vehicle that is not of the sort you typically purchase, and/or you are unfamiliar with the type of Vehicle you purchase (by way of example only, exotic Vehicles, highline Vehicles, “kit” Vehicles, or Vehicles specially manufactured or manufactured for a specific use or purpose), with respect to which typical data or market values may not be available or accurate, you purchase such Vehicles at your peril, and Manheim will have no liability or responsibility for vagaries in the data or market values accompanying such a Vehicle.
    16. If the Vehicle is purchased “for export only” or equivalent, you will: (i) transport it out of the country as soon as reasonably practicable; (ii) not resell or use it domestically; (iii) not further transform or alter the Vehicle domestically; and (iv) provide us with satisfactory evidence of exportation of the Vehicle upon request.
    17. If, with respect to a Vehicle sold, a unilateral mistake is or was made by Manheim or Seller in setting the reserve or sale price of a Vehicle, Manheim may, in its sole discretion, unwind such sale, and Buyer agrees to return any such Vehicle at Manheim’s request, and Manheim will, upon receipt of such Vehicle, return the purchase price to the Buyer.
    18. MANHEIM RESERVES THE RIGHT TO VOID, UNWIND, ADJUST, OR CANCEL ANY TRANSACTION IN ITS SOLE AND ABSOLUTE DISCRETION.
14. Payments: Payments for Vehicles must be made by the registered Buyer purchasing those goods or services, either directly or through a pre-established direct floor planner acting on that Buyer‘s behalf. Although we retain the discretion to make appropriate exceptions, other third-party payments generally will not be accepted. Payments must be made in good funds and in a form acceptable to Manheim. Manheim reserves the right, in its sole discretion, to change the forms and types of payment that are accepted by Manheim. In addition to any other rights Manheim may have, you agree, in accordance with the Late Payment Policy found in the Manheim Marketplace Policies, to pay a late fee on any unpaid obligations to Manheim not received by us in full, on time, and otherwise in accordance with these Terms and Conditions.  In addition to the terms set forth in Subparagraph 13(e), you agree that, if any electronic debit or check or draft we present on your bank account is returned unpaid, you will pay an additional service charge of $100.00, or the maximum amount permissible by applicable law. Manheim may waive these fees in its sole discretion.
15. Electronic Payment Authorization: You agree that, if you designate a bank account for payment of amounts you owe us, including, but not limited to, by adding a bank account to your online profile, we may use such account information to initiate ACH entries to your bank account, including debit entries for amounts you owe us from time to time as such amounts become due, credit entries for amounts we owe you, and debit or credit entries in any amount necessary to correct an error.  You further agree and acknowledge that you will, or Manheim may, add Manheim as an approved ACH vendor for your account and you consent to and acknowledge any and all ACH Terms and Conditions.  You understand that, other than account information we routinely make available to you online, we will not provide any notice to you prior to initiating entries and that you are responsible for ensuring that your account balance is sufficient to cover debits for amounts you owe us. You agree that any authorizations we initiate to your bank account must comply with applicable law and NACHA Operating Rules. This authorization is in addition to, and does not terminate or alter, any other authorization for electronic payments (including ACH authorizations) that we have on file or that you provide us in the future.
16. Individual Guaranty: By entering our private facilities and/or using our services, you personally guarantee full payment and performance of all obligations incurring to Manheim created by your participation with Manheim, whether personally or as a representative of another entity. The principal debtor is (i) any Buyer or Seller for whom you (a) are a registered owner with AuctionACCESS or (b) consent to a Manheim bill(s) of sale, and (ii) any customer for whom you order a product or service from us. Liability under this general guaranty is in addition to your dealership‘s liability and is joint and several with such dealership’s liability. This is a general guaranty of payment and performance and not merely a guaranty of collection.
17. Vehicle Release: Manheim will authorize a Vehicle Release once it determines a consigned Vehicle is cleared to be released based on the rules outlined below. The “Vehicle Release” is the physical sheet of paper or on-screen electronic display given or shown to the Security Agent at the auction gate to look up a Vehicle’s release status.  It contains a bar code and relevant Vehicle and ownership information. Possession of a physical or electronic Vehicle release and a valid driver’s license or other legal form of photo identification is required to remove a Vehicle from auction but does not guarantee a Vehicle is eligible to be released. 
    
    1. Eligibility for Release. The Vehicle will only be released to someone who presents a valid Vehicle Release for such Vehicle.  A Vehicle is eligible for release from Manheim when all the following conditions are met:
       1. The Vehicle does not have a pending arbitration.
       2. The post-sale inspection (if ordered) is complete.
       3. The owner, or dealership purchasing the Vehicle, does not have an active collection hold.
       4. The Vehicle (if a purchase) has been paid in full, subject to the following:
          
          1. Based on the owner’s or purchasing dealership’s payment and/or credit history with Manheim, Manheim may allow the Vehicle to be released before payment is received;  
          2. Based on the type of payment remitted, Manheim may hold the Vehicle for 72 hours after receipt of payment to ensure that funds have cleared; and/or 
          3. Vehicles being paid for by floor plan may require approval from the floor plan provider prior to release, and
       5. Manheim is otherwise satisfied, in its discretion, that the Vehicle is appropriate for release.

          Once these conditions are met, Manheim will note in its electronic file for the Vehicle that it is cleared for release.

    2. Obtaining a Vehicle Release. An electronic Vehicle Release is available through manheim.com on desktop and mobile devices.  Paper Vehicle Releases can be obtained from an auction employee, the self-service kiosk, or printed directly from manheim.com.  As a matter of convenience, Manheim may allow clients to print a Vehicle Release before the Vehicle is eligible for release in order to avoid the need to return to the main office to obtain a Vehicle Release. For electronic Vehicle Releases, the online page will be automatically updated when the Vehicle is eligible for release.
    3. Offsite Vehicle Release. For Vehicles in a location other than Manheim premises at the time of pick up, Buyer and Seller are responsible for verifying the Vehicle Release and legal form of photo identification before releasing the Vehicle or taking possession of the Vehicle.
18. No Manheim Liability for Vehicles:
    • Disclaimer. Unless expressly agreed to the contrary in a writing signed by us, we are not a bailee of your property, consigned or otherwise. If you leave your Vehicles or other property unattended on our premises or otherwise in our care, regardless of the reason or the actual physical location of such Vehicle, you are solely responsible for any and all damage, theft, or loss relating to or caused by such property, regardless of our knowledge or involvement.
    • Force Majeure. In the event of a natural disaster, Manheim follows the guidelines contained in its business continuity plan.  In such an event, Manheim’s primary focus is the safety and security of its team members and customers. Manheim has no responsibility or liability for damage to consigned inventory or for any delay or failure by Manheim to perform any services or other obligations hereunder as a result of any act of God, fire, flood or other weather-related event, earthquake, governmental or regulatory act, epidemic, pandemic, riot, insurrection, sabotage, war, terrorism, supply shortage, power outage or Internet failure, labor strike or work stoppage, or any other cause beyond Manheim’s reasonable control (collectively “Force Majeure Events”).
    • Abandoned Vehicle Removal.  Upon written notice, including, but not limited to e-mail, Manheim may require Buyer or Seller, as applicable, to immediately remove any Vehicles from Manheim’s premises.  If Buyer or Seller fails to remove the Vehicles within thirty (30) days of such notice, Manheim may, at your sole cost and expense, (a) proceed to transfer or sell any such Vehicle to satisfy any obligations to us or (b) treat it as abandoned property and dispose of it where permissible by applicable law.
19. Transportation of Vehicles: We may, upon your request and/or as deemed necessary or desirable by us, from time to time, in our sole and absolute discretion, transport or arrange, via third parties, to transport Vehicles belonging to you at your sole cost and expense. In such cases, we are not liable for theft, conversion, loss, injuries, damage, claims, expenses (including legal fees), suits, or demands related to such Vehicles (collectively, “Transportation Claims”), howsoever caused and to whomever caused. Such Vehicles are being transported for you, and you assume all risks associated with the transportation of your Vehicles. You further acknowledge and agree that your only claim or remedy for Transportation Claims, if any, will be to and against the third-party carrier, its insurer, your own insurer, or the third-party that caused the alleged damage, and not to, against, or involving us.

    III.  VEHICLE ARBITRATION:

20. Vehicle Arbitration Rules: You agree and acknowledge that:
    
    1. you have received and read a copy of our prevailing National Auto Auction Association Arbitration Policy, including any Manheim addendums or additional arbitration polices, each of which are available at https://site.manheim.com/en/marketplace-policies/us-policies.html (collectively, the “Manheim Arbitration Policies”);
    2. you understand and are bound by the Manheim Arbitration Policies, which may be amended unilaterally by us from time to time and posted on the Manheim Marketplace Policies, when participating in any transactions at Manheim; and
    3. all disputes arising in connection with the purchase or sale of a Vehicle through Manheim will be resolved in accordance with the Manheim Arbitration Policies, and our decision as arbitrator will be final and binding upon you with respect to any such transaction.

        

       IV.  DATA USAGE:

21. Information Sharing: Subject to applicable law, you authorize us to pull, gather, obtain, receive, share, sell, disseminate, and disclose financial, credit, transactional, and other information about you and your Vehicles in our discretion, including, without limitation, consumer reports, credit histories and limits, buy and sell histories, check information, collateral location and status, condition, and recall information, and eligibility status (for purposes of this paragraph, “Your Information”), from and with credit bureaus, financial institutions, trade creditors, affiliates and third parties, including without limitation AuctionACCESS, Auction Insurance Agency, other auction companies, marketing partners, and other customers, for any reason we deem necessary, including, without limitation, assessing your creditworthiness, collecting any outstanding debt you may owe now or in the future, and obtaining intercreditor, subordination, or similar agreements related to you; and you hereby ratify any such prior acts. The information sharing authorized herein is in addition to any information sharing authorized in any Manheim privacy policy. You may opt out of allowing your consumer report (if any) to be shared among our affiliates or disseminated or disclosed for marketing purposes (only) by writing to Manheim, ATTN: Credit Bureaus, 6325 Peachtree Dunwoody Road, Atlanta, Georgia 30328.
22. Personal Information: You hereby represent and warrant that any personal data or consumer information that is subject to special treatment under any federal or state privacy or consumer protection Law (“Personal Data”) provided to Manheim is free from restriction on use and  submission of any such Personal Data complies with the other terms and conditions herein, which include any Manheim privacy policy.
23. Notwithstanding any provision of these Terms to the contrary, any data previously generated by any transaction, Vehicle, or stored or maintained by any such Vehicle while in possession of Manheim including, without limitation, any data maintained in any ECU, event data recorder, head unit, infotainment system and/or telematics devices (together, “Data”) may be accessed, disclosed, processed, aggregated, maintained, used to generate derivative or other data or reports or otherwise used as determined by Manheim in its sole discretion. Buyer, Seller, and any Representative agree that each is solely responsible for any liability or claims arising from the delivery to, and use by, Manheim of Data and hereby indemnifies Manheim from any and all third-party claims relating to the same. Buyers may have certain rights to possess Data contained in a Vehicle following sale. Other than such rights, Buyer and Seller agree and acknowledge that they hereby waive any rights or interest in, and grant to Manheim all rights in, the Data. Buyer further agrees and acknowledges that there is no expectation that a Vehicle will include any Data.

    V.  INTELLECTUAL PROPERTY:

24. Contributions to Manheim: You agree and acknowledge that by submitting ideas, suggestions, concepts, documents, and/or proposals (“Suggestions”) to Manheim, that:
    
    1. you have all necessary rights to share such Suggestions with Manheim and that the Suggestions are not subject to restrictions by third parties;
    2. Manheim is free to use and/or share such Suggestions as it sees fit;
    3. Manheim may have already conceived, contemplated, or developed something similar to the Suggestions;
    4. Manheim may incorporate the Suggestions into its products and services, now or in the future, and Manheim does and will own such products and services; and
    5. Manheim is not obligated to you in any way for such Suggestions.
25. Manheim’s Proprietary Rights: You agree and acknowledge that Manheim’s products and services, the Data (as defined in Section IV, paragraph 22, above), and any software used in connection with Manheim’s products and services, and the materials on the various Manheim websites, contain proprietary and confidential information that is protected by intellectual property and other laws. Further, you agree and acknowledge that in the performance of its services, Manheim may generate materials, including, but not limited to, photographs, reports, visuals, narratives, vehicle and transactional records, and other data and documents derived from the foregoing, and that Manheim will own the rights to such materials. Except as explicitly provided in these terms and conditions, you may not take, appropriate, convert, distribute, transmit, display, reproduce, modify, create derivative works from, or otherwise exploit any of the Manheim generated materials. Manheim owns many trademarks, tradenames, and service marks, including, but not limited to, the marks Manheim and Manheim.com. You may not use any Manheim trademark or service mark without Manheim’s prior written consent.

    VI. CLAIMS & DISPUTES:

26. CHOICE OF LAW AND CONSENT TO JURISDICTION: THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF GEORGIA (U.S.A.), WHERE MANHEIM MAINTAINS ITS HEADQUARTERS, AND WITHOUT REGARD TO GEORGIA’S INTERNAL CONFLICTS OF LAW ANALYSIS. IF ANY CLAIM OR DISPUTE BETWEEN MANHEIM AND YOU IS NOT ARBITRATED UNDER PARAGRAPH 27 HEREOF, YOU AGREE THAT EXCLUSIVE JURISDICTION AND VENUE FOR SUCH CLAIMS AND DISPUTES WILL EXIST IN THE FEDERAL AND STATE COURTS LOCATED IN FULTON COUNTY, GEORGIA.
27. ARBITRATION REQUIREMENT; CLASS ACTION WAIVER; JURY WAIVER:
    
    1. ARBITRATION AGREEMENT. YOU AGREE TO ARBITRATE ANY DISPUTE OR CLAIM THAT YOU MAY HAVE WITH MANHEIM THAT ARISES OUT OF OR RELATES IN ANY WAY TO THESE TERMS AND CONDITIONS OR TO ANY PURCHASE, SALE, OR OTHER AUCTION OR CREDIT TRANSACTION WITH MANHEIM (HEREINAFTER, “CLAIMS”). ANY ARBITRATION CONDUCTED PURSUANT TO THIS PROVISION WILL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT YOUR CLAIMS WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. YOU ACKNOWLEDGE THAT MANHEIM MAY (BUT WILL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY CLAIMS THAT IT MAY HAVE AGAINST YOU, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SUBPARAGRAPH 27(a).
    2. ABILITY TO OPT OUT. YOU MAY OPT OUT OF SUBPARAGRAPH 27(a) ONLY, AND SUCH OPT OUT SHALL ONLY APPLY TO SUBPARAGRAPH 27(a) AND NOT TO ANY OTHER ARBITRATION PROVISION(S) CONTAINED IN ANY OTHER AGREEMENTS YOU MAY HAVE WITH MANHEIM NOW OR IN THE FUTURE) FOR ANY FUTURE BUSINESS WITH MANHEIM AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT YOUR DEALINGS WITH MANHEIM. TO EXERCISE THIS OPT OUT RIGHT, YOU MUST EMAIL MANHEIM WRITTEN NOTICE OF YOUR ELECTION TO OPT OUT AT EMAILNOTICES@COXAUTOINC.COM NO LATER THAN 30 DAYS AFTER YOUR INITIAL ACCEPTANCE OF THESE TERMS AND CONDITIONS AS SET FORTH IN THE FIRST PARAGRAPH HEREOF. THE PROCEDURE SPELLED OUT HEREIN IS THE ONLY WAY TO OPT OUT OF SUBPARAGRAPH 27(a), AND ANY ATTEMPTS TO OPT OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.
    3. CLASS ACTION WAIVER. ANY ARBITRATION PROCEEDING UNDER SUBPARAGRAPH 27(a) WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED, AND YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST MANHEIM. TO THE EXTENT THAT YOU OPT OUT OF SUBPARAGRAPH 27(a) BY FOLLOWING THE PROCEDURE SET FORTH ABOVE, OR IF SUBPARAGRAPH 27(a) IS FOUND INAPPLICABLE TO YOUR CLAIMS, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF OUR AGREEMENT AND THESE TERMS AND CONDITIONS AND THAT IT MAY NOT BE SEVERED. IF THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE IN SUBPARAGRAPH 27(a)WILL BE NULL AND VOID.
    4. ARBITRATION PROCEDURES/ARBITRATOR AUTHORITY. ANY DISPUTE OR CLAIM SUBJECT TO ARBITRATION PURSUANT TO SUBPARAGRAPH 27(a) WILL BE SUBMITTED TO BINDING ARBITRATION ADMINISTERED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (“JAMS”) PURSUANT TO ITS STREAMLINED ARBITRATION RULES AND PROCEDURES AS IN EFFECT AT THE TIME OF THE SUBMISSION OF SUCH DISPUTE OR CLAIM (THE “JAMS STREAMLINED RULES”). THE DISPUTES AND CLAIMS SUBJECT TO ARBITRATION PURSUANT TO SUBPARAGRAPH 27(a) WILL BE RESOLVED BY A SINGLE ARBITRATOR SELECTED PURSUANT TO THE JAMS STREAMLINED RULES. THE ARBITRATOR WILL BE BOUND BY AND WILL STRICTLY ENFORCE THESE TERMS AND CONDITIONS, AND MAY NOT LIMIT, EXPAND, OR OTHERWISE MODIFY ANY OF THESE TERMS AND CONDITIONS. THE ARBITRATOR MAY AWARD ANY RELIEF THAT A COURT OF LAW COULD, APPLYING THE LIMITATIONS OF LIABILITY CONTAINED IN THESE TERMS AND CONDITIONS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF IF PERMITTED BY LAW – BUT THE INJUNCTIVE RELIEF AWARDED BY THE ARBITRATOR MAY NOT EXTEND BEYOND OUR DEALINGS WITH EACH OTHER. THE LAWS OF THE STATE OF GEORGIA WILL APPLY TO ALL CLAIMS. ANY ARBITRATION WILL BE HELD IN ATLANTA, GEORGIA, UNLESS OTHERWISE AGREED UPON BY THE PARTIES IN WRITING.  EACH PARTY WILL BEAR ITS OWN EXPENSES IN THE ARBITRATION AND WILL SHARE EQUALLY THE COSTS OF THE ARBITRATION; PROVIDED, HOWEVER, THAT THE ARBITRATOR WILL AWARD MANHEIM ANY COSTS AND FEES TO WHICH MANHEIM MAY BE ENTITLED UNDER PARAGRAPH 29 IN CONNECTION WITH ANY INDEMNIFICATION CLAIM, AND MAY ALSO, IN HIS OR HER DISCRETION, AWARD COSTS AND FEES TO MANHEIM IF IT IS DETERMINED THAT YOU SUBMITTED OR FILED ANY ARBITRATION IN BAD FAITH OR THAT YOUR CLAIMS AGAINST MANHEIM HAVE NO REASONABLE LEGAL BASIS.
    5. APPLICATION OF FAA/SURVIVAL. YOU AGREE THAT YOUR TRANSACTIONS WITH MANHEIM EVIDENCE TRANSACTIONS IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PARAGRAPH 27 (NOTWITHSTANDING THE APPLICATION OF GEORGIA LAW TO ANY UNDERLYING CLAIMS AS PROVIDED FOR  ABOVE). YOU ALSO AGREE THAT THIS PARAGRAPH 27 SURVIVES ANY TERMINATION OF THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN US.
    6. WAIVER OF JURY TRIAL.  AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, YOU KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY AGREE TO WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION OF ANY DISPUTE OR CLAIM, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG YOU, MANHEIM, OR ANY OTHER PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO YOUR INTERACTION WITH MANHEIM AND/OR THESE TERMS AND CONDITIONS OR ANY OTHER RELATED POLICY.  YOU ALSO AGREE NOT TO SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
28. DISCLAIMER OF WARRANTIES AND CONDITIONS: UNLESS OTHERWISE SPECIFICALLY SET FORTH HEREIN OR IN A MORE SPECIFIC AGREEMENT YOU MAY HAVE OR MAKE WITH MANHEIM, ALL PRODUCTS AND SERVICES PROVIDED TO YOU BY MANHEIM ARE ON AN “AS-IS” BASIS. MANHEIM 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 PRODUCTS OR SERVICES PROVIDED TO YOU BY MANHEIM, AND CANNOT GUARANTEE THAT ANY SERVICES PROVIDED TO YOU WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT SUCH SERVICES WILL BE FREE OF DEFECTS, VIRUSES, OR OTHER HARMFUL COMPONENTS. 
29. INDEMNIFICATION: UNLESS CONTRARY TO APPLICABLE LAW, YOU AGREE JOINTLY AND SEVERALLY WITH ANY BUYER OR SELLER (AS THE CASE MAY BE), TO INDEMNIFY, DEFEND, AND HOLD HARMLESS MANHEIM, ITS SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, BORROWED SERVANTS, VOLUNTEERS, INDEPENDENT CONTRACTORS, AND AGENTS (EACH, A “MANHEIM PARTY” AND COLLECTIVELY, THE “MANHEIM PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DEMANDS, CAUSES OF ACTION, DEBTS, OR LIABILITIES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR RELATING TO:
    
    1. ANY PERSONAL INJURY OR PROPERTY DAMAGE THAT YOU MAY CAUSE, EITHER SOLELY BY YOUR OWN ACTIONS OR JOINTLY WITH OTHERS (INCLUDING THE MANHEIM PARTIES), TO MANHEIM, ANY PERSONNEL OR CUSTOMERS OF MANHEIM, OR ANY THIRD PARTIES, OR THE PROPERTY OF ANY OF THE FOREGOING;
    2. THE BREACH OR ALLEGED BREACH OF ANY AGREEMENT OR OBLIGATION HEREUNDER OR UNDER ANY OTHER AGREEMENT THAT YOU MAY HAVE WITH MANHEIM;
    3. ANY TRANSPORTATION CLAIMS;
    4. ANY ACTIONS THAT A MANHEIM PARTY MAY TAKE AS YOUR AGENT, REPRESENTATIVE, OR ATTORNEY-IN-FACT, PURSUANT TO SECTION 6 HEREOF OR OTHERWISE;
    5. YOUR USE OF ANY PRODUCTS OR SERVICES OF MANHEIM; ANY DESIGN DEFECT OR MECHANICAL FAILURE AFFECTING A VEHICLE (UNLESS SUCH DEFECT OR FAILURE WAS CAUSED SOLELY BY MANHEIM), INCLUDING ANY ISSUES RELATED TO THE CONDITION OR STATUS OF ANY ADVANCED DRIVER ASSISTANCE SYSTEMS (“ADAS”) IN THE VEHICLE, WHETHER OR NOT MANHEIM WAS AWARE OF ANY SUCH ISSUE;
    6. ANY USE OF DATA (AS DEFINED IN SECTION IV, PARAGRAPH 22, ABOVE) BY MANHEIM; AND
    7. ANY LIABILITY OR OBLIGATION, INCLUDING ANY CAUSED IN PART BY A MANHEIM PARTY, THAT MAY OTHERWISE ARISE FROM YOUR PARTICIPATION IN ANY SALE OR AUCTION CONDUCTED BY A MANHEIM PARTY, YOUR PRESENCE AT ANY PREMISES OWNED OR OPERATED BY MANHEIM, OR THE PROVISION OF PRODUCTS OR SERVICES TO YOU BY MANHEIM; AND
    8. ANY LIABILITY OR OBLIGATION, ARISING FROM ANY VEHICLEINCLUDING, BUT NOT LIMITED TO, THE PURCHASE OR SALE OF ANY VEHICLE, ANY MATTERS RELATING TO ODOMETER MILEAGE OR ODOMETER MILEAGE STATEMENTS, ANY DAMAGE OR CONDITION DISCLOSURES OR LACK THEREOF.
30. WAIVER AND RELEASE OF LIABILITY: YOU HEREBY WAIVE ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE, EITHER NOW OR IN THE FUTURE, AGAINST ANY MANHEIM PARTY, AND HEREBY RELEASE THE MANHEIM PARTIES FROM ANY AND ALL LIABILITY UNDER SUCH CLAIM OR CAUSE OF ACTION, IN EACH CASE TO THE EXTENT SUCH CLAIM OR CAUSE OF ACTION ARISES FROM OR RELATES TO:
    
    1. YOUR ENTITLEMENT TO THE PROTECTION OF ANY CONSUMER PROTECTION STATUTE;
    2. ANY BIDDING OR DISCLOSURE ISSUES THAT MAY OCCUR AT A SALE OR AUCTION CONDUCTED BY US, SUBJECT TO YOUR LIMITED RIGHTS UNDER THE MANHEIM ARBITRATION POLICIES;
    3. ANY TRANSPORTATION CLAIM;
    4. ANY DAMAGE TO YOUR VEHICLES OR OTHER PROPERTY LEFT OR STORED ON ANY PREMISES OWNED OR OPERATED BY MANHEIM, REGARDLESS OF COMPENSATION PAID TO US FOR SUCH STORAGE;
    5. ANY PERSONAL INJURY OR OTHER PROPERTY DAMAGE SUFFERED WHILE ON OR AROUND ANY PREMISES OWNED OR OPERATED BY MANHEIM;
    6. ANY USE OF DATA (AS DEFINED IN SECTION IV, PARAGRAPH 22, ABOVE) BY MANHEIM; AND  
    7. ANY ACTIONS TAKEN BY A MANHEIM PARTY AS YOUR AGENT, REPRESENTATIVE, OR ATTORNEY-IN-FACT, PURSUANT TO PARAGRAPH 6 HEREOF OR AS MAY OTHERWISE BE AUTHORIZED.
31. LIMITATIONS OF LIABILITY AND TIME: UNLESS APPLICABLE LAW PROVIDES OTHERWISE, UNDER NO CIRCUMSTANCES WILL THE MANHEIM PARTIES BE LIABLE TO YOU 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 ONE OR MORE OF THE MANHEIM PARTIES ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MANHEIM PARTIES, COLLECTIVELY, TO YOU IN CONNECTION WITH ANY CLAIMS OR CAUSES OF ACTION THAT YOU MAY ASSERT, WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOU TO MANHEIM FOR THE PRODUCT(S) OR SERVICE(S) AT ISSUE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION BEING ASSERTED.  YOU FURTHER AGREE THAT ANY CLAIMS OR CAUSES OF ACTION THAT YOU ASSERT AGAINST THE MANHEIM PARTIES MUST BE FILED OR OTHERWISE FORMALLY COMMENCED IN THE RELEVANT FORUM WITHIN TWELVE (12) MONTHS OF THE LAST EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION BEING ASSERTED, OR WITHIN THE TIME REMAINING UNDER THE APPLICABLE STATUTES OF LIMITATION – WHICHEVER TIME PERIOD IS SHORTER – AND THAT ANY CLAIMS OR CAUSES OF ACTION NOT FILED OR COMMENCED WITHIN SUCH PERIOD WILL BE FOREVER BARRED.

    VII.  SPECIAL CONSIDERATIONS (Mobile Sales; Additional Terms for Digital Sales, Non-Manheim Locations):

32.  Mobile Sales: If we agree to provide any auctioneering or other services to you at a facility other than a Manheim facility (whether owned by you or an independent third party), we will not be liable for theft, conversion, loss, injuries, damage, claims, expenses (including legal fees), suits, demands, or alleged regulatory or zoning violations related to such facilities or the Vehicles stored on, or sales events conducted at, such facility, and these terms and conditions will otherwise apply in all respects to such services. Unless agreed otherwise by us in writing, those services will be provided to you at the rates then applicable at our nearest permanent facility, which rates are subject to change at any time. You also agree to reimburse Manheim for any reasonable out-of-pocket expenses we actually incur in connection with services provided to you at such off-site locations. For any Vehicles physically located away from a Manheim facility when auctioned (whether at an off-site sales event hosted by you or through Manheim’s online platform), the Seller will have three (3) business days, inclusive of the sale date, to make the Vehicle available to the Buyer.
33. Digital Sales:
    
    1. Applicable to All Digital Sales. In addition to the terms and conditions set forth above, the following provisions apply to all internet-based and digital application sales (e.g. sales occurring on Manheim.com, OVE.com, Express Direct, or Manheim Express) both in real time and virtually (each, a “Digital Platform”).  For purposes of this section, “Participant” means a user of a Digital Platform, whether as a Seller or Buyer of a Vehicle.
       
       1. Accuracy of Vehicle Information. Information about a particular Vehicle, including images, listed on any Digital Platform is supplied by the Seller of the Vehicle, not by Manheim, and Manheim does not make any representations or warranties with respect to the accuracy or completeness of such information or the condition of any Vehicles. Responsibility for the information contained in Vehicle listings lies with each Seller. When establishing your account, Seller agrees to these Terms and Conditions and all policies located in the Manheim Marketplace Policies.
       2. Right to Monitor/Alter/Remove Postings. Manheim reserves the right (but assumes no obligation) to delete, move, or edit any listings, ads, or other postings that Manheim considers, in its sole and absolute discretion, unacceptable or inappropriate. By using any Digital Platform, Participant (for itself and on behalf of each of its representatives) agrees not to post or transmit any defamatory, abusive, obscene, threatening, misleading, or illegal material, or any other material that infringes on the rights of others or interferes with the ability of others to use any Digital Platform. Manheim will not, in the ordinary course of business, review the content of private electronic messages that are not addressed to Manheim. Manheim, however, may occasionally release information concerning such communications when release is appropriate to comply with law (including disclosure in response to a request from a law enforcement agency), to enforce these Terms and Conditions, or to protect the rights, property, or safety of visitors any Digital Platform.  Seller agrees that Manheim may reject any Vehicle listing in Manheim’s discretion. Seller also agrees that positioning of listings is at Manheim’s discretion.
       3. Bid/Buy Now/ Make an Offer binding obligations. Buyer understands and agrees that it may not retract any bids to purchase a Vehicle via a Digital Platform without Manheim’s express written permission. The submission of a bid for a Vehicle by (or on behalf of) Buyer automatically becomes a legally binding contract to purchase the Vehicle from the Seller at the price and on the terms bid by (or on behalf of) Buyer. For avoidance of doubt, a bid constitutes a legally binding contract even if they have not met the floor price on the Vehicle.
       4. Proxy Bidding. Buyer may use the maximum (proxy) bidding feature to automatically bid on Vehicles listed on the Digital Platforms. The proxy bidding feature enables Buyer to submit a maximum bid amount for a specific Vehicle and authorizes the applicable digital platform to bid on the Vehicle on Buyer’s behalf up to the maximum amount set by the Buyer.
       5. Vehicle Availability “Unbuy” Policy.
          1. This Unbuy Policy applies only to Vehicles purchased on a Digital Platform facilitated through a Manheim auction.  Digital sales purchases facilitated through its independent partner auctions are not covered by this policy. For any Vehicle listed and sold on a Digital Platform and facilitated through a Manheim auction, Seller must make the Vehicle available at the listed pickup location within three (3) business days of the sale date. In addition to other arbitration remedies Manheim or the Buyer may invoke, the Seller may be assessed a fee of up to $500 to compensate the Buyer for each sale not fulfilled (“Buyer Inconvenience Fee”), which will be credited to the Buyer as follows: (i) for Vehicles with a sales price of less than $1000, the corresponding credit issues to the Buyer will be $100, (ii) for Vehicles with a sale price of more than $1000 but less than $3000, the corresponding credit issued to the Buyer will be $300, and (iii) for Vehicles with a sale price of more than $3000, the corresponding credit issued to the Buyer will be $500.
          2. Process. The Unbuy Policy, available to Buyers in good standing, may be applied to digital transactions facilitated through Manheim auctions where (1) the Buyer had a reasonable expectation that it had purchased the Vehicle and (2) the Seller does not provide the Vehicle to complete the transaction within three (3) business days of sale date (the “Digital Sale Delivery Deadline”).  Upon Seller’s failure to deliver the vehicle prior to the Digital Sale Delivery Deadline, Buyer may, within eleven (11) calendar days of the Digital Sale Delivery Deadline, submit a written request for Manheim to apply this Unbuy Policy (each an “Unbuy Request”).  Upon receipt of an Unbuy Request Manheim shall review such Unbuy Request and determine, in its sole and absolute discretion, whether a Buyer inconvenience Fee is warranted in the applicable transaction.

             When Manheim processes an Unbuy Request, there are four (4) reasons that may qualify the Unbuy Request for a Buyer inconvenience Fee. Those are, when a Vehicle is:

             * Any Price variance where a reasonable buyer knew or should have known of the discrepancy can disqualify a Vehicle from application of this Unbuy policy (in Manheim’s sole and absolute discretion).

             Where such Buyer Inconvenience Fee is assessed to the Seller, a disbursement is applied to the Buyer’s account. This Unbuy Policy will not apply to any transaction for which the Vehicle was made available to Buyer and Buyer subsequently arbitrated or unwound the transaction.

             1. Sold in another venue
             2. Listed in Error
             3. Listed at an Incorrect Sales Price*
             4. Not Delivered Timely 
       6. Temporary Suspension. In addition to any other right Manheim may have, Manheim may at any time suspend Your access to any Digital Platform.
    2.  OVE:
       
       1. Independent Partner Auctions. Participant may engage with an independent partner auction while using the OVE website. Participant acknowledges and agrees that by transacting business through an independent auction, Participant is using such independent auction at its own risk. By using an independent auction, Participant further acknowledges and agrees that there may be additional terms and conditions applicable to the transaction, and Participant will make themselves aware of such terms and conditions.  For the avoidance of doubt, Participant acknowledges and agrees that Manheim shall have no liability to Participant for any transaction that occurs on or through an independent auction.  
       2. Use Restrictions.
          1. Neither Participant nor its representatives may use the services provided via the OVE platform to send unsolicited bulk and/or commercial messages (“spamming”). Participant may not use information concerning other users of the OVE website, or the Vehicles they have listed or searched for on the OVE website (including listing information, usernames, email addresses, telephone numbers, and/or other information), for any purpose other than to explore the potential purchase or sale of a listed Vehicle.
          2. Neither Participant nor any of Participant’s representatives may contact another Participant, Buyer, or Seller to sell or purchase a Vehicle listed on OVE outside of OVE. Repeated attempts to do so may result in termination of Participant’s access to OVE.
    3. Manheim Express:
       
       1.  Guaranteed First Bid.  The Guaranteed First Bid Program allows You to sell Vehicles to Manheim or a marketing company or other intermediary Manheim designates (a “Purchase Designee”) for a specified amount subject to these Terms and Conditions and the additional terms and conditions set forth in this Paragraph 34(c)(i).  First Bids are generated using a proprietary Vehicle appraisal tool (the “Appraisal Tool”) but remain subject to setting in Manheim’s discretion. Some features of the Guaranteed First Bid Program may not be available in all territories or jurisdictions.
          1. Eligibility and Excluded Vehicles. Manheim will determine each Vehicle’s eligibility for the Guaranteed First Bid Program based on Manheim’s proprietary algorithms and other evaluation tools, which may be changed from time to time in Manheim’s sole discretion. Although Manheim reserves the right to make appropriate exceptions, Manheim generally will NOT purchase any of the following through the Guaranteed First Bid Program:

             a)    Vehicles for which no Kelley Blue Book value is available (e.g., current model year or newer, exotics, etc.);
             b)    Vehicles subject to recall or investigation by a government agency;
             c)    reconstructed or salvage Vehicles;
             d)    Vehicles without a valid Vehicle Identification Number (VIN);
             e)    Vehicles older than 24 model years;
             f)    Vehicles that have over 300,000 miles on the odometer;
             g)    Vehicles with altered drivelines or bodies or illegal or non-functioning emissions equipment;
             h)    Vehicles that we would value at less than $1,000 (using the valuation method of our choice);
             i)    Vehicles with a First Bid greater than the maximum amount Manheim designates for the Guaranteed First Bid Program (which is determined by Manheim in its sole discretion and may change from time to time); and
             j)    Vehicles that Manheim determines to be ineligible for a First Bid based on Seller’s responses to the Vehicle questionnaire submitted through the App., or information entered by a Manheim concierge.

          2. Obtaining a First Bid. You may obtain a First Bid by accurately completing, or having a Manheim concierge complete, a simple questionnaire about the Vehicle through the App.
          3. Redeeming a First Bid. Manheim will purchase a Vehicle for which a First Bid was generated, provided that the following conditions are met and Seller has otherwise complied with the Terms:
             
             1. the Vehicle is not an Excluded Vehicle, as described above in Section 36(c)(i)(1);
             2. Seller has listed the Vehicle for sale through the Manheim Marketplace for two (2) sales cycles (each cycle is one day ending at 4:00 pm Eastern Time (“Listing Period”);
             3. The Vehicle does not sell during the Listing Period;
             4. Seller requests to redeem the First Bid and delivers the Vehicle to the location designated by Manheim within seven (7) days (not counting Sundays) after expiration of the Listing Period;
             5. Seller provides the Vehicle history report (“VHR”) required by Manheim or the Purchase Designee (e.g. Manheim Auctions require Experian’s AutoCheck VHR);
             6. The Vehicle passes an inspection performed by the Purchase Designee upon delivery by Seller, during which a representative of the Purchase Designee will verify the Vehicle’s make, model, year, condition and other criteria; and
             7. Seller has complied with the NAAA Arbitration Policy then in effect with respect to the Vehicle, including making all required disclosures.
          4. Completing the Purchase. Upon satisfactory completion of the conditions listed above in Paragraph 34(c)(i)(3) and receipt of a valid and transferable certificate of title for the Vehicle, the Purchase Designee will promptly consummate the purchase and pay Seller the amount of the First Bid (subject to any adjustments based on the inspection and verification process as set forth below). Details on the location of the Purchase Designee and other information you may need during this process are available from the Manheim sales representative and through the Manheim Express App.
          5. Changes to the Questionnaire Responses. Any modification or change to a response in the questionnaire will nullify the First Bid, and Seller will have to request a new First Bid.
          6. Inaccurate or Misleading Vehicle Information. Any inaccurate or misleading responses to the questionnaire (or other Vehicle information or Data (as defined in Section IV, Paragraph 24, above) provided by Seller) will entitle Manheim to, in its sole and absolute discretion: (1) invalidate or revoke the First Bid, (2) make an Adjusted First Bid (as described below in Paragraph 34(c)(i)(7)), (3) otherwise subject the Seller to remedies under the Manheim Arbitration Policy then in effect, or (4) revoke Seller’s ability to access or use the App and/or the services and facilities of Manheim and its affiliates more broadly.  If the information provided about the Vehicle is provided (input) by a Manheim concierge, and the First Bid is based on that information unaltered by the Seller, options (3) and (4) in this paragraph will not apply; provided that Manheim reserves the right to employ options (1) or (2) of this paragraph if any mistake or error is deemed to have occurred in the concierge’s evaluation of the Vehicle and submission of the information about the Vehicle.  If information provided by a Manheim concierge is deleted or overridden by a Seller, Manheim reserves all rights contained in these Terms and Conditions and in this paragraph.   
          7. Adjusted First Bids. If Manheim or the Purchase Designee determines that the actual Vehicle make, model, year, condition, or other criteria of the Vehicle is inconsistent with the Vehicle make, model, year, condition, or other criteria used to generate the First Bid, then, in addition to the remedies described above in Paragraph 34(c)(i)(6), Purchase Designee may either decline to purchase the Vehicle or provide Seller with an adjusted First Bid (“Adjusted First Bid”). If the Purchase Designee presents an Adjusted First Bid, Seller may either (i) sell the Vehicle to the Purchase Designee at the price set forth in the Adjusted First Bid, or (ii) reject the Adjusted First Bid and retain the Vehicle, in which case, the Purchase Designee will not be required to purchase the Vehicle from Seller. If Seller elects to retain the Vehicle, Seller will promptly (and in any case within 3 business days) pick up the Vehicle.  Failure to pick up Vehicles on time may result in transportation charges (as set forth in Paragraph 19), storage charges (as set forth in Paragraph(s) 13(c) and/or 18(c)), and other charges as set out in these Terms and Conditions.  Seller will be responsible for all such charges in addition to any transport costs associated with the pickup and delivery of the Vehicle.
          8. Costs and Profits. Seller and Manheim will each bear all of its own costs in connection with the activities under the Terms and Conditions. Seller will be entitled to any profits and assumes the risk of any losses associated with the sale of any Vehicles. Seller will be responsible for all fees and expenses incurred in the purchase and subsequent sale of any Vehicles, which includes, without limitation, title and registration fees, taxes, financing costs, inspection and reconditioning costs, remarketing fees, transportation fees, and auction sales fees.
       2. Self-Inspections / Order Inspection. You can schedule a Vehicle inspection at your dealership premises and a condition report directly through the Manheim Express application. You understand and agree that any resulting condition report is a description of the physical condition of the Vehicle in its current state, based on a visual examination only, and is not a complete mechanical, electrical, or structural inspection, and should not be treated as such.  When you list and/or sell the Vehicle, you remain responsible for the accuracy and completeness of all disclosures, representations, and descriptions of the Vehicle.  You also agree that Manheim may conduct the inspection or use a subcontractor to do so and that you will provide appropriate access to the Vehicle as requested by the inspector. Finally, you agree that Manheim may apply its proprietary Autograde score to any condition report generated and that it does so pursuant to Paragraph 26 (Manheim’s Proprietary Rights) and these Terms and Conditions, generally. Manheim is not responsible for, and makes no representations or warranties regarding, the accuracy of any Data (as defined in Section IV, Paragraph 22, above) or any information or tools provided or utilized relating to the Data including, without limitation, any apps or software providing information relating to a Vehicle.
    4. Express Direct.
                When utilizing the Express Direct sale feature, in which a willing Buyer and willing Seller wish to transact an arms-length Vehicle sale through Manheim without competitive bidding and outside of a traditional wholesale auction market, both Buyer and Seller agree that:
       1. They are sophisticated, unrelated parties willingly entering into an arms-length sale transaction outside the auction and that they have satisfied themselves as to any disclosures, including but not limited to, odometer reading, condition of the Vehicle, availability or status of clean title, Vehicle history, recalls, et al., and that Manheim will have no involvement in, or liability with respect to, alleged failure of disclosures or misrepresentations or omissions;
       2. The Express Direct sale transaction is in compliance with any and all applicable law(s);
       3. Manheim will not release funds to the Seller until: (a) good funds from or on behalf of the Buyer have been received and cleared, and (b) title has been delivered by Seller;
       4. No right of auction arbitration will be available from or though Manheim for any reason; for the avoidance of doubt, this includes the Manheim Arbitration Policies;
       5. Manheim, in its sole and absolute discretion, reserves the right to rescind or unwind any transaction in which Manheim has reason to suspect that the transaction is collusive, not at arms-length, fraudulent, or otherwise suspicious;
       6. Manheim may, in its sole and absolute discretion, advise any floor plan lender that the transaction is a specific source sale and/or that it did not occur through competitive bidding in a traditional wholesale auction market.  Manheim makes no guarantee or representation that any floor plan lender will provide floor plan financing on a Vehicle sold via Express Direct;
       7. No other assurance products will be available to either party to a sale though Express Direct; and   
       8. Notwithstanding any other agreements or fee arrangements you may have with Manheim, any fees that may be charged for using Express Direct are as set forth in the application
34. Vehicles at Non-Manheim Locations.
    
    1. Vehicle Removal. Buyer agrees that, in the event a purchased Vehicle, which is not located on Manheim property, is not removed from its location within 10 days of the time the Vehicle is deemed eligible for release, the Vehicle may, in Manheim’s sole discretion, be transported to Buyer’s location or to the nearest Manheim location at Buyer’s expense. If such Vehicle is transported to a Manheim location, Buyer will be charged the daily storage rate for such auction until the Vehicle is picked up by Buyer.  Once such Vehicle is on Manheim property, Paragraph 19 of these Terms and Conditions will apply.
    2. Risk of Loss for Vehicles at Non-Manheim Locations. As between Seller and Buyer, responsibility for, and risk of any Loss caused to or by a vehicle located at any non-Manheim location at the time of such Loss, resides with the Seller prior to, and with the Buyer from and after, the first to occur of (i) the transportation company, arranged on behalf of or by Buyer, picks up such vehicle; (ii) the Buyer takes possession of such vehicle; or (iii) six (6) days after such vehicle is eligible for pick-up by the Buyer.