AssetNation, Inc. and its affiliated companies (collectively, the "Company" or "we") operates this website and operates or hosts other auction websites accessible through its central website, www.assetnation.com (individually, an "AssetNation Website" and collectively, "AssetNation Websites"). Each AssetNation Website is listed in the Affiliated Websites section at the bottom of this website and of every other AssetNation Website.
Each AssetNation Website has specific Website Rules (accessible from the footer of each website) that apply to that specific AssetNation Website, and are incorporated herein by reference. By agreeing to this Agreement, and then subsequently using an AssetNation Website, you are agreeing to comply with the specific Website Rules for such AssetNation Website.
We may amend this Agreement at any time by posting the amended Agreement on our AssetNation Websites. An amended Agreement shall automatically be effective 15 days after it is initially posted on our AssetNation Websites. Your continued use of any AssetNation Website after our posting of any changes will constitute your acceptance of such changes. This Agreement may not be otherwise amended except in a writing hand signed by you and the Company. Notwithstanding any other provision of this Agreement, for purposes of this provision, a "writing" does not include an e-mail message and a signature does not include an electronic signature.
1. EACH ASSETNATION WEBSITE IS ONLY A VENUE OR MARKETPLACE
Each AssetNation website is only a venue or marketplace for our users to offer, sell and buy many different items. Our role is only to provide a venue for listings, bids and acceptances, and facilitate the exchange of information between buyers and sellers. We are not involved in forming the actual transaction between buyers and sellers, we are not an agent of buyer or seller, and we do not take title to the items at any point in the sales process. Any agreement reached by a buyer and seller with respect to the terms of sale for an item is solely between such buyer and seller. As a result, we have no control over and do not guarantee the quality, safety, or legality of items listed for sale, the truth or accuracy of seller's listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.
2. DISPUTES BETWEEN USERS; RELEASE OF THE COMPANY
You will not hold the Company responsible for any user's actions or inactions relating to the purchase and sale of items listed on any of the AssetNation Websites. If you have a dispute with one or more users, you release the Company, its subsidiaries and affiliates, and their respective officers, directors, agents, employees and third party suppliers, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, including without limitation those claims, demands and damages based in whole or in part upon the Company's negligence, gross negligence, statutory liability or strict liability, arising out of or in any way connected with such dispute. 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
3. LIMITATION OF LIABILITY BETWEEN BUYER AND SELLER
FOR ANY TRANSACTION BETWEEN BUYER AND SELLER ON ANY ASSETNATION WEBSITE, BUYER AND SELLER AGREE AS FOLLOWS:
(a) ALL ITEMS LISTED ON THE ASSETNATION WEBSITES ARE SOLD "AS IS, WHERE IS" WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SALE FOR SUCH ITEM AND LABELED AS A "WARRANTY".
(b) IN NO EVENT SHALL BUYER OR SELLER BE LIABLE TO EACH OTHER FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY LOST REVENUE OR ANTICIPATED PROFITS, ARISING OUT OF OR IN CONNECTION WITH SUCH TRANSACTION.
(c) IN NO EVENT SHALL THE LIABILITY OF SELLER TO BUYER, OR BUYER TO SELLER, FOR ANY SUCH TRANSACTION EXCEED THE PURCHASE PRICE OF THE PURCHASED ITEMS AND, IF THE PURCHASED ITEMS HAVE ALREADY BEEN RELEASED TO BUYER, THE REASONABLE LOGISTICS COSTS INCURRED BY BUYER FOR THE TRANSPORTATION AND STORAGE OF THE PURCHASED ITEMS.
A PARTY TO A TRANSACTION THROUGH ANY OF THE ASSETNATION WEBSITES MAY ENFORCE THIS SECTION 3 AGAINST THE OTHER PARTY AS IF IT HAD BEEN AGREED DIRECTLY BETWEEN THE PARTIES THEMSELVES.
4. ESCROW AGENT
After selection of the winning bid on certain AssetNation Websites, the winning bidder is required to pay the agreed purchase price and other fees to the Company. In this case, the Company will act as Escrow Agent to hold such funds in escrow (the "Escrow Funds") in a separate and segregated bank account used for the Escrow Funds.
With respect to the Escrow Funds and the Company's duties as Escrow Agent to buyer and seller, you agree as follows:
(a) The Company is not a principal or participant of the underlying transaction between buyer and seller. The Company may rely on any written instrument or e-mail reasonably believed by it to be genuine and to have been signed or sent by the proper party or parties, their officers, representatives or agents.
(b) Should any dispute arise between the buyer and seller with respect to the Escrow Funds, the Company shall have the right to (i) refrain from taking any action other than to retain custody of the Escrow Funds until it shall have received joint written instructions signed by each of buyer and seller, or a final order, judgment or decree from a court of competent jurisdiction, or (ii) institute a bill of interpleader in any court of competent jurisdiction to determine the rights of the parties. If buyer and seller agree to resolve their dispute over the Escrow Funds through binding arbitration, the Company shall have the additional right to act on the instructions of the appointed arbitrator(s). Should such actions be necessary, or should the Company become involved in litigation or other proceedings of any nature on account of the Escrow Funds solely because it holds the Escrow Funds as Escrow Agent, you agree to pay the Company, in addition to any commissions hereunder, the reasonable attorney's fees incurred by the Company and any other costs and expenses resulting from such actions, all of which may be deducted from the Escrow Funds prior to their disbursement by the Company.
5. LISTING REQUIREMENTS; LICENSE; EXCLUSIVITY
When you list goods for sale on an AssetNation Website, you represent and warrant that you have the authority to sell such goods, free and clear of any liens, claims or other encumbrances. You further agree to use commercially reasonable efforts to supply accurate information for each listing, and will be solely responsible for the listing information you provide. When you give us content for a listing of goods, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
When you list an item for sale on any AssetNation Website, you agree that during the period in which the item is posted in an online auction on the AssetNation Website (the "Exclusivity Period"), the Company shall have the exclusive right to sell such item. You further agree that during the Exclusivity Period you will solicit and accept offers on the item only through the AssetNation Website on which the item was posted for sale. If you solicit or accept, through any means other than the AssetNation Website on which the item was posted for sale, any offer on any such item during the Exclusivity Period you agree to pay the Company the Seller Commission Fee set forth in the applicable AssetNation Website’s Website Rules, as if such item had been sold through a completed online auction.
6. ELIGIBILITY AND REGISTRATION
The AssetNation Websites are available only to individuals and entities that can form legally binding contracts under applicable law, and are not available to minors. You represent and warrant that (i) all user information provided during registration is accurate and complete, and (ii) you will update such user information from time to time so that it is kept current, accurate and complete at all times. If you are registering with the Company as a business entity, you represent that you have the authority to legally bind that entity. You are solely responsible for all conduct and transmissions that take place under your user name and password. The Company may ask for additional information at any time to verify your registration information. The Company may, in its sole and absolute discretion, refuse to accept a party's registration.
7. USER RESPONSIBILITIES
When using any of the AssetNation Websites, you agree that you will not do any of the following:
- Violate any laws or the specific Rules or Policies for any AssetNation Website
- Violate or infringe, or cause the Company to violate or infringe, the intellectual property or other rights of any third party, including copyright, trademark, trade secret, privacy or other proprietary rights
- Fail to deliver payment for items purchased by you
- Fail to deliver goods purchased from you
- Manipulate the price of any posted item, whether by bidding through a secondary account or other party, by communicating with other buyers, by shill bidding or by any other means
- Copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from any AssetNation Website without the prior express written permission of the Company
Without limiting other remedies, we may limit, suspend or terminate a user's registration and access to the AssetNation Websites at any time if we believe, in our sole discretion, that you have breached this User Agreement or otherwise engaged in any inappropriate behavior on any of the AssetNation Websites.
THE ASSETNATION WEBSITES ARE PROVIDED BY THE COMPANY ON AN "AS IS", "AS AVAILABLE" BASIS.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION, ACCESSIBILITY OR SECURITY OF THE ASSETNATION WEBSITES, AND THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY OF THE CONTENT OR DATA FOUND ON THE ASSETNATION WEBSITES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
THE COMPANY DOES NOT WARRANT THAT THE ASSETNATION WEBSITES OR THE FUNCTIONS, FEATURES OR CONTENT ON THE ASSETNATION WEBSITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, AND SECURE OR OPERATE WITHOUT ERROR.
THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY BUYER OR SELLER.
9. LIMITATION OF LIABILITY OF COMPANY
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY LOSS, CLAIM, DAMAGE OR EXPENSE, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS, DIRECTLY OR INDIRECTLY ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY OF THE ASSETNATION WEBSITES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
IF, NOTWITHSTANDING THE FOREGOING, THE COMPANY SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE (WHETHER IN CONTRACT OR TORT) WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE USE OF ANY OF THE ASSETNATION WEBSITES, THE LIABILITY OF THE COMPANY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE FEES PAID TO THE COMPANY WITH RESPECT TO THE PARTICULAR TRANSACTION GIVING RISE TO SUCH LIABILITY, OR (B) US$1,000.
You shall indemnify, defend and hold harmless the Company, its subsidiaries and affiliates, and their respective officers, directors, employees, agents and third party suppliers (collectively, the "Company Group"), from and against any and all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, reasonable attorneys' fees), brought by or on behalf of any third party against any of the Company Group that arises out of:
(i) Any breach or violation by you of this Agreement, including, without limitation, any breach of your representations, warranties or covenants contained herein,
(ii) Any dispute with another user relating to your purchase or sale of items on an AssetNation Website, or
(iii) Any personal injury, death or property damage caused by or arising out of the subsequent use of the goods sold or purchased by you on any AssetNation Website.
11. TERMINATION OF USAGE
This Agreement is in force until terminated by either you or Company. If you disagree with this Agreement, your sole remedy is to terminate your use of the AssetNation Websites. Upon any termination of this Agreement, all obligations of either party set forth herein which relate to transactions by such party prior to such termination shall survive such termination and continue in effect, including, without limitation, the provisions of Sections 2, 3, 4, 8, 9 and 10.
13. APPLICABLE LAW AND VENUE; WAIVER OF JURY TRIAL
This Site is controlled by the Company from its offices within the State of Texas, United States of America. The laws applicable to the interpretation of this Agreement shall be the laws of the State of Texas, without regard to any conflict of law provisions.
You agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state or federal courts of Harris County, Texas, U.S.A., and that you hereby consent and submit to the exclusive jurisdiction and venue of such courts. No action arising under or relating to this Agreement may be brought by either party more than two years after the cause of action has occurred.
YOU KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF ANY ASSETNATION WEBSITE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON. THIS PARAGRAPH IS A MATERIAL INDUCEMENT FOR YOU AND THE COMPANY TO ENTER INTO THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement, including without limitation, contract claims, tort claims (including fraud in the inducement), breach of duty claims and all other common law and statutory claims. THIS WAIVER OF JURY TRIAL IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT. In the event of litigation, this provision may be filed as a written consent to a trial by the court.
14. COMPANY COPYRIGHT AND TRADEMARKS
The trademarks, tradenames and all other material contained on the AssetNation Websites, including all portions of the websites, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of the Company or its licensors. Except as expressly permitted hereby, the use of any such intellectual property for any other purpose, or the modification, distribution or republication of such material without the prior written permission from the Company, is strictly prohibited.
Copyright 2000-2011, AssetNation, Inc. Any rights not expressly granted herein are reserved.
15. ELECTRONIC COMMUNICATIONS AND AGREEMENTS
You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the AssetNation Websites. You also consent to the electronic formation of contracts and agreements between you and us and between you and any seller. You agree that all contracts, agreements, notices, disclosures and other communications that we or any seller provides to or forms with you electronically satisfy any legal requirement that such contracts, agreements, notices, disclosures, and communications be in writing, or that any signature to any contract or agreement be in writing. IF AT ANY TIME YOU NOTIFY US THAT YOU REVOKE THE CONSENTS CONTAINED IN THIS PARAGRAPH, YOUR REGISTRATION ON AND ACCESS TO THE ASSETNATION WEBSITES WILL BE IMMEDIATELY TERMINATED.
Notices shall be given to the Company by e-mail to firstname.lastname@example.org and by certified mail, return receipt requested, to AssetNation, Inc., Attention: President, 1001 McKinney, Suite 1700, Houston, Texas 77002, or to such other address as may be designated from time to time. Notices to the Company shall be deemed to have been given five days after the date of mailing by certified mail, return receipt requested.
Notices to you will be sent by e-mail to the e-mail address given to the Company when you registered with the Company, or such other e-mail address as you may provide by e-mail to the Company from time to time. Notices to you shall be deemed to have been received 24 hours after the e-mail is sent.
(a) Entire Agreement. This Agreement (including any specific AssetNation Website Rules that apply to a specific AssetNation Website) constitutes the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby; provided, however, that if a user has a pre-existing written contract with the Company that may not be amended without the written consent of both parties, then such pre-existing contract shall remain in effect and, to the extent of any conflict with this Agreement, the terms of the pre-existing contract shall control.
(b) No Agency or Other Relationship This Agreement does not create, and shall not be construed by the parties or any third person as creating, any agency, partnership, joint venture, or employment relationship between you and the Company. Instead, the relationship of the parties under this Agreement shall be solely that of independent contractors.
(c) Force Majeure Neither party hereto shall be liable to the other for any delay in or failure to perform any of its obligations hereunder to the extent performance is prevented or delayed due to causes beyond its control, including, but not limited to, failures of electronic or mechanical equipment or of the Internet or other telecommunications, computer viruses, unauthorized access, acts of God, war, terrorism, fire, severe weather or other natural disasters, or interference or hindrance by any governmental authority.
(d) Waiver Our failure to exercise or enforce any right or provision of this Agreement, or any delay on our part in doing so, will not constitute our waiver of such right or provision.
(e) Assignment This Agreement may not be assigned by you without the prior written consent of Company.
(f) Successors All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and permitted assigns.
(g) Severability If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforceable.
(h) Headings Headings are for reference purposes only and do not limit the scope or extent of such section.
(i) Attorney's Fees. In the event that the Company has to file suit against you or otherwise participate in any judicial or other legal proceeding to enforce its rights and your obligations under this Agreement, the Company shall be entitled to recover, and you shall be obligated to pay, in addition to all damages and other forms of relief or recovery awarded to the Company, the Company's reasonable attorney's fee, expenses (including without limitation the expense associated with retaining and employing expert witnesses) and all costs of court.