KVA Network, Inc. (“Company”) owns and maintains a website located at www.kvanetwork.com (the “Website”) for the purpose of providing an open marketplace for the buying and selling of transformers and surplus electrical equipment for purposes that include, but are not limited to, direct sales, resale, surplus inventory and scrap/salvage operations. For the purpose of this Seller Agreement (“Agreement”), a “Seller” shall be deemed to be the individual or entity agreeing to these terms and who are members of the Website who wish to have the right to post auction listings, classified listings and store fronts on the Website as set forth below. Company and Seller are hereinafter referred to each as a “Party,” and collectively as the “Parties.”
BY CLICKING “LIST NOW” OR “SAVE AS DRAFT”
FURTHERMORE, EACH TIME SELLER POSTS A NEW LISTING PURSUANT TO THIS AGREEMENT, HE IS FURTHER REITERATING AND RESUBMITTING ITS AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE WEBSITE AGREEMENTS THAT ARE IN EFFECT AT THE TIME THAT SELLER POSTS A NEW LISTING. MOREOVER, BY POSTING A NEW LISTING, SELLER IS REPRESENTING THAT HE HAS BEEN IN COMPLETE AND SATISFACTORY COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE WEBSITE AGREEMENTS TO DATE.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the sufficiency of which is hereby stipulated, the Parties, intending to be legally bound, hereby agree as follows:
1.Types of Listings. Seller may elect to sell various products such as transformers or surplus electrical equipment (collectively, “Products”, each a “Product”) based on the following two types of listings: (a) an auction listing (“Auction Listing”), which is an announcement for the sale of a Product and shall act as a platform where sellers can receive bids from buyers on the Product for a certain amount of time, as determined by the Seller; and/or (b) a classified listing (“Classified Listing”), which is an announcement for the sale of a Product and aims to connect buyers and sellers so that they can negotiate the terms of the transaction. Auction Listings and Classified Listings collectively are hereinafter referred to as “Listings” and each a “Listing.” All information, content and material contained within a Listing shall be deemed to be part of the Member Content pursuant to the Terms and Conditions, and as such, all representations, warranties, covenants and licenses that apply to the Member Content, as outlined in the Terms and Conditions shall likewise apply to all information submitted within and constituting a Listing.
2.1.Auction Listing Mechanics. Where Seller seeks to have an Auction Listing posted on the Website, Seller shall set forth within the listing accurate and complete information about the Product including: Product description and/or specifications; photos/images of the Product; a minimum bid that will be accepted by the Seller; Product transfer information; Seller’s return/refund policies; the time period for which the bid will be open; and the Seller’s preferred payment method. Upon the expiration of the Auction Period (as defined below), the Seller may award the Product to the buyer who entered the highest bid (or largest purchase price). Once awarded to a specific buyer, the Seller shall immediately contact the buyer to arrange and coordinate payment and delivery of the Product.
2.2.Publication of the Auction Listing. Seller may select the current date or designate a date in the future as to when the Auction Listing will be published and the auction commence (“Auction Listing Publication Date”). Notwithstanding the foregoing, the Action Listing Publication Date may not be later than ninety (90) days from the date that the Auction Listing is submitted to the Website. Company will undertake good-faith efforts to post the Auction Listing on the Website on the Auction Listing Publication Date subject to certain exceptions set forth herein.
2.3.Duration of the Auction Listing. Subject to the exceptions set forth herein, the Auction Listing shall be posted on the Website for an initial period as determined by Seller in the original Auction Listing or as subsequently changed by him (“Auction Period”). The Auction Period shall commence from the Auction Listing Publication Date. Subject to the within exception and except as otherwise set forth herein, an Auction Listing shall be viewable on the Website until the end of the Auction Period. Sellers may end an auction before the expiration of the Auction Period. In such event, the Seller shall be obligated to provide written notice to the Company of that fact and the Seller shall modify or remove its Auction Listing accordingly. Seller agrees to inform any and all buyers who submitted bids on the Product of such a change. Seller acknowledges and agrees that Seller shall undertake such an action at its own risk and may also lose the potential highest bid if he decides to end the auction before the expiration of the Auction Period. Upon the expiration of the Auction Period, unless the Auction Listing has been previously terminated by the Seller, and subject to the exceptions set forth herein, the Auction Listing will be automatically relisted on the Website for a period of time equivalent to the Auction Period and shall continue to be relisted for this period of time, unless and until Seller deactivates the automatic renewal feature on its setting with respect to that Auction Listing. As such, the Seller shall continue to accrue and be obligated to pay the Company all applicable fees for any relistings, unless and until the expiration of the then-current Auction Period when Seller deactivates the automatic renewal feature. Notwithstanding the foregoing, in no event shall the Seller be entitled to relist an Auction Listing on the Website more than fifteen (15) times. Seller acknowledges that the posting of the Auction Listing is time-sensitive in that the specific time that the Auction Listing is posted to the Website will be determinative of the expiration of the Auction Period and/or the effective day of deactivation. By way of example, where the Auction Listing is posted on the Website on April 1, 2012 at 8:45 a.m., for an initial period of fourteen (14) days, the Auction Period will expire on April 15, 2012 8:45 a.m. Where Seller does not wish to have the Auction Listing automatically relist for the next Auction Period, Seller must deactivate the automatic renewal feature prior to 8:45 a.m. on April 15, 2012. In addition, Seller acknowledges and agrees that if it has selected the Live Payment Mode (as defined below) when registering its account with the Website, Company may delay or cancel the relisting of the Auction Listing unless and until it receives any and all applicable Fees (as defined below). In addition, the Seller expressly acknowledges that depending on how the Seller customized the commencement and expiration dates of the Auction Period, there may be gaps in time in which the Auction Listing is not posted on the Website. By way of example, if the Seller identifies the Auction Period as from April 15, 2012 to April 16, 2012, upon the expiration of the Auction Period, the Auction Listing will be relisted commencing on May 15, 2012 and expiring on May 16, 2012.
2.4.Standard vs. Dutch Auction Listings. When creating the Auction Listing, the Seller can elect whether it wants its auction to operate as a Standard or a Dutch Auction, and shall designate the same within its Auction Listing. Standard Auction Listings are those Auction Listings where only one Product is being bid on. A Dutch Auction Listing is an Auction Listing where the Seller can list multiple Products to be bid on. The Seller shall continue to post the Dutch Auction Listing will until all Products in the Dutch Auction Listing are sold. Seller may elect to submit a Standard Auction Listing or a Dutch Auction Listing and acknowledges that different fees may apply to both, as set out in the Fee Schedule located on the Website. The Fee Schedule on the date the respective Listing is posted shall be used to determine the applicable fees relating to Standard Auction Listing and/or the Dutch Auction Listing.
2.5.Modifications to the Auction Listings After the Publication Date. If a Seller wants to amend, change, edit, revise and/or modify (“Make Modifications”) any of the contents of an original Auction Listing after the Auction Listing Publication Date, Seller may do so, so long as there are no bids placed with respect to that Auction Listing. In addition and with respect to relisted Auction Listings, Seller may Make Modifications to the relisted Auction Listings as follows: (a) prior to the placement of any bids on the Product set forth in the relisted Auction Listing; or (b) where Seller has opted out of the automatic renewal feature of the original Auction Listing, prior to the manual relisting of the Auction Listing. If Seller wishes to Make Modifications after the time set forth herein, Seller may provide a written request to Company identifying the specific changes it would like to make to the Auction Listing including, without limitation, the inclusion of additional or more specific information. Company has complete discretion to grant Seller’s written request or deny it in part or in whole. At this time, there are no additional fees associated with making the requested modifications, so long as the modifications do not change how the Auction Listing is displayed on the Website, but Company reserves the right to charge fees with respect to same at a later date.
3.1.Mechanics of Classified Listings. Where Seller seeks to have a Classified Listing posted on the Website, Seller shall post accurate and complete information about the Product in the Classified Listing and potential buyers will be able to review it. Interested buyers will have the option to contact the Seller if interested in purchasing the Product described within the Classified Listing. The Classified Listing may include: Product description and/or specifications; photos and/or images of the Product; a price for the Product; the preferred payment method; and the Seller’s contact information; and preferred way of contact. If an interested buyer contacts the Seller, the Seller may negotiate the terms and conditions with respect to the sale of the Product directly with the buyer. All the terms and conditions of the transaction, including but not limited to the Product price, shipping fees, return/refund policies and delivery date shall be as established and articulated by the Seller or as agreed upon by the Seller and the buyer. Seller acknowledges that a buyer may be able to negotiate with several sellers at once and is not necessarily obligated to finalize the deal with any particular seller.
3.2.Publication of Classified Listing. Once the Seller clicks the “Submit” button to submit the Classified Listing, the Company will undertake commercially reasonable efforts to post it. The date on which the Classified Listing is posted on the Website is herein referred to as the “Classified Listing Publication Date.” Classified Listings will appear on the Website in the order in which they are posted. When a new Classified Listing is posted, the prominence of the older Classified Listing will go down.
3.3.Duration of Classified Listing. The Classified Listing shall be posted on the Website for an initial thirty-day period, commencing from the Classified Listing Publication Date. Thereafter and subject to the exceptions set forth herein, the Classified Listing will be relisted automatically and continue to be published on the Website for additional thirty-day periods, unless and until Seller provides notice to Company that it no longer wishes to have the Classified Listing relisted on the Website. Seller shall provide any such notice to Company so that it is received by Company at least two (2) business days prior to the expiration of the respective thirty-day period. If Seller fails to provide timely notice as set forth herein, Seller shall be responsible for all costs that have accrued with respect to the automatic relisting of the Classified Listing on the Website. In addition, the Classified Listing shall not be relisted for more than sixty (60) thirty-day periods. Importantly, Seller acknowledges that the posting of the Classified Listing is time-sensitive in that the specific time that the Classified Listing is posted to the Website will be determinative of the expiration of any thirty-day periods. By way of example, where the Classified Listing is posted on the Website on April 1, 2012 at 8:45 a.m., the initial thirty-day period will expire on May 1, 2012 at 8:45 a.m. Unless Seller provides timely notice to Company that it does not wish to relist the Classified Listing prior to 8:45 a.m. on May 1, 2012, the Classified Listing will be automatically relisted for an additional thirty-day period and Seller shall be responsible for any and all fees relating to same pursuant to this Agreement. In addition, Seller acknowledges and agrees that if it has selected the Live Payment Mode (as defined below) when registering its account with the Website, Company may delay or cancel the relisting of the Classified Listing unless and until it receive any and all applicable Fees (as defined below) prior to the expiration of the then 30-day period.
3.4.Modifications to the Classified Listings. Seller may Make Modifications to a Classified Listing at any time. At this time, there are no additional fees associated with Making Modifications to the Classified Listing after the Classified Listing Publication Date if the modifications do not change how the Classified Listing is displayed on the Website, but Company reserves the right to charge fees with respect to same at a later date.
4.1.Buyer Questions about the Listings. Potential buyers may contact Seller with certain questions or inquiries regarding the Listing and/or Product contained therein and terms and conditions governing same. If the buyer has asked his question publicly, then the Seller may elect to answer or respond to the question or inquiry publicly or privately. If Seller elects to answer or respond to the question or inquiry publicly, the buyer’s question or inquiry and Seller’s response to same will be displayed on the Website in connection with the Listing. A buyer also has the option of making its question or inquiry to Seller public or private. If the buyer elects to make the question or inquiry private, Seller may not elect to make the question or inquiry, and/or Seller’s answer or response to the same, public. Unless Seller elected to turn off the “notification via email” feature on its account with the Website, Company will undertake reasonable efforts to notify Seller of any potential buyer’s question or inquiry by emailing the Seller via the Website master email. It is solely the Seller’s responsibility to ensure that (a) its contact information is accurate, correct, complete and current; (b) it checks its email on a frequent basis; (c) any messages from Company with respect to the Listings does not end up in Seller’s spam and/or junk mail; and, (d) it responds to any potential buyers’ questions or inquiries in a timely manner and provides truthful, accurate and complete responses to same. In that regard, Seller acknowledges that its failure to undertake any of the aforementioned responsibilities may hamper or impede a potential sale. Seller acknowledges that the inquiring buyer’s identity and contact information may not be contained within the question, and that the Seller shall have no right to compel the Company to disclose information about the inquiring buyer or any potential buyers.
4.2.Seller’s Terms. It is Seller’s sole responsibility to (a) properly convey and communicate to potential buyers all of the terms and conditions governing the Listings and/or Products contained therein in a clear and truthful manner; (b) ensure that potential buyers understand and agree to the Seller’s terms and conditions; and (c) enforce the Seller’s terms and conditions against buyers, apart and without the involvement of Company.
5.Company’s Disclaimers Regarding the Listings.
5.1.Company Does Not Screen Listings. Company is under no obligation whatsoever to approve, reject, review and/or screen Listings. Notwithstanding the foregoing, Seller acknowledges and agrees that Company has full and sole discretion to approve or reject a Listing in whole and/or in part, even where the Company permits the Listing to be posted on the Website initially. Company may reject a Listing for any reason or no reason at all and may postpone the publication of a Listing to a later time, without the prior approval of Seller.
5.2.Seller Must Perform Its Own Due Diligence with Respect to Potential Buyers. Company does not make any representations and/or warranties whatsoever with respect to potential buyers who respond to the Listings including, without limitation, any representations or warranties as to the buyer’s identity, viability and/or its ability to complete a certain transaction. As Company does not screen potential buyers, it cannot make any representations as to the identity or credit worthiness of a buyer. Rather, Seller must perform its own due diligence and proceed at its own risk when engaging in a transaction with a buyer. In that regard, Seller has full authority and discretion to reject any potential buyers including, without limitation, the highest bidder with respect to the Auction Listing.
6.Store Front. For a separate fee, as set forth below in more detail, Seller may elect to set up a “Store Front” on the Website, which may display a summary of the Seller’s Products that are the subject of the then-current Seller’s Listings. In that regard, Seller can upload its logo, website, contact information, links to its Products that are the subject of the Listings and/or load its own auctions in its own categories. At Seller’s option, Seller may include information about itself and additional information such as “Frequently Asked Questions” within its Store Front pages and may include answers to questions about the terms and conditions governing Listings. Seller may also elect to utilize one of the Website’s templates (“Templates”) to design the Store Front. Website users will be able to search for a specific seller’s Products by searching the Seller’s contact information. In setting up the Store Front, Seller may incorporate certain key words and/or meta-data for purposes of directing potential buyers, who search for those key words and/or meta-data, to the Store Front. In that regard, Seller acknowledges that (a) Seller’s selection of key words and/or meta-data may not be exclusive in that other sellers may have the ability to select similar key words and/or meta-data; and (b) Company is under no obligation to screen and/or monitor any selected key words and/or meta-data for any purpose including, without limitation, for purposes of ensuring that the other sellers’ keywords and/or meta-data is not infringing Seller’s trademark or other rights. Seller agrees to only utilize those key words and/or meta-data that accurately describe the Product and/or Store Front and may not utilize the names, marks, logos and/or other intellectual property of any third parties including, without limitation, its competitors. In addition to the Indemnification obligations outlined in the Terms and Conditions of the Website and without limiting or impairing them in any manner, Seller shall further indemnify, defend and hold harmless the Company and the Company Parties (as defined herein) from and against any and all liability, damage, loss or expense (including actual attorneys’ fees and expenses of litigation incurred by or imposed upon the party arising from any claim against them, directly or indirectly) related directly or indirectly to any of the Seller’s acts or omissions set forth in this paragraph. Seller acknowledges and agrees that Company may, at its complete and sole discretion, delete, omit, remove and/or modify any of the key words and/or meta-data provided by Seller or any other content from a Store Front. Further, Company makes no representations and/or warranties whatsoever regarding the prominence and/or visibility of the Store Front and the links relating to same and does not undertake any obligations and/or duties to perform search engine optimization services for Seller.
6.1.Duration of Store Front. Once Seller submits the Store Front to be displayed on the Website, the Store Front will initially be displayed on the Website for a period of thirty (30) calendar days. Thereafter and subject to the exceptions set forth herein, the Store Front will continue to be displayed on the Website for additional thirty-day periods, unless and until Seller notifies Company that it no longer seeks to have the Store Front displayed (“Store Front Term”). In addition, Seller acknowledges and agrees that it shall provide separate notices to Company to terminate the Store Front and any Listings. In other words, though the Company shall have discretion to terminate all aspects of the Seller’s account, including any and all Listings and the Store Front, the Seller’s termination of any one aspect shall not automatically terminate the other features that it is using. Furthermore, Seller acknowledges and agrees that the Store Front does not terminate automatically by virtue of the Seller not having any Listings on the Website. Rather, Store Front Fees (as defined below) shall continue to accrue even if the Seller does not have any Listings on the Website unless and until Seller provides notice to Company that it no longer seeks to have the Store Front displayed. The commencement date for each monthly period will be the anniversary date of when the Seller submitted the Store Front to be displayed on the Website (“Store Front Commencement Date”).
6.2.Limited License. Seller acknowledges and agrees that Company is only granting it a fully revocable, limited license to utilize the Templates in connection with the Store Front during the Store Front Term. Upon the expiration of the Store Front Term, Company shall undertake commercially reasonable efforts to remove the Store Front within a reasonable time thereafter and Seller shall immediately cease from utilizing the Templates and/or any intellectual property related to the same in any manner. Seller shall be responsible for any and all Store Front Fees until the Company removes the Store Front from the Website. Seller acknowledges and agrees that if it is in the Live Payment Mode, Company is not obligated to continue to display the Store Front unless and until it receives the Store Front Fees applicable for the next thirty-day period.
7.Fees; Method of Payment.
7.1.Fees.Seller shall pay Company the following applicable fees (collectively, “Fees”, each a “Fee”):
7.1.1.Seller’s Listing Fees and Relisting Fees.In order to post a Listing on the Website, Seller shall pay Company listing fees per Listing (“Seller’s Listing Fees”) in accordance with the Fee Schedule on the Website. In addition, Seller shall pay Company additional relisting fees per Listing for each and every time the Listing is relisted (“Seller’s Relisting Fees”), as set forth in the Fee Schedule on the Website.
7.1.2.Final Value Fees. With respect to Auction Listings only, in addition to the Seller’s Listing Fees and/or Seller’s Relisting Fees, Seller shall also pay Company a percentage of the winning bid for Auction Listing (“Final Value Fees”) in accordance with the Fee Schedule.
7.1.3.Store Front Fees. In addition, if Seller selects to have a Store Front displayed on the Website, the Seller shall pay the fees identified in the Fee Schedule (“Store Front Fees”), on a monthly basis.
7.1.4.All Fees are in U.S. dollars. In addition to the Fees, Seller, and not the Company, is responsible for paying all the applicable taxes (including any related interest and penalties) associated with the Fees, whether legally imposed on Seller or Company. If paid by Company to the applicable taxing authority, Seller shall promptly reimburse Company therefor. Company reserves the right to make changes to the Fee Schedule from time to time, without prior notice to Seller. The Fee Schedule on the date the Listing is posted shall be used to determine the applicable Seller’s Listings Fees. The Fee Schedule on the date the Listing is re-listed shall be utilized to determine the applicable Seller’s Relisting Fees. The Fee Schedule on the date of sale of the Product shall be used to determine the applicable Final Value Fees. The Fee Schedule on the date the Store Front is posted shall be used to determine the applicable Store Front Fees. Company may choose to temporarily change the fees for promotional events (“Promotional Pricing”) (for example, free listing days), and such changes are effective when Company posts the temporary promotional event on the Website. Promotional Pricing is subject to terms and conditions set forth in the promotion being offered, and Company reserves the right to cancel or terminate the Promotional Pricing at any time and as determined in its full and sole discretion.
7.2.Method of Payment.
7.2.1.Account Payee. Seller may, in its discretion, apply to become an “Account Payee” with the Company. If Seller’s application to become an Account Payee is approved by Company, Company will provide certain credit to Seller, as determined by Company in its sole discretion, for purposes of posting Listings and/or displaying the Store Front on the Website. In that regard, Seller need not pay the Fees in accordance with the time prescriptions set forth above. Rather, Company may opt to invoice Seller for any and all Fees incurred during the preceding thirty (30) days. Seller shall pay such invoices within thirty (30) days from the date of the invoice. Company may charge interest to Seller at a rate of five percent (5%) per annum for invoices that are not paid on time. As part of the Account Payee application, Seller shall provide any and all information, as requested by Company in its discretion, including, without limitation, bank information, credit references and/or other personal and/or financial information with respect to the Seller and complete any forms provided to Seller by Company including, without limitation, a credit application. In addition, Seller shall provide any and all permissions, authorizations and/or consents relating to Company obtaining Seller’s credit reports and/or ratings and/or other personal and/or financial information with respect to Seller. Company has full and sole discretion to approve or reject Seller’s Account Payee application for any reason or no reason at all. Furthermore, if Company does approve Seller’s Account Payee application, Company may require that Seller agree to certain credit terms, which may be subject to a separate agreement, and Company may revoke Seller’s Account Payee status at any time with or without cause.
7.2.2.Live Payment Mode. Except where Seller applies to be an Account Payee and is accepted by Company as such, (a) the payment of Seller’s Listing Fees shall be made immediately upon submission of each Listing; (b) the payment of Seller’s Relisting Fees shall be made prior to the date of the applicable relisting date, as described above; (c) the payment of the Store Front Fees shall be made prior to the monthly anniversary of the Store Front Commencement Date; and, (d) the payment of Final Value Fees shall be made immediately due upon the end of the Auction Listing and/or upon the award of the Product, that is the subject of the Auction Listing, to a buyer. All Fees are payable through an independent, third party service provider acceptable to Company for the processing of payments such as PayPal and/or Google Checkout (“Payment Processor”). Seller shall be responsible for reviewing the terms and conditions of the user agreement with the Payment Processor, which will include, but not be limited to, the way the Payment Processor collects information, the manner in which they process payments and the duties and obligations that Seller has with the Payment Processor. In the event Seller fails to pay the Fees in connection with a transaction, Company shall invoice the Seller for the unpaid Fees and interest accrued as of the Listing date at a rate of five percent (5%) per annum. Seller shall pay within five (5) days of the date of the invoice.
8.8.Conduct of Sale.
8.1.Seller’s Obligations.Seller agrees to abide by the Seller’s obligations including but not limited to the following obligations (“Seller’s Obligations”):
8.1.1.With respect to the Auction Listings, Seller acknowledges that it is prohibited from engaging in off-line transactions with any potential buyers that viewed and/or bid on the Auction Listing, where such off-line transactions result in Company not receiving Fees pursuant to this Agreement. In addition, Seller acknowledges that it will not engage in any behavior with any potential buyers where such behavior is intended to deprive Company of certain of its Fees (e.g., Final Value Fees), in whole or in part, hereunder including, without limitation, agreeing to sell a Product for a price that is different from what is reported on the Website.
8.1.2.Seller acknowledges that Company makes no warranties or promises about any buyer, any buyer’s identity, credibility or ability to complete the transaction or fitness for doing business. Seller is solely responsible for doing its own due diligence relating to the buyer including, without limitation, performing a background search.
8.1.3.Seller is solely responsible for the timely delivery of the Product sold.
8.1.4.Seller is solely responsible for accepting and processing returns, refunds and adjustments in accordance with the Seller’s return policies articulated in the Listing. Seller acknowledges that Seller shall not be entitled to receive a refund of any applicable Fees already paid in connection with the Product that is the subject of any Listing for which a return, refund and/or adjustment has been issued by the Seller.
8.1.5.Upon request by the buyer or Company, Seller shall provide documentation for the Product, including the proof of title and bills of sale, and other evidence of Seller’s title and ownership in the Product.
8.1.6.Seller shall maintain insurance against loss and/or damages to the Product. Seller assumes responsibility for all repairs and/or cleaning of the Product until the Product is sold.
8.1.7.Seller shall comply with and be responsible for all costs to comply with any and all applicable state and federal laws.
8.1.8.Seller is responsible for determining whether Seller Taxes apply to the transactions contemplated and effectuated through the Listings and to collect, report, and remit the correct Seller Taxes to the appropriate tax authority. Company is not obligated to make this determination and is not responsible to collect, report or remit any sales, use or similar taxes arising from any transaction conducted through the Website. "Seller Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of Products by Seller on or through the Website, or otherwise in connection with any action, inaction or omission of Seller or any of its affiliates, or any of the employees, agents, contractors or representatives of the Seller or its affiliate.
8.1.9.Seller agrees to not attempt to sell any Product on the Website that is illegal and/or violates state and/or federal laws. In addition, Seller further agrees to sell only those Products that the Seller owns. Seller shall not utilize the Website for any illegal purpose including, without limitation, to launder money.
8.2.Company’s Role.Seller acknowledges that Company is solely operating a forum for buyers and sellers to negotiate and complete transactions. Company is not involved in the actual transaction between a seller and a buyer and is not acting as an agent for either of them. By allowing the Seller to post Listings on the Website, Company does not guarantee that anyone will bid or want to buy the Product. Seller shall structure the transaction in such a way that Company shall never take title to the Product, unless otherwise agreed by the Company in writing, in its discretion. Company shall not be responsible for any buyer’s failure to consummate a sale through the Website. Company shall not be responsible if a buyer fails to pay for the Product or fails to fulfill the terms and conditions of the transaction. As further set forth in Terms and Conditions for the Website, Company shall not be responsible for resolving any disputes between the sellers and the buyers. Without limiting the Release set forth in the Terms and Conditions of the Website, Seller agrees to release Company and its respective shareholders, directors, officers, members, agents, employees, attorneys, affiliates and assigns from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
8.3.Participation of T&R Electric Supply, Inc., Colman Transportation, Inc., and Colman Logistics, Inc.. Seller acknowledges that Company has common ownership with and/or is otherwise related to T&R Electric Supply, Inc. (“T&R Electric”), Colman Transportation, Inc. (“Colman”), and Colman Logistics, Inc. (“Colman Logistics”), all of whom may be members of the Website and/or buyer or seller of Products on the Website. T&R Electric specializes in rewinding and reconditioning power and distribution transformers and selling the same. Company will operate as an open marketplace for the buying and selling of transformers and surplus electrical equipment for purposes including but not limited to direct sales, reselling, brokered sales, surplus inventory and scrap/salvage operations. Colman provides transportation services and is one of the shipping options offered to Website users. Colman Logistics is a brokerage company that is used to hire other companies’ trucks to haul freight. Seller consents to T&R Electric, Colman and Colman Logistics being users and members of the Site and further acknowledge and agree that (a) such use and membership does not conflict and/or contradict with any representations of Company; and (b) Company is not a party to any Auction Listings or Classified Listings or any of the resulting transactions. As such, Seller further acknowledges and agrees that Company shall not in any way be liable for the acts or omissions of T & R Electric, Colman and/or Colman Logistics and T & R Electric, Colman and/or Colman Logistics shall not in any way be liable for the acts or omission of Company.
9.1.Term.The term of this Agreement shall be effective as of the date of Seller’s execution of this Agreement and shall continue until either Party terminates this Agreement as set forth herein
9.2.1.Company’s Right to Terminate. Company, in its sole discretion, may terminate this Agreement immediately without notice for any or no cause. Upon termination, Company has the right to immediately cancel, remove and/or delete all Listings of the Seller which are then being displayed on the Website including, without limitation, any open Auction Listings. Seller shall pay whatever Fees were incurred prior to the effective date of the termination. If termination is for Cause, Company shall not be required to refund Seller any Fees already paid. If termination is not for Cause, Company shall endeavor to refund Seller’s Listing Fees and any Seller’s Re-Listing Fees already paid as they pertain to those open Auction Listings that were cancelled removed and/or deleted as a result of termination or only for those Classified Listings that had not expired on the effective date of the termination. “Cause” for the purpose of this Agreement is defined as: (1) breach of this Agreement by the Seller and/or any other agreements relating to the Website including, without limitation, the Terms and Conditions; (2) fraud, misappropriation or any other material violation of law by the Seller during the term of this Agreement; (3) Seller’s failure to pay the Fees accrued; and/or (4) any act of negligence, recklessness or intentional misconduct by the Seller.
9.2.2.Seller’s Right to Terminate.Seller may terminate this Agreement at will, for any or no reason, and with at least ten (10) days’ advance notice to the Company so long as Seller has no open Listings or any outstanding Fees to be paid to Company. In the event of termination of this Agreement, Seller shall not be entitled to a refund of any Fees already paid. In addition, Seller shall remain liable for paying any Fees that are already due.
10.1.Seller’s Ratings. By entering into a transaction with a specific buyer, Seller agrees to make himself subject and susceptible to the buyer providing a rating for the Seller based on a five (5) star rating system, with one (1) star being the poorest rating and a five (5) star being the best rating. Any such rating provided by a specific buyer may be public and viewed by other users and/or members of the Website.
10.2.Buyer’s Rating. If Seller has entered into a transaction with a specific buyer, Seller may provide a rating for the buyer based on a five (5) star rating system, with one (1) star being the poorest rating and a five (5) star being the best rating. Any such rating provided by a Seller may be public and viewed by other users and/or members of the Website. Seller agrees to provide a truthful and accurate rating of the buyer and to not make any defamatory statements in providing such feedback on the buyer.
10.3.Seller acknowledges that it shall not: (a) trade reviews or positive ratings with other businesses; (b) accept compensation, in the form of monetary or non-monetary compensation, for providing or removing a certain rating; or (c) rate a buyer unless Seller has engaged in business with that buyer through the Website.
11.Representations; Warranties; Covenants.
11.1.Representations; Warranties; Covenants.Seller hereby makes the following material representations, warranties and covenants, upon which Company may and does rely. These representations, warranties and covenants apply to all of the Seller’s Listings and must continue to be true, correct and effective so long as the Agreement is in effect.
11.1.1.Seller has the full right and authority to enter into this Agreement and furnish the rights being granted as required hereunder;
11.1.2.The Listings provide an accurate and complete description of the Product;
11.1.3.Each Product is subject to a separate Listing;
11.1.4.The Listing only includes images, descriptions, text, pictures and other content that relates to the Product which is the subject of that Listing;
11.1.5.All Products listed for sale within the Listing are products belonging to the Seller or for which the Seller has otherwise obtained all rights and licenses necessary for it to rightfully list and sell such Product;
11.1.6.All contents of the Listing, including without limitation the text, images or any intellectual property used within the Listing, are original contents belonging to the Seller or for which the Seller otherwise has obtained all rights and licenses necessary to rightfully include, distribute, publish, copy and grant the within license to, such content;
11.1.7.Seller has the full authority to sell said Products in accordance with the terms and conditions of this Agreement and will give the buyer full marketable title to said Products.
11.1.8.The Product is free and clear of all liens, encumbrances, adverse claims or concealed physical defects. If any are found or known to the Seller, the Seller shall immediately take down the Listing or post a disclaimer to make it obvious to the buyer.
11.1.9.All materials furnished or used by the Seller, including without limitation Products listed for sale within the Listings, contents of the Listings, or images used within the Listings, do not violate the civil or proprietary or other rights of others;
11.1.10.The use, reproduction, distribution or transmission of the Listings or any other materials provided by Seller, will not violate any criminal laws or infringe on any rights, title or interests of any third party, including but not limited to, copyright and other intellectual property rights;
11.1.11.Seller is allowed to legally sell the Product that is the subject of the Listing;
11.1.12.Seller will abide by and honor its policies and terms relating to the sale of the Product as conveyed to potential buyers in a Listing;
11.1.13.This Agreement does not conflict with any other contract, agreement or obligation of the Seller and the performance of Seller’s obligations hereunder will not violate or constitute a breach of any other contract, agreement or obligation of the Seller;
11.1.14.Seller will not engage in any unfair, misleading and/or deceptive business practices;
11.1.15.Seller will not encumber the Website or otherwise materially impair or interfere with Company’s rights hereunder or authorize any party to do so;
11.1.16.Seller will not enter into any other agreement which conflicts with this Agreement;
11.1.17.Seller will not privately or publicly disparage either Company or any person affiliated therewith;
11.1.18.Seller will not alter a Product’s price after a sale for the purpose of avoiding any fees owed to the Company pursuant to this Agreement;
11.1.19.Seller will not sell any Products that are counterfeit, illegal and/or stolen;
11.1.20.Any matter furnished by Seller will not infringe upon or violate any rights whatsoever of any person or entity nor the trademark, tradename, copyright or other intellectual property of any such third parties; and
11.1.21.Seller will not use the Website for criminal purposes such as, but without limitation, money laundering, nor will Seller engage in any transactions with any buyer it knows to be engaging in criminal conduct.
12.Indemnification. In addition to the Indemnification obligations outlined in the Terms and Conditions of the Website and without limiting or impairing them in any manner, the Seller shall further indemnify, defend and hold harmless the Company and its respective shareholders, directors, officers, members, agents, employees, attorneys, affiliates and assigns (collectively the “Company Parties”) from and against any liability, damage, loss or expense (including actual attorney’s fees and expenses of litigation incurred by or imposed upon the party arising from any claim against them, directly or indirectly) related directly or indirectly to any of the Seller’s acts or omissions. This shall include, without limitation: (a) Seller’s infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights including use of any intellectual property in a Listing or on a Product; (b) any failure to comply with any applicable laws or regulations; (c) any false, misleading, incorrect, inaccurate and/or incomplete statement provided to Company or to any buyer, including any false or incorrect representations or warranties, inaccuracies in the description of the Product and/or condition of the Product; (d) any act of negligence, recklessness or intentional misconduct by the Seller; (e) any breach of the terms and conditions contained in the Agreement, including without limitation, the Seller’s representations and warranties made herein; (f) any damages caused in whole or in part by an act or omission of the Seller; (g) any damages caused by advertising and/or consumer-related claims; and (h) any products liability and/or other claim relating to Products provided by Seller.
13.Injunctive Relief. Seller agrees that, in the event of any breach of any provision hereof by the Seller, Company will not have an adequate remedy in money or damages. Seller therefore agrees that in such event, Company shall be entitled to obtain injunctive relief against such breach, without the necessity of posting a bond even if otherwise normally required. Such injunctive relief will in no way limit Company’s right to obtain other remedies available under applicable law. Moreover, the Parties acknowledge and agree that the Company shall be entitled to bring an action for such injunctive relief anywhere in the world, and the jurisdiction and venue provisions of this Agreement shall not be deemed to prohibit the same. Notwithstanding the foregoing, Seller acknowledges and agrees that in the event of Company’s breach of any of the provisions herein, Seller will have an adequate remedy in money or damages. As such, Seller agrees that it is not entitled to injunctive relief or specific performance including, without limitation, obtaining a court order to shut down the Website where Company breaches this Agreement.
14.Waiver of Jury Trial. IT IS HEREBY STIPULATED BY THE PARTIES HERETO THAT TRIAL BY JURY IS HEREBY SPECIFICALLY WAIVED AS TO ALL CLAIMS OR DEFENSES BETWEEN THE PARTIES.
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I HEREBY ACKNOWLEDGE HAVING READ THE AGREEMENT CAREFULLY, THAT I UNDERSTAND ALL OF ITS TERMS, THAT ALL AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO IT VOLUNTARILY AND NOT IN RELIANCE UPON ANY PROMISES OR REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE AGREEMENT ITSELF. I HAVE HAD THE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH PRIVATE INDEPENDENT LEGAL COUNSEL OF MY CHOOSING, IF I WISHED TO DO SO, AND I BELIEVE AFTER READING THE AGREEMENT THOROUGHLY THAT IT IS IN MY BEST INTEREST TO ENTER INTO IT. I ACKNOWLEDGE HAVING THOROUGHLY READ THIS AGREEMENT, ASKED ANY QUESTIONS I DESIRED AND CLARIFIED THE MEANING OF ALL TERMS, IF ANY, THE MEANING OF WHICH I AM NOT SURE. FURTHER, I HAVE NOT ENTERED THIS AGREEMENT UNDER ANY COERCION WHATSOEVER, BUT AM DOING SO AS MY VOLUNTARY ACT AND DEED. I HEREBY MAKE THE MATERIAL REPRESENTATION UPON WHICH I INTEND THE COMPANY TO REASONABLY RELY THAT I AM EIGHTEEN (18) YEARS OF AGE OR OLDER.