INTRODUCTION
Welcome to AuctionPoint, a web site ("Site") developed by AuctionPoint, Inc. ("AuctionPoint") for use by real estate brokers who wish to create an online auction site to sell real property on behalf of the owners of such real property (such owners shall each be referred to herein as "Seller"). AuctionPoint has created online auction development software (the "Software") to enable you to create a customized web site to sell the Seller’s real property via an online auction.
AuctionPoint is neither the seller of the Property, the broker for the seller of the Property nor an auctioneer. Rather, AuctionPoint will allow you to use the Software pursuant to the terms of this AuctionPoint Licensing Agreement ("Agreement") so that you may create a customized online website ("Auction Site") to sell the improved and unimproved real property owned by a Seller ("Property") at anytime, from anywhere, utilizing an auction-style format. Thereafter, AuctionPoint will only be hosting the Auction Site on its servers while you control the online auction of the Property and the parties who may participate in the online auction of the Property.
NATURE OF AGREEMENT
THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND AUCTIONPOINT and contains the terms and conditions for the licensing and use of the Software and accessing the Auction Site once it has been generated using the Software. It is important that, prior to utilizing this Site, you carefully read and understand all sections, including, without limitation, the warranty disclaimers, releases, limitations on liability, and dispute resolution sections contained within.
USING THIS SITE AND/OR THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR AGREEMENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO ANY TERM OR CONDITION IN THIS AGREEMENT, DO NOT CONTINUE (A) ACCESSING THIS SITE, (B) USING THIS SITE OR THE SOFTWARE, AND/OR (C) CREATING AN AUCTION SITE.
LICENSE
Subject to the terms and conditions of this Agreement, AuctionPoint grants you a limited (as provided below), non-exclusive, non-transferable worldwide license to use the Software and the Auction Site which is generated by utilizing the Software (collectively, the "License"). This License expressly excludes, without limitation, any reproduction, duplication, sale, resale or other commercial use of the Software (other than for the creation, maintenance and use of the Auction Site in accordance with this Agreement), making any derivative of the Software, the collection and use of participant e-mail addresses or other participant information, ratings or listings, or any data extraction or data mining whatsoever. AuctionPoint retains all rights (including Intellectual Property Rights (as defined below)), title and interest in the Software, the Auction Site and this Site, and all underlying technology and data. All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, "Content"), including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on this Site or the Auction Site is owned, controlled or licensed by or to AuctionPoint, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. You agree to not and will not allow others to: reverse engineer, decompile, disassemble, merge, copy, use, disclose, sell or transfer the underlying source code or structure or sequence of the Software, this Site or the Auction Site and/or delete or alter author attributes or copyright notices. You may not attempt to gain unauthorized access to any portion or feature of this Site or the Auction Site, or any other systems or networks connected to this Site or the Auction Site or to any AuctionPoint server, or to any of the services offered on or through this Site or the Auction Site, by hacking, password "mining" or any other illegitimate means. You may not probe, scan or test the vulnerability of this Site or any network connected to this Site, nor breach the security or authentication measures on this Site or any network connected to this Site. You shall use the Software, the Auction Site generated by utilizing the Software and this Site solely for you own use. The term of the License ("License Term") shall begin on the Start Date and end one month (30 days) after the earlier to occur of the: (i) day of the auction ("Auction Date"), or (ii) day the auction is canceled ("Cancel Date"), provided that with respect to potential buyers who have registered on the Auction Site, the License Term shall end six months (180 days) after the earlier to occur of the Auction Date or Cancel Date.
As used herein, "Intellectual Property Rights" means all intellectual property rights (throughout the universe, in all media, now existing or created in the future, for all versions and elements, in all languages, and for the entire duration of such rights) arising under statutory or common law, contract, or otherwise, and whether or not perfected, including without limitation: (a) all rights associated with works of authorship including without limitation copyrights, moral rights, copyright applications, copyright registrations, synchronization rights; (b) rights associated with trademarks, service marks, trade names, logos, trade dress, and the applications for registration and registrations of trademarks and service marks; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth in this definition and any and all other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues, and extensions of the foregoing (as and to the extent applicable) now existing, later filed, issued, or acquired.
LIMITATIONS AND RESTRICTION ON USE
The Software and the Auction Site generated by the Software may only be used for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Software and the Auction Site including, without limitation, those pertaining to the sale of the Property. You, those you represent, and your respective agents, partners, affiliates, subsidiaries and relatives are strictly prohibited from placing bids or causing bids to be placed on the Property for any reason including, without limitation, artificially increasing or otherwise manipulating the bidding process on the Auction Site or the bid price of the Property, or otherwise influencing user behavior on the Auction Site. Such conduct may be a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and AuctionPoint will cooperate to ensure that violators are prosecuted to the fullest extent of the law. Any acts of online fraud or suspicions thereof, should be immediately reported to AuctionPoint.
You shall not post or transmit through the Auction Site any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law, or which, without AuctionPoint’s express prior approval, contains advertising or any solicitation with respect to products or services. You shall not upload, post or otherwise make available on the Auction Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of this Site or the Auction Site, you automatically grant, or warrant that the owner of such material has expressly granted AuctionPoint the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You also permit any other user to access, view, store, or reproduce the material for that user’s personal use.
The Software and this Site contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Software and this Site are copyrighted under the United States copyright laws. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of AuctionPoint and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
As permitted by applicable law and consistent with the Privacy Policy, AuctionPoint has the right, but not the obligation, to monitor any activity and content associated with the Auction Site. AuctionPoint may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials on the Auction Site, including listings and bids. AuctionPoint retains the right to immediately halt any auction, prevent or restrict access to the Auction Site or take any other action in case of technical problems, objectionable material, inaccurate listings, auction inaccuracies, procedures or actions otherwise prohibited by the procedures and guidelines contained on the Auction Site, or for any other reason in the sole and absolute discretion of AuctionPoint. Without limiting other remedies, AuctionPoint may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your use of the Software and the Auction Site: (a) if you breach this Agreement; or (b) if AuctionPoint believes that your actions may cause legal liability for you or AuctionPoint.
Further, the granting of the License and your use of the Software and the Auction Site generated by the Software is subject to and contingent upon either AuctionPoint receiving an executed Owner's Authorization Agreement (the "Seller's Authorization") from the Seller, or electronic acceptance of the Seller's Authorization by the Seller. AuctionPoint reserves the right, in its sole and absolute discretion and without notice to you, to suspend your License and your use of the Software and the Auction Site generated by the Software until such time as AuctionPoint receives the Seller's Authorization, or until such time as the Seller electronically accepts the Seller's Authorization as required herein.
LICENSING FEE AND OTHER CHARGES
As compensation for each Property for which the Software is used (and access to this Site in connection therewith), you agree to pay AuctionPoint a licensing fee of $395 (the "Licensing Fee"). The Licensing Fee will be earned, due and payable immediately upon acceptance of this Agreement and, except as expressly set forth in this Agreement, shall be non-refundable regardless of whether you eventually hold an auction and whether or not such auction is not successful.
In addition, you acknowledge and agree that the ability to create an Auction Site using the Software, is a material factor in creating buyer interest in the Property. Therefore, during the License Term, a buyer’s premium as described on the Auction Site (the "Buyer’s Premium") will be earned by AuctionPoint once a sale contract is entered into between Seller and a buyer, regardless of whether the contract is entered into before or after the Auction Date. If such buyer is not registered on the Auction Site, the Listing Broker agrees to disclose the Buyer’s Premium requirement to the buyer and to add the Buyer’s Premium to the Purchase Price. If the Listing Broker fails to make such disclosure and add the Buyer’s Premium to the Purchase Price, Listing Broker and Seller, jointly and severally, shall be liable to AuctionPoint for payment of the Buyer’s Premium. The Buyer’s Premium will be added to the Purchase Price for the Property and paid out of sale proceeds to AuctionPoint at the close of escrow. The Buyer’s Premium will be calculated based on the winning bid amount, or the final agreed-upon price between Buyer and Seller, whichever is higher.
In connection with your use of the Software and the development of the Auction Site, you will have the option to collect a deposit (the "Winner's Deposit") from each Bidder registering on the Auction Site to bid on the Property. In connection with such collection, each Bidder will either send a check in the amount of the Winner's Deposit to you (payable to the escrow company of your choosing) or will provide AuctionPoint with a credit card authorization in the amount of the Winner's Deposit (the "Authorization"). Such Winner's Deposit is intended to act as such Bidder’s good faith deposit which shall immediately become non-refundable (but applicable to the Purchase Price) and payable to Seller if such Bidder is the successful bidder at the online auction you hold through the Auction Site ("Winning Bidder"). If such Winner's Deposit is in the form of a credit card authorization for the amount of the Winner's Deposit, then the Winning Bidder's credit card will not be charged unless the Winning Bidder fails to execute the Purchase Agreement (as defined below) within three (3) business days after the auction end date. In such event, you will be responsible for contacting Auction Point to request that the Winning Bidder's credit card be charged, and a processing fee equal to five percent (5%) of the Winner's Deposit will be deducted by AuctionPoint from the Winner's Deposit prior to the Winner's Deposit being sent to the Seller. The Winner's Deposit will be refundable to all Bidders that are not the Winning Bidder (or, in the case of a credit card authorization, such authorization will be destroyed by AuctionPoint). You agree that AuctionPoint is facilitating the Authorization as an accommodation to you and Seller and that the terms below with respect to Disclaimer, No Warranty and Limitation of Liability expressly apply to the acts or omissions of AuctionPoint in obtaining and maintaining the Authorization. Further, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD AUCTIONPOINT AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, ATTORNEYS AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES) ARISING FROM OR IN CONNECTION WITH THE AUTHORIZATION.
As noted above, should the Winning Bidder fail to execute the Purchase Agreement within three (3) business days after the auction end date, the Winner’s Deposit shall be liquidated damages payable to Seller. Therefore, IN THE EVENT THE Winning Bidder fails to execute the Purchase Agreement within three (3) business days after the auction end date, you acknowledge and agree THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. AS SUCH, YOU ACKNOWLEDGE AND AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT THE Winning Bidder failS to TIMELY EXECUTE the Purchase Agreement IS AND SHALL BE, AS SELLER’S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), THE RIGHT TO RETAIN THE WINNER’S DEPOSIT. THEREFORE, IN THE EVENT THE Winning Bidder failS to TIMELY EXECUTE the Purchase Agreement, (1) SELLER MAY RETAIN THE WINNER’S DEPOSIT, (2) SELLER SHALL BE RELIEVED FROM ALL OBLIGATIONS AND LIABILITIES TO SELL THE PROPERTY TO THE WINNING BIDDER, AND (3) SELLER SHALL BE PERMITTED TO RE-OFFER THE PROPERTY FOR SALE AND/OR ACCEPT THE BID OF THE NEXT CLOSEST BIDDER. THE PAYMENT AND PERFORMANCE OF THE ABOVE AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAW.
USE OF SOFTWARE/AUCTION PROCESS
AuctionPoint has no interest in the Property which you will be offering for sale and you will have absolute control over the terms and conditions applicable to the sale of the Property. By using the Software, you will offer the Property for sale pursuant to an auction directly on the Auction Site and, by doing so, will assume responsibility for all aspects of marketing, auctioning and selling the Property including descriptions, due diligence materials, establishment of starting bid prices and the sale terms. In addition, you (and not AuctionPoint) will control all information and due diligence items for the Property listed on the Auction Site, as well as any opinions, advice, statements, services, offers, or other information or content expressed or made available by you. Included with this information will be whether a reserve price for the Property has been established. AuctionPoint will not be responsible for (nor guaranty) the accuracy, completeness, or usefulness of any content listed on the Auction Site, nor its merchantability or fitness for any particular purpose. AuctionPoint will neither endorse nor be responsible for the accuracy or reliability of any opinion, advice or statement made on the Auction Site by anyone. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Auction Site. We recommend that you seek the advice of professionals, as appropriate, regarding the listing of any specific information, opinion, advice or other content on the Auction Site.
Further, you alone will determine the qualifications of all bidders permitted to access the Auction Site (each, a "Bidder") and you shall have the right, in your sole and absolute discretion, to disqualify and prohibit any Bidder from using the Auction Site; provided, however, any Bidder that wishes to access the Auction Site to bid on and buy the Property will be required to accept the Bidder's Terms and Conditions of Use in the form set forth on this Site (the "Bidder's Terms and Conditions") and any Bidder who is bidding on behalf of another party will also be required to have such other party accept the Buyer’s Acknowledgment in the form set forth on this Site (the "Acknowledgment"). Under no circumstances will AuctionPoint be liable for any loss or damage caused by a Bidder's reliance on information obtained through the Auction Site.
Once the Auction Site has been created using the Software, you will be responsible for maintaining all the information thereon and, when the designated time for the auction occurs, monitoring the auction. Notwithstanding this, you agree to abide by the following minimum standards of conduct in connection with the auction: (a) you and Seller will accept the highest bid made by a qualified Bidder during the auction period, which bid meets any applicable minimum bid or reserve requirements established by you; (b) the bid received will be a legal offer to buy the Property and, once the auction is completed, you and Seller will be obligated to complete the sales transaction with the Bidder making the highest bid that meets your auction criteria; (c) following an auction, the Winning Bidder and Seller will handle the closing of the transaction offline initially through the execution of the purchase and sale agreement for the Property that you will provide on the Auction Site ("Purchase Agreement") and, thereafter, the use of a traditional escrow company designated by you; and (d) by holding the online auction through the Auction Site, you and Seller agree to complete the transaction as described on the Auction Site and the terms of the Purchase Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable; provided, however, you agree that AuctionPoint does not have the duty to resolve any disputes between participants related to or arising out of any such transaction.
You hereby covenant by and for yourself, your heirs, executors, administrators and assigns, and all persons claiming under or through you, and this Agreement is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons on account of sex, race, color, creed, national original or ancestry, in the use or enjoyment of the Auction Site nor shall you, or any person claiming under or through you, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number or use of Bidders in or through the Auction Site.
PRIVACY POLICY
This Agreement includes and hereby incorporates into its terms the AuctionPoint Privacy Policy located on this Site ("Privacy Policy") and any supplemental terms to which you agree from time to time. AuctionPoint has established the Privacy Policy to explain to you and other users of this Site how their information is collected and used. Your use of this Site signifies acknowledgement of and agreement to our Privacy Policy. You should check the Privacy Policy frequently for changes. Except as authorized herein and unless otherwise authorized or consented, you agree not to use any information regarding other participants which is accessible from this Site or disclosed to you by AuctionPoint except to enter into and complete transactions. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, otherwise objectionable conduct or otherwise inconsistent with our Privacy Policy. The terms of this Agreement and the Privacy Policy do not address and/or control the confidentiality of any materials, information, opinions and representations made by either you or any Bidder to each other; you are encouraged to enter into a non-disclosure agreement with each Bidder for this purpose.
You further acknowledge and agree that AuctionPoint may, in its sole discretion, preserve or disclose your content, as well as your information, such as email addresses, IP addresses, timestamps, and other user information, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third-parties; (d) respond to claims that contact information (e.g. phone number, street address) of a third-party has been posted or transmitted without their consent or as a form of harassment; and (e) protect the rights, property, or personal safety of AuctionPoint, its users or the general public. If the provisions of this Agreement conflict with those in the Privacy Policy, the terms of this Agreement will control. Please read this Agreement and the Privacy Policy carefully - if you do not agree to any of the terms, you may not use this Site.
As permitted by applicable law, AuctionPoint also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with information requests, to protect AuctionPoint’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of AuctionPoint’s business and systems or other purposes deemed reasonable by AuctionPoint, AuctionPoint may access and disclose any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
DISCLAIMER
YOU EXPRESSLY AGREE THAT USE OF THIS SITE, THE SOFTWARE AND THE AUCTION SITE GENERATED THEREFROM IS AT YOUR SOLE RISK. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU ALSO AGREE THAT AUCTIONPOINT HAS MADE NO WARRANTY THAT THIS SITE, THE SOFTWARE OR AUCTION SITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE AUCTION SITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE THAT AUCTIONPOINT IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
YOU ACKNOWLEDGE THAT AUCTIONPOINT HAS NO RESPONSIBILITY FOR ANY AUCTION INCLUDING, WITHOUT LIMITATION, when a technical glitch prevents OR IMPACTS THE RESULTS OF AN AUCTION. YOU SHALL HAVE THE RIGHT, IN YOUR SOLE AND ABSOLUTE DISCRETION to stop, RESCHEDULE, restart, or cancel any auction at any time.
NO WARRANTY
THIS SITE IS PROVIDED ON AN "AS IS" BASIS. YOUR USE OF THIS SITE, THE SOFTWARE AND THE AUCTION SITE GENERATED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN AND SOLE RISK. AUCTIONPOINT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (B) THAT THIS SITE, THE SOFTWARE AND THE AUCTION SITE GENERATED THROUGH THE USE OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND SECURE OR OPERATE WITHOUT ERROR; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF AUCTIONPOINT. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AUCTIONPOINT DISCLAIMS ANY AND ALL SUCH WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU OBTAIN FROM AUCTIONPOINT OR THROUGH THE USE OF THIS SITE OR THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
IN NO EVENT WILL AUCTIONPOINT BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THIS SITE, THE SOFTWARE, THE AUCTION SITE GENERATED THROUGH THE USE OF THE SOFTWARE AND/OR THE PROPERTY, WHETHER SUCH DAMAGES ARISE UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN ADDITION TO THE TERMS SET FORTH ABOVE, NEITHER AUCTIONPOINT, NOR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED ON THIS SITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THERE FROM OR OCCASIONED THEREBY.
INDEMNITY
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD AUCTIONPOINT AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, ATTORNEYS AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES) ARISING FROM OR IN CONNECTION WITH: (A) YOUR BREACH OF THIS AGEEMENT, INCLUDING THE DOCUMENTS INCORPORATED BY REFERENCE; (B) YOUR VIOLATION OF ANY STATE, FEDERAL FOREIGN OR INTERNATIONAL LAWS, CODES OR REGULATIONS; (C) YOUR VIOLATION OF ANY THIRD PARTY'S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS; AND/OR (D) THE AUCTION SITE, THE PROPERTY, AND/OR THE TRANSACTION CONTEMPLATED BY THE AUCTION SITE. THIS OBLIGATION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
RELEASE
BECAUSE AUCTIONPOINT IS NOT INVOLVED IN ANY TRANSACTIONS BETWEEN YOU AND BIDDER, IF A DISPUTE ARISES BETWEEN (A) YOU AND A BIDDER (AND/OR THE ACTUAL BUYER), (B) YOU AND SELLER, AND/OR (C) A BIDDER (AND/OR THE ACTUAL BUYER) AND SELLER, YOU RELEASE AUCTIONPOINT (AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, ATTORNEYS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY AUCTIONPOINT.
REPRESENTATIONS
Your rights to the License set forth in this Agreement are subject to your providing your real name, address, phone number and e-mail address, along with other information that may be required from time to time. You represent that the information provided to AuctionPoint during your use of this Site and the licensing of the Software is true and correct.
If you are going to be selling the Property on behalf of another party, you represent and warrant that: (i) you have verified that the Property exists and confirmed its physical location; (ii) you have confirmed that the Seller is the legal owner of the Property; (iii) you have the required legal authorization to sell the Property on behalf of the Seller; (iv) the Seller has authorized you to sell the Property utilizing the Software and this Site; (v) the Seller has the full power necessary to execute and deliver the Purchase Agreement and to consummate the transactions contemplated thereby; (vi) no further action is necessary to authorize the execution and delivery of the Purchase Agreement by the Seller; (vii) you are a real estate broker licensed in the State where the Property is located; (viii) the execution, delivery and performance of this Agreement by you will not violate any provision of any agreement, indenture, instrument, lease, contract or other undertaking to which you or the Seller is a party or by which you or the Seller is bound; (ix) no consents of any third party are required for you to enter into this Agreement or for the Seller to enter into the Purchase Agreement; (x) you have not relied upon any representations and warranties of AuctionPoint on this Site or with respect to the Software in entering into this Agreement (all of which are expressly disclaimed by AuctionPoint); and (xi) if you are not an individual, but a legal entity such as a corporation, partnership or limited liability company, (i) all references herein to "you" shall mean such entity, (ii) the entity is duly organized and in good standing in the state in which the it was organized, and (iii) the individual executing this Agreement is duly authorized to execute this Agreement and their signature hereon shall bind such entity.
If you own the Property, you represent and warrant that: (i) the Property exists and the description provided for its physical location is correct; (ii) you are the legal owner of the Property; (iii) you have the required legal authority to sell the Property; (iv) you have the full power necessary to execute and deliver the Purchase Agreement and to consummate the transactions contemplated thereby; (v) no further action is necessary to authorize the execution and delivery of the Purchase Agreement by you; (vi) you do not have a real estate broker representing you in connection with the sale of the Property; (vii) the execution, delivery and performance of this Agreement by you will not violate any provision of any agreement, indenture, instrument, lease, contract or other undertaking to which you are bound; (viii) no consents of any third party are required for you to enter into this Agreement and the Purchase Agreement; and (ix) you have not relied upon any representations and warranties of AuctionPoint on this Site or with respect to the Software in entering into this Agreement (all of which are expressly disclaimed by AuctionPoint); and (x) if you are not an individual, but a legal entity such as a corporation, partnership or limited liability company, (i) all references herein to “you” shall mean such entity, (ii) the entity is duly organized and in good standing in the state in which the it was organized, and (iii) the individual executing this Agreement is duly authorized to execute this Agreement and their signature hereon shall bind such entity.
Use of this Site is limited to parties that can lawfully enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not use this Site. Every person who uses this Site hereby represents to AuctionPoint that he or she is not a minor, is at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law.
EQUIPMENT
You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Software, this Site and the Auction Site and all charges related thereto.
AGENCY
AuctionPoint is not your agent, fiduciary, trustee or other representative. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of AuctionPoint and you.
Links to Third Party Sites
To the extent that there are hyperlinks on this Site to other web sites operated by parties other than AuctionPoint and its affiliates, you acknowledge that such other web sites are beyond AuctionPoint's control. Parties other than AuctionPoint may provide services or sell product lines on this Site that take you outside of our service. This includes links from advertisers, sponsors, and content partners that may use AuctionPoint’s logo(s) as part of a co-branding relationship. When you leave this Site, please note that different terms of use and privacy statements will apply. In connection therewith, you agree that: (a) AuctionPoint does not control, is not responsible for examining or evaluating and does not warrant the offerings of any of these businesses or individuals or the content of their web sites; (b) AuctionPoint does not assume any liability for the actions, product, and content of all of these and any other third parties; (c) AuctionPoint makes no representations and cannot be held responsible for the accuracy, relevancy, copyright compliance, legality, or decency of material on such third party web sites; and (d) AuctionPoint also does not assume, and expressly disclaims, all liability for any viruses, worms, Trojan horses, defects, or other malfunctions caused by, resulting from, existing within, or in connection with such third party sites and any links thereto.
You may choose to have hyperlinks on the Auction Site to other web sites operated by parties other than AuctionPoint and its affiliates which are beyond AuctionPoint's control. In connection therewith, you agree that: (a) AuctionPoint does not control, is not responsible for examining or evaluating and does not warrant the offerings of any of these businesses or individuals or the content of their web sites; (b) AuctionPoint does not assume any liability for the actions, product, and content of all of these and any other third parties; (c) AuctionPoint makes no representations and cannot be held responsible for the accuracy, relevancy, copyright compliance, legality, or decency of material on such third party web sites; and (d) AuctionPoint also does not assume, and expressly disclaims, all liability for any viruses, worms, Trojan horses, defects, or other malfunctions caused by, resulting from, existing within, or in connection with such third party sites and any links thereto.
NOTICES
Except as explicitly stated otherwise, legal notices shall be served on AuctionPoint’s registered agent (in the case of AuctionPoint) or to the e-mail address you provide to AuctionPoint during the licensing process (in your case). Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the email address is invalid. Alternatively, AuctionPoint may give you legal notice by mail to the address provided during the licensing process. In such case, notice shall be deemed given three (3) days after the date of mailing.
APPLICABLE LAW; DISPUTE RESOLUTION
The terms of this Agreement, and any actions arising out of, or in any manner affecting the interpretation of, this Agreement, the licensing and use of the Software, the use of this Site and the use of the Auction Site, whether under this Agreement or otherwise, shall be governed solely by, and construed solely in accordance with, the laws of the State of California without regard to choice of law principles. If you or AuctionPoint shall bring an action or be involved in a proceeding (such as arbitration) against the other party, the prevailing party in said action or proceeding shall be entitled to reasonable attorneys’ fees, in addition to any other judgment of the court or arbitrator.
YOU AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE LICENSE OR USE OF THE SOFTWARE AND THE AUCTION SITE AND THE USE OF THIS SITE SHALL BE SETTLED BY BINDING ARBITRATION THROUGH JAMS (OR TO THE EXTENT JAMS REFUSES SUCH CASE AND/OR NO LONGER EXISTS, THROUGH THE AMERICAN ARBITRATION ASSOCIATION) IN ACCORDANCE WITH ITS Comprehensive Arbitration Rules and Procedures. Such arbitration shall be initiated by YOU OR AUCTIONPOINT within fifteen (15) days after either party sends written notice (the “Arbitration Notice”) to the other party and to JAMS, which written notice shall set forth (A) the claim under dispute in reasonable detail, (B) a demand to arbitrate, (C) the amount involved, if any, and (D) the remedy or determination sought, and SHALL BE SENT by registered or certified mail OR BY REPUTABLE OVERNIGHT COURIER SERVICE. IF YOU AND AUTIONPOINT ARE UNABLE TO AGREE UPON AN ARBITRATOR WITHIN TEN (10) DAYS OF A WRITTEN REQUEST TO DO SO BY EITHER PARTY, JAMS (OR THE AMERICAN ARBITRATION ASSOCIATION) SHALL PROVIDE A LIST OF THREE AVAILABLE RETIRED JUDGES AND EACH PARTY MAY STRIKE ONE. THE REMAINING JUDGE WILL SERVE AS ARBITRATOR. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION SHALL BE CONDUCTED IN LOS ANGELES OR SANTA MONICA, CALIFORNIA, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF. The arbitrator may, in its award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING ON THE PARTIES. EITHER YOU OR AUCTIONPOINT MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN LOS ANGELES OR SANTA MONICA, CALIFORNIA, IF NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF YOU OR AUCTIONPOINT PENDING THE COMPLETION OF ARBITRATION AND YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to THIS AGREEMENT, THE LICENSE OR USE OF THE SOFTWARE AND THE AUCTION SITE AND THE USE OF THIS SITE must be RAISED AND NOTICED FOR ARBITRATION within one (1) year after such claim or cause of action arose or be forever barred.
MISCELLANEOUS
This Agreement and any web pages or other writings incorporated herein by reference constitute the entire agreement between you and AuctionPoint and govern your (a) licensing and use of the Software, and (b) use of this Site and the Auction Site, superseding and cancelling any prior and contemporaneous agreements, claims, representations and understandings between you and AuctionPoint. You hereby agree to execute such further documents or instruments as may be necessary or appropriate to carry out the intention of this Agreement.
The failure of AuctionPoint to exercise or strictly enforce any right or provision of this Agreement upon a breach by you or others will not constitute a waiver of AuctionPoint’s right to exercise or strictly enforce any right or provision in the future with respect to such breach, similar or subsequent breaches and otherwise.
If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. Further, if any provision of this Agreement is found by an arbitrator or judge to be invalid, the parties nevertheless agree that such arbitrator or judge should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect.
The headings in this Agreement are used solely for the reference purposes and have no legal or contractual significance.
This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, you shall not have the right to assign, directly or indirectly, the License and all or part of your rights or obligations under this Agreement without the prior written consent of AuctionPoint, which consent may be withheld in AuctionPoint’s sole and absolute discretion