CWS MARKETING
GROUP, INC.
TERMS OF SERVICE
I. BASIC
REGISTRATION AND SERVICE INFORMATION
1.1 ACKNOWLEDGMENT
AND ACCEPTANCE OF TERMS OF SERVICE
By clicking on "I agree" below, and by completing the registration
process to become a member ("Member") of the CWS Marketing Group,
Inc. ("CWS") web site (the "Site"), you accept and agree to be
bound by the terms of service, operating rules and/or policies
of CWS, published by CWS as described below (all such Terms of
Service, operating rules and/or policies as they may be amended
from time to time shall hereinafter be referred to as these "Terms
of Service"). Members may be referred to as "Member," "User,"
"Buyer" when a Member is being described as acting as a buyer
in a CWS transaction, "Bidder" when a Member is being described
as bidding on an asset in order to act as a potential buyer in
a CWS transaction, and "Seller" when a Member is acting as a seller
in a CWS transaction. These Terms of Service comprise the entire
agreement between Member and CWS and supersede all prior agreements
between the parties, regarding the subject matter contained herein.
1.2 DESCRIPTION
OF CWS MARKETING SERVICE
CWS provides an online venue for Sellers to list assets for sale
and for Buyers to locate assets for sale in order to facilitate
the transfer of ownership of assets, including but not limited
to real and personal property, and goods ("Assets"). The Assets
available through the Site are offered by Sellers and not by CWS.
CWS is not a party to the offer or sale of these Assets and does
not own the Assets listed on the Site, and only provides the technical
means for the offer and sale of the Assets. CWS does not ensure
that a Seller and Buyer will complete a transaction. Unless otherwise
indicated/engaged, CWS is not responsible for the completion of
any Asset sale or for facilitating the delivery of said Asset(s).
Although CWS may supervise the content of information of the Site
(see "Supervision of Content" below), CWS does not assume responsibility
for verifying the material, content and information on its Site
and is not responsible for any damages, losses, expenses or other
injuries incurred by any Member as a result of relying on any
material, content and information posted on the Site.
1.3 MEMBER
REGISTRATION AND INFORMATION
(a) Registration
Data. Each Member expressly agrees to: (1) provide certain
current, complete, and accurate information about Member as prompted
to do so on the Site and (2) maintain and update this information
as required to keep it current, complete and accurate. All information
requested on original registration shall be referred to as "Registration
Data." Furthermore, Member grants CWS the right to use Member-related
data for purposes described in the CWS Privacy Policy. Member
is further directed to review the CWS Privacy Policy for further
information concerning the collection and usage of Member information.
CWS membership is non-transferable. If any information provided
by Member is incomplete or inaccurate, CWS retains the right to
terminate Member's rights to use the Site. Member has the right
to seek cure within five (5) business days of notification. A
Member agrees not to use a false or misleading name or a name
that the Member is not authorized to use in registration or use
of the Site. Providing fraudulent Member information could subject
a Member to criminal or civil liability as well as being a violation
of these Terms of Service. Member may change personal information
on its existing membership account only to update the Member account.
(b) User
Name and Password. Once a party becomes a Member of the Site,
the Member will select a user name and a password. Members are
entirely responsible for maintaining the confidentiality of their
user names and passwords. Furthermore, Members are entirely responsible
for any and all activities that occur under a Member's Member
ID and password. Member agrees to immediately notify CWS of any
unauthorized use of Member's Member ID or any other breach of
security known to Member.
II. CONDUCT
OF AUCTIONS ON THE SITE
2.1 PROCEDURE
FOR CONDUCTING AUCTIONS
Assets are listed for the specified bidding periods (the "bidding")
shown on the Site and are deemed "sold" at the close of bidding
which will be set at a time pre-determined by the Seller, except
that CWS will not close bidding until an entire overtime period
has passed without any bidding activity. Each Asset (including
an Asset sold in a Simulcast Auction) will have a description
and disclosure information on the Site, as well as any additional
conditions of sale provided by the Seller. Once bidding commences,
Bidders may make a bid at any time prior to closing of the bidding.
All Assets will have a minimum bid price disclosed on the Site.
For certain Assets, the Seller may impose a reserve price, which
is not disclosed on the Site. If there are no bids above the minimum
bid or reserve price (whichever is higher), then the Seller is
not obligated to sell the Asset. After bidding closes on each
Asset, CWS will send the highest Bidder and Seller an email detailing
the highest bid and contact information (a "Sold Notice"). In
all auctions, Buyers who receive a Sold Notice are legally bound
to buy the asset at the quoted bid amount (see "Contractual Obligations
of Buyers and Sellers" below), and the Seller is legally bound
to sell the asset, pursuant to these Terms of Service, subject
to the additional conditions of sale specified by Seller. Except
as otherwise provided in connection with Bankruptcy Claims exchange,
the Seller is obligated to contact the winning Bidder within two
(2) business days to complete the transaction (or the Seller may
engage a representative, including CWS, to contact the winning
Bidder on the Seller's behalf, pursuant to prior agreement). After
two (2) business days if the Seller is unable to contact the winning
Bidder, for whatever reason, the Seller may, in its sole discretion
(a) continue to attempt to contact the high bidder with assistance
from CWS; (b) after contacting CWS, contact the second highest
Bidder and sell the Asset to the second highest Bidder; or (c)
re-list the asset on the Site. By selling an Asset to the next
highest Bidder, neither the Seller nor CWS is releasing any claims
he/she/it may have against the highest Bidder for non-performance.
Once the Seller contacts the winning Bidder, the Seller and winning
Bidder shall complete the settlement of the purchase and sale
of the Asset pursuant to "Settlement of Transactions" below.
2.2 SETTLEMENT
OF TRANSACTIONS GENERALLY
For non-Bankruptcy Claims exchange settlement, the settlement
of a purchase and sale of an Asset following a completed bidding
process shall be conducted pursuant to this Section, unless otherwise
provided in the Seller's conditions of sale or in a written agreement
executed by the Buyer and Seller. The conditions of sale for a
particular Asset may provide that a winning Bidder provide a deposit
within a short time after the auction closes, such as one or two
business days after a Sold Notice is given, or that a pre-bidding
deposit may be required prior to a Bidder being qualified to bid
on an asset, or no deposit may be required. Unless otherwise provided
in the Seller's conditions of sale or otherwise agreed upon by
the Seller and Buyer in writing, final settlement shall take place
no later than five (5) business days after Buyer is given a Sold
Notice, except for real estate assets. In the case of real estate
assets, a deposit in the amount of 5% of the final purchase price
(or greater if required by the Seller in the conditions of sale)
shall be wired by the Buyer within five (5) business days of receiving
a Sold Notice, and settlement shall occur no later than thirty
(30) days after Buyer is given a Sold Notice. Sellers shall provide
unsigned copies of any documents of transfer or other necessary
settlement documents to the Buyer within two (2) business days
of receiving the Sold Notice. In order to conduct settlement,
the Buyer shall send or wire the full purchase price (minus any
deposit previously paid) to the Seller's account pursuant to payment
information provided no later than two days after a Sold Notice
is issued (or earlier if a deposit is required). Upon receipt
of the full purchase price, the Seller shall send the fully executed
settlement documents, as appropriate, to Buyer by overnight mail
at Seller's expense.
III. RESPONSIBILITIES
OF BUYERS AND SELLERS
3.1 WHO
CAN BID?
Bidders
must register with CWS as a Member and be capable of forming legally
binding relations under applicable law. The services provided
by CWS are not available to individuals under the age of 18 years
old and any other individuals who are legally prohibited from,
or otherwise incapable of, entering into binding contracts.
3.2 WHO
CAN SELL?
Sellers must be the rightful owners or authorized by the owners
of such property, a court of law, or through power of attorney
to sell an Asset. Sellers must produce evidence of ownership and/or
authorization to sell an Asset upon request of CWS or a Buyer.
In addition, CWS may require a Seller to pay for a UCC lien search
or other due diligence to be conducted with respect to an Asset
prior to listing the Asset on the Site.
3.3 CONTRACTUAL
OBLIGATIONS OF BUYERS AND SELLERS
(a) Terms
of Service As Contract. These Terms of Service, together with
any additional conditions of sale provided by a Seller for a particular
Asset disclosed on the Site, comprise a contract between a Seller
and the winning Bidder in any completed auction. By bidding on
an Asset a Bidder agrees, and by listing an Asset on the Site,
a Seller agrees, to be bound by these Terms of Service and the
Seller's conditions of sale included in the Asset's description,
so long as those conditions of sale are not in violation of these
Terms of Service or unlawful. In the event of any direct conflict
between these Terms of Service and any conditions of sale provided
by a Seller, these Terms of Service shall prevail; except that
in the event of a direct conflict regarding the timing and requirements
of settlement provided in the Section entitled "Settlement of
Transactions" above, the Seller's conditions of sale shall prevail
with respect to such provisions.
(b) Offer
and Acceptance - Binding Contract Between Buyer and Seller.
A bid made by a Buyer is an offer to purchase the asset from the
Seller at the stated bid price. The bid is an irrevocable offer,
subject only to material changes in the description of an asset
made after such bid is placed by a Buyer. Buyers are required
to conduct any research or due diligence of an asset prior to
making a bid (See "Other Responsibilities of Bidders/Buyers" below).
All Assets are listed and sold on an "as is"/"where is" basis.
If a Buyer bids on an asset and that bid represents the highest
bid for that asset, and the highest bid is at or above the Seller's
minimum and/or reserve price (whichever is higher), the Buyer's
bid is deemed accepted by the Seller (subject to these Terms of
Service, including the right of a Buyer to change or retract a
bid in the event of a material change in the description of the
Asset, as set forth below), except for an exceptional circumstance,
such as a typographical error. Once the Seller accepts a Buyer's
bid, the Buyer is obligated to purchase the asset at the price
he/she offered and pursuant to these Terms of Service and the
Seller's conditions of sale. If a Seller receives at least one
bid at or above the Seller's stated minimum price (or in the case
where the Seller has set a reserve price, at or above the reserve
price), the Seller is obligated to complete the transaction with
the highest Bidder upon the completion of the bidding, unless
there is an exceptional circumstance, such as a clear typographical
error or other conditions stated in these Terms of Service. In
the case of a sale of any assets from a bankruptcy estate, a sale
is not final until a bankruptcy court gives final approval of
the sale (see "Other Conditions of Purchase and Sale"). The Seller's
conditions of sale may provide for a specific form of purchase
agreement to be executed by the Seller and winning Bidder after
the auction closes. In the absence of a specific form being provided
by the Seller in the conditions of sale, the Seller or the winning
Bidder may request that the parties execute a standard form of
purchase agreement, consistent with these Terms of Service and
the Seller's conditions of sale, to memorialize and confirm the
agreement between the parties. Sellers and Buyers agree to act
reasonably and in good faith in negotiating and entering into
a written purchase agreement if requested by either party.
(c) Post-Auction
Sales. In the event an auction closes and no Bidder has bid
an amount at or in excess of the reserve price, then the Seller
may, at the Seller's option, instruct CWS to send an e-mail to
all Bidders who submitted bids on that Asset and ask for each
Bidder's final and best offer or otherwise attempt to negotiate
a sale with any of such Bidders. The Seller shall have the right
to choose whether to accept or reject any of such offers and whether
to complete the sale of the Asset to any such Bidders or to re-list
or withdraw the Asset. In the event the Seller agrees on the terms
of a purchase and sale with any Bidder pursuant to such post-auction
negotiation process, then the parties shall enter into a purchase
agreement to memorialize the terms of their agreement.
(d) Material
Change in Description of Asset. In the event a Seller materially
changes the description of an Asset after the commencement of
the bidding process, then all Bidders who have previously made
a bid on such Asset will be notified by e-mail that the description
of the asset has been materially changed. Such Bidders will then
have three business days (or another period provided in a notice
to such Bidders) to amend or retract his/her/its bid, after which
time all bids will remain irrevocable.
(e) Other
Conditions of Purchase and Sale. All purchases and sales of
Assets and use of the Site by Members shall be conducted in compliance
with applicable law. Purchases made on the Site are entirely without
recourse to CWS. All Members acknowledge and agree that closing
of all sales of Assets may be subject to final approval of a court
(including a bankruptcy court) or other agency and that if such
approval is not obtained, the Seller may withdraw such Asset after
a completed bidding process without any recourse or liability
on the part of Seller. In the case of a sale of any assets from
a bankruptcy estate, a sale is not final until a bankruptcy court
gives final approval of the sale. As with any sale of bankruptcy
assets, third parties involved with a bankruptcy estate may object
to a sale of assets.
(f) Enforcement
of Buyer and Seller Contract Obligations. All Members are
third party beneficiaries of these Terms of Service, and Buyers
and Sellers shall be entitled to enforce the provisions hereof
and may pursue legal action against each other for non-performance
of any provision hereof, including without limitation, non-performance
of a purchase and sale after a completed bidding process. In addition,
CWS retains the right to terminate a Member's rights to use the
Site in the event a Member violates these Terms of Service.
3.4 OTHER
RESPONSIBILITIES OF BIDDERS/BUYERS
(a) Conducting
Due Diligence. All Assets are listed and sold on the Site
on an "as is"/"where is" basis. Bidders are required to conduct
any research or due diligence of an asset that they wish to conduct
prior to making a bid. Bidders wishing to physically inspect Assets
seen on the Site may make arrangements to do so at Seller's discretion.
The Seller's terms of sale and/or description of an Asset shall
contain information regarding inspections and other due diligence
opportunities available. However, in the case of an asset such
as a promissory note, mortgage, or other Asset that involves a
payer or debtor or other third party that is not a Seller and
not part of the purchase and sale transaction on this Site, then
Bidders are strictly prohibited from contacting such payers, debtors,
or other third parties until the bidding is complete, the winning
Bidder has paid for the Asset in full, and the purchase and sale
of the Asset is settled. Permitted due diligence includes reviewing
the Seller's description of an Asset, as well as reviewing land
records, tax records, appraisals, and other publicly available
sources.
(b) Completing
a Settlement. After the online bidding is complete, unless
otherwise indicated, Buyers are responsible for taking all necessary
actions to complete the sale once a Sold Notice is given to Buyer.
CWS retains the rights to terminate a Buyer's rights to use the
Site in the event a Buyer fails to perform its obligations to
settle on a completed auction.
3.5 OTHER
RESPONSIBILITIES OF SELLERS
(a) Description
of Assets. Sellers must accurately describe Assets in a listing
provided for inclusion on the Site and shall be liable for any
misstatements or omissions in such description. Failure to accurately
describe an Asset could be fraudulent and could subject a Seller
to civil and/or criminal liability, as well as being a violation
of these Terms of Service. CWS retains the right to terminate
a Seller's rights to use the Site in the event a Seller includes
material misstatements or omissions in an Asset's description.
Prior to listing an Asset, Sellers shall provide to CWS any terms
or conditions of sale for particular Assets in addition to these
Terms of Service.
(b) Compliance
With All Applicable Laws. Sellers are also responsible for
complying with all applicable local, state, federal, or foreign
laws, rules, regulations and legal approvals regarding the sale
of any Assets, including without limitation, bankruptcy court
approvals, federal and state securities laws regarding the sale
of any Assets that may be deemed a "security," Seller disclosure
laws for any real estate asset, including environmental and broker
licensure laws, export licensing and laws governing the sale,
packaging, shipment, distribution and labeling of products, published
materials or information, and all other applicable local, state,
federal, or foreign laws, rules and regulations pertaining to
the sale of any Assets. Sellers are solely responsible for ensuring
that all items offered for sale are offered in full compliance
with any applicable legal limitations or restrictions.
(c) Linking
With Other Web Sites or Information. Without the prior written
consent of CWS, no listing shall establish a link to any web site
or other areas or include any advertisement or statement relating
to any business, individual, organization, concept or entity.
(d) Accepting
Risk of Buyer's Ability to Complete a Transaction. CWS may
provide Sellers with a range of services in an attempt to assure
qualified legal Buyers. Such tools may include escrow, deposits,
credit check and others. However, Sellers acknowledge and agree
that these services and requirements are not a guarantee that
Buyers are qualified Buyers. CWS does not provide any representations
with regard to the ability of Bidders to pay Sellers the bid price
for the asset being sold.
(e) Completing
a Settlement. After the online bidding is complete, unless
otherwise indicated, Sellers are responsible for taking all necessary
actions to complete the sale once a winning bidder is identified
to the Seller. CWS retains the rights to terminate a Seller's
rights to use the Site in the event a Seller fails to perform
its obligations to settle on a completed auction.
(f) Payment
of Commissions and Fees to CWS. Payment of fees for Asset
Listing and/or Premium Services are due when the Seller elects
to list an asset with CWS. Unless otherwise agreed to by CWS and
the Seller, Commissions related to a closed auction are due to
CWS at the time that the Seller is notified by email that a winning
bidder has been identified through our auction. It is the Seller's
responsibility to consummate the sale of the asset.
(g) Exclusivity.
SELLER AGREES THAT CWS WILL BE THE SOLE VENUE FOR EACH LISTED
ASSET FOR THE TERM OF THE LISTING ONLINE OR OTHERWISE. SELLER
MAY NOT DUPLICATE ANY LISTED ASSET ON ANY OTHER ONLINE SITE OR
THROUGH ANY OFFLINE SALES METHOD. IF A BUYER MAKES AN OFFER OUTSIDE
OF THE CWS VENUE IT IS SELLER'S OBLIGATION TO PLACE OR HAVE THAT
BID SUBMITTED ON THE CWS SITE FOR THE ASSET IN QUESTION. CWS WILL
PROVIDE THIS SERVICE FOR ABSENTEE BIDDERS UPON WRITTEN REQUEST.
ONCE AN ASSET IS LISTED ON THE SITE, IF A SELLER SELLS THE ASSET
OUTSIDE THE CWS VENUE, THEN CWS SHALL BE ENTITLED TO RECEIVE THE
FULL COMMISSION THAT IT WOULD HAVE RECEIVED IF THE ASSET WERE
SOLD ON THE SITE.
IV. RIGHTS
AND RESPONSIBILITIES OF CWS MARKETING GROUP
4.1 MODIFICATIONS
TO TERMS OF SERVICE
CWS may change these Terms of Service from time to time. Any amendment
shall be effective immediately upon notice by e-mail, conventional
mail service, posting on the Site, or any other means of communication.
Member's continued use of the Site constitutes an affirmative:
(1) acknowledgment by Member of these Terms of Service and any
modifications; and (2) agreement by Member to abide and be bound
by these Terms of Service, including any modifications.
4.2 SUPERVISION
OF CONTENT
CWS reserves the right to supervise all material, content and
information on its Site, including, but not limited to, asset
listings and bidding activity, to determine compliance with the
Terms of Service and all current and future operating procedures
and rules of conduct established by CWS. CWS reserves the right,
at its sole discretion, to amend, edit, remove or otherwise block
any material posted by a Member, which may violate any state,
federal or local law or violate any aspect of these Terms of Service
or which may otherwise jeopardize the business operations or goals
of CWS.
4.3 ADDITIONAL
SERVICES
CWS can, upon request, perform additional services associated
with the fulfillment of an asset including, but not limited to
valuation services, insurance, shipping, storage and securing
of Assets. These services are subject to mutual written agreement
by Member and CWS.
4.4 TERMINATION
OF MEMBER'S RIGHTS TO USE SITE
CWS retains the right to terminate a Member's rights to use the
Site in the event a Member violates any aspect of these Terms
of Service, including a Seller's conditions of sale, or takes
any action which may otherwise jeopardize the business operations
or goals of CWS.
4.5 NATURE
OF CWS MARKETING GROUP RESPONSIBILITIES
CWS agrees to act with respect to each CWS transaction in accordance
with these Terms of Service. The duties and responsibilities of
CWS and its affiliates shall be limited to those expressly set
forth in these Terms of Service and it shall not be subject to,
or obliged to recognize, any other agreement between, or direction
or instruction of, any or all of the parties to any such CWS transaction.
MEMBER ACKNOWLEDGES AND AGREES THAT CWS'S DUTIES ARE MINISTERIAL
IN NATURE. CWS IS MERELY A FACILITATOR AND PROVIDES TRANSACTIONAL
ASSISTANCE TO ITS MEMBERS AND IS NOT A PRINCIPAL TO ANY TRANSACTION.
CWS SHALL NOT AND DOES NOT TAKE TITLE OR OWNERSHIP OF ANY PROPERTY
OR FUNDS HELD BY IT. TITLE TO SUCH PROPERTY OR FUNDS SHALL BELONG
TO THE SELLER OR BUYER, AS THE CASE MAY BE, AND SHALL BE HELD
AND DISPOSED OF IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED
IN THESE TERMS OF SERVICE OR AS OTHERWISE AGREED UPON BETWEEN
BUYER AND SELLER. ANY DISPUTES AND/OR DISAGREEMENTS BETWEEN BUYER
AND SELLER MUST BE ADDRESSED BETWEEN BUYER AND SELLER, AND MEMBER
EXPRESSLY AGREES NOT TO HOLD RESPONSIBLE, CWS OR ANY OF ITS EMPLOYEES,
REPRESENTATIVES OR AFFILIATES IN ANY WAY OR IN ANY MANNER. MEMBER
ACKNOWLEDGES AND AGREES THAT NEITHER CWS NOR ANY OF ITS EMPLOYEES,
REPRESENTATIVES OR AFFILIATES ENDORSES ANY OF THE ASSETS THAT
ARE TRANSFERRED THROUGH THE SITE AND THAT NEITHER CWS NOR ITS
EMPLOYEES, REPRESENTATIVE OR AFFILIATES IS RESPONSIBLE FOR ANY
DAMAGES TO GOODS DURING TRANSIT NOR FOR MISREPRESENTATIONS AND/OR
BREACHES OF CONTRACT BY EITHER BUYER AND/OR SELLER. CWS AND ITS
EMPLOYEES, REPRESENTATIVES AND AFFILIATES SHALL ALSO BE FULLY
PROTECTED IN RELYING UPON ANY WRITTEN NOTICE, DEMAND, CERTIFICATE
OR DOCUMENT, WHICH IT IN GOOD FAITH BELIEVES TO BE GENUINE. NEITHER
CWS NOR ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES SHALL INCUR
ANY LIABILITY WHATSOEVER EXCEPT FOR THE WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE OF CWS.
V. OTHER
PROVISIONS
5.1 DISCLAIMER
OF WARRANTIES
MEMBERS EXPRESSLY AGREE THAT USE OF THE SITE IS AT A MEMBER'S
SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE"
BASIS. CWS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. CWS MAKES NO WARRANTY THAT THE SERVICES
PROVIDED ON THE SITE WILL MEET A MEMBER'S REQUIREMENTS, OR THAT
SUCH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR
FREE; NOR DOES CWS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY
BE OBTAINED FROM THE USE OF THE SITE OR AS TO THE ACCURACY OR
RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE OR THAT
DEFECTS IN ANY SOFTWARE WILL BE CORRECTED. CWS MAKES NO WARRANTY
REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH
THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER
FROM CWS OR ANY OF ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES
OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE
HEREIN.
5.2 LIMITATION
OF LIABILITY
IN NO EVENT SHALL CWS OR ANY OF ITS EMPLOYEES, REPRESENTATIVES
OR AFFILIATES BE LIABLE TO A MEMBER OR ANY OTHER PERSON OR ENTITY
IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS
OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE
OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND
WHETHER OR NOT A MEMBER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS
OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED
IN THE FEES AGREED UPON BY THE PARTIES. FURTHER, CWS'S AGGREGATE
LIABILITY ARISING WITH RESPECT TO MEMBER'S USE OF THIS SITE SHALL
NOT EXCEED THE GREATER OF (A) $100 or (B) THE TOTAL AMOUNTS PAID
BY THE MEMBER TO CWS UNDER ANY COMMISSION AGREEMENT IN THE 6 MONTHS
PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
5.3 NO
RESALE OR COMMERCIAL USE OF THE SERVICES PROVIDED ON THE SITE
Member's right to use the Site is personal to Member. Member agrees
not to resell or make any commercial use of the services provided
on the Site without the express written consent of CWS. Member
acknowledges that content appearing on the Site may be protected
by copyrights, trademarks or other proprietary or personal rights
and that applicable laws will govern the Member's use of such
content. Member agrees that without the prior written consent
of CWS, Member shall not resell the Site, or the services provided
on the Site, or use the Site for the transmission of commercial
solicitations (other than an offer by Seller of Assets for sale)
or for the receipt of responses to commercial solicitations (other
than a Buyer's interest in purchasing Assets offered for sale
through the Site) without the express written consent of CWS.
Member agrees not to, for a commercial purpose, upload, transmit,
reproduce, distribute or participate in the transfer or sale,
or in any way exploit, any content obtained through the Site.
Member agrees not to use the Site for the transmission of (or
receipt of responses to) chain letters, lotteries, gambling or
pyramid schemes of any kind. Member agrees not to use the Site
to disseminate any message in a broad-based mailing without the
prior written permission of CWS. Member agrees not to forge communications
or take any other action that would disguise the origin of communications
Member transmits through the Site. Member agrees not to permit
another person to transmit communications that falsely identifies
the Member's account as the origin of such communication. Nothing
herein shall limit or prevent any Buyer from re-selling any Asset
purchased through the Site.
5.4 MEMBER
CONDUCT
Member is solely responsible for the contents of his/her/its transmissions
through the Site. Member's use of the Site is subject to all applicable
local, state, national and international laws and regulations.
Member agrees: (1) to comply with US law regarding the transmission
of technical data exported from the United States through the
Site; (2) not to use the Site for illegal purposes; (3) not to
interfere or disrupt networks connected to the Site; and (4) to
comply with all regulations, policies and procedures of networks
connected to the Site. Member agrees not to transmit through the
Site any unlawful, harassing, libelous, abusive, threatening,
harmful, vulgar, obscene or otherwise objectionable material of
any kind or nature. Member further agrees not to transmit any
material that encourages conduct that could constitute a criminal
offense, give rise to civil liability or otherwise violate any
applicable local, state, national or international law or regulation.
Attempts to gain unauthorized access to other computer systems
are prohibited. Member further agrees not to use the Site in a
manner that violates any Federal, state or local laws or statute,
including but not limited to the sale of any regulated substances.
5.5 NOTICES
- DEFINITIONS
Sold Notices and other notices given by CWS shall be valid when
sent by email to the email address registered with CWS. The term
"Buyer", "Bidder", "Seller", and "Member" includes corporations,
partnerships, persons, agents, representatives and any legal entity
entitled to participate in the Site.
5.6 RELEASE
AND INDEMNIFICATION
Member hereby waives, releases, forgives, discharges and relinquishes
any and all claims that Member now has or may have against CWS,
its affiliates, subsidiaries, parents, shareholders, directors,
officers, employees, agents and representatives which are connected
with, arise out of, relate to or are incidental to any CWS transaction
or the use of the Site. Member hereby agrees to indemnify, defend
and hold CWS, its affiliates, subsidiaries, parents, shareholders,
directors, officers, employees, agents and representatives harmless
from and against any and all claims, loss, damage, tax, liability
and/or expense that may be incurred by CWS, its affiliates, subsidiaries,
parents, shareholders, directors, officers, employees, agents
and representatives arising out of or in connection with the performance
of its duties as described in this Agreement (except as caused
by its gross negligence or willful misconduct) including the legal
costs, fees and expenses of defending itself against any claim
by any or all of the parties to any CWS transaction and/or by
any other person and/or as a result of the Member taking any action
or refraining from taking any action or instituting or defending
any action or legal proceeding. Member further agrees to indemnify
and hold CWS, its affiliates, subsidiaries, parents, shareholders,
directors, officers, employees, agents and representatives harmless
from any claim or demand, including reasonable attorneys' fees,
made by any third party due to or arising out of Member's use
of the Site, the violation of these Terms of Service by Member,
or the infringement by Member, or other Member of the Site using
Member's computer, of any intellectual property or other right
of any person or entity.
5.7 RESOLUTION
OF DISPUTES
(a) Resolution
of Disputes Generally. MEMBER ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS PROVIDED BELOW FOR DISPUTES INVOLVING SETTLEMENT OF
BANKRUPTCY CLAIMS EXCHANGE AUCTIONS, ANY DISPUTE INVOLVING CWS
SHALL BE SETTLED BY ARBITRATION IN INDIANAPOLIS INDIANA IN ACCORDANCE
WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. 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. JUDGMENT ON
THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION
THEREOF. EITHER MEMBER OR CWS MAY SEEK INTERIM OR PREMILINARY
RELIEF FROM A COURT OF COMPETENT JURISDICTION IN INDIANA NECESSARY
TO PROTECT THE RIGHTS OR PROPERTY OF MEMBER OR CWS PENDING THE
COMPLETION OF ARBITRATION.
(b) Disputes
Involving Settlement of Bankruptcy Claims Exchange Auctions.
MEMBER AGREES THAT ANY DISPUTE ARISING UNDER THE TERMS OF THE
BANKRUPTCY CLAIMS EXCHANGE SETTLEMENT PROCESS BETWEEN BUYER AND
SELLER WILL BE SETTLED BY ARBITRATION IN INDIANAPOLIS, INDIANA,
IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. 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 DECISION OF THE ARBITRATOR SHALL BE BINDING AND JUDGMENT
ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT OF APPROPRIATE
JURISDICTION. ARBITRATION MUST BE INITIATED WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION AROSE.
5.8 NO
AGENCY
Member and CWS are independent contractors, and no agency, partnership,
joint venture, employee-employer or franchiser-franchisee relationship
is intended or created by these Terms of Service.
5.9 APPLICABLE
LAW AND OTHER TERMS
These Terms of Service shall be governed by and construed in accordance
with the laws of the State of Indiana. If any provision(s) of
these Terms of Service is held by a court of competent jurisdiction
or authorized arbitral body to be contrary to law, then such provision(s)
shall be construed, as nearly as possible, to reflect the intentions
of the parties with the other provisions remaining in full force
and effect. CWS's failure to exercise or enforce any rights or
provisions of these Terms of Service shall not constitute a waiver
of such right or provision unless acknowledged and agreed to by
CWS in writing. Member and CWS agree that any cause of action
arising out of or related to the use of the Site must commence
within one (1) year after the cause of action arose; otherwise,
such cause of action is permanently barred and Member and CWS
forever waives any such cause of action. The section titles in
these Terms of Service are solely used for the convenience of
the parties and have no legal or contractual significance.
|
