These Participation Terms (these “Terms”) govern auctions, marketing, transaction, and other similar events (each, an “Event”) conducted by Apex Commercial Exchange, LLC and its affiliates, subsidiaries, and designated representatives (together, the “Company”, “We”, or “Our”) on behalf of a seller (each, a “Seller”) of real property or, if applicable, secured note(s) (each, a “Property”, and collectively, “Properties”). As used in these Terms, each prospective buyer who participates in any Event is a “Participant” and the terms “the Company”, “Seller” and “Participant” also refer to the respective principals, agents, and affiliates of each. “Winning Buyer” is the Participant that (a) submits the highest net bid in an auction Event and is acknowledged by the Company as the winning bidder, or (b) submits any offer during any Event that is accepted by Seller. As used in these Terms, each bid or offer submitted in any Event is an “Offer”. “You” and “Your” means, as applicable, the Participant and/or Winning Buyer acting under these Terms.
The Company conducts Events solely on behalf of Seller and is not acting as an agent for any Participant in any capacity. By registering for an Event or submitting an Offer at any website (“Website”) owned by the Company, Participant acknowledges having read and accepted these Terms. By submitting an Offer on a Property, Participant is deemed to have accepted any Supplemental Terms and conditions posted on the Property’s details page on the Website (“Property Page”) at the time the Offer was submitted, and such terms and conditions govern and control over these Terms to the extent of any conflict.
These Terms are in addition to the Website’s general Terms of Use, Privacy Policy, and any specific agreement entered into between Company and the Participant/Winning Buyer (collectively, the “Supplemental Terms”). By submitting a bid on any property, You further agree to any Supplemental Terms and conditions included at the time of the bid and such Supplemental Terms shall be deemed to be part of these Terms. Together, these govern all use of the Websites. By using the Websites, the Participant agrees to comply with and be bound by these Terms and all applicable Supplemental Terms.
We reserve the right to amend these Terms and any Supplemental Terms at any time. Such changes may be communicated via the Websites. Continued use of the Websites following any update constitutes acceptance of the revised Terms. In the event that You do not agree with these Terms or any Supplemental Terms, Your sole recourse is to cease use of Our Services.
(1) ELIGIBILITY, ACCOUNT CREATION, AND REGISTRATION PROCESS
Our Services are only available to individuals and entities that are registered on our Website and have the authority and capacity to form legally binding contracts. If You are an individual, by using our Services, You represent and warrant that You (i) are over the age of eighteen (18), and (ii) have the authority and capacity to form legally binding contracts. If You are an entity, by using Our Services, the individual placing the bid on such entity’s behalf represents and warrants that (i) they are authorized to place such bid, (ii) they have the authority to execute and deliver the Purchase Documents (as defined herein), and (iii) such Purchase Documents will be binding upon You.
Participants must have an account on Our Website in order to participate in any Event. To register, You must provide your: Full name (or entity name, as applicable); Age verification (18 years or older) and confirmation that You are a natural person; certain billing and financial information; contact telephone number; active email address; and primary business or residential address. We do not currently charge a registration fee, though we reserve the right to implement fees at any time without prior notice.
Some Events may also require Event-level registration and, as part of that registration process, Participants may be required to place a deposit to secure compliance with these Terms (“Performance Deposit”). The amount of the Performance Deposit (if any) and acceptable deposit methods will be shown during registration.
Winning Buyer’s Performance Deposit (if any) will be released after confirmation that the Purchase Documents (defined below) have been fully signed, and the Earnest Money Deposit (defined below) has been timely received. All Performance Deposits from Participants other than Winning Buyer will be released after the Event.
At any time in our sole and absolute discretion, or at the request of a Seller, We may modify, waive, or impose additional participation requirements for certain Properties or Participants. We reserve the right to accept or reject a registration, waive registration requirements, require additional registration information, request additional documentation, or terminate any registration of any party.
(2) BIDDING CONDUCT
By using Our Services, You agree to act fairly, honestly, and in good faith. If We determine in Our sole discretion that You are using Our Services for Your own benefit, as a marketing platform, in bad faith, or in such a way that would violate any applicable rules, laws, or regulations, such use will constitute a Breach (as defined herein) and We may revoke Your registration permanently. By using Our Services, You agree to refrain from submitting any harmful, misleading, fraudulent, or otherwise unlawful materials.
Seller may place an Offer on its own Property (a “Seller Offer”) directly or through a broker or other authorized person unless making a Seller Offer is prohibited by applicable law. No Seller Offer will be disclosed to Participants/Winning Buyers unless required by applicable law, in which case such Seller Offer shall be disclosed in accordance with such law. Seller Offers may not exceed the Reserve Price (as defined herein).
Notwithstanding anything contained in these Terms, each of the Company and Seller (in their respective sole and absolute discretion) reserves the right to accept any bid, regardless of whether or not such bid is the highest bid for the applicable Property.
(3) DUE DILIGENCE
Purchase Documents. Before submitting an Offer, You are responsible for reviewing the purchase and sale agreement, any applicable addenda, Seller’s disclosure documentation, and all other transaction documents (including any linked webpages containing additional information, collectively, “Purchase Documents”), which can be accessed on the Property Page. All Offers must be based on the posted Purchase Documents.
Note, the Purchase Documents are non-negotiable and the Company and Seller each reserve the right to make changes to the Purchase Documents prior to the end of the Event.
Due Diligence. Property Pages may include documents and statements relating to the condition of the Property (e.g., any existing encumbrances or the conditions of the Property). You are responsible for reviewing the property information and conducting Your own due diligence and inspections of each Property, including, without limitation, encumbrances, environmental matters, legal and economic matters, physical condition and attributes, and all other aspects. You must coordinate any such inspection with Seller or Seller’s broker. However, you acknowledge that, in some instances, Seller may be unable to provide physical access to a Property.
Participants must submit Offers at their own risk regardless of whether Participant has physically inspected the Property. All Offers should be based solely on Participant’s independent due diligence and any information contained in the Purchase Documents. Property information has been gathered from a variety of sources and has not been independently verified by the Company in any manner. WE MAKE NO REPRESENTATIONS WAHTSOEVER ABOUT THE ACCURACY OR COMPLETENESS OF ANY PROPERTY INFORMATION OR ANY PROPERTY PAGE. Participants are encouraged to consult with a licensed real estate broker, contractor, attorney, financial advisor, tax advisor, and other relevant professionals with respect to any Property.
For the avoidance of doubt, each Property listed for sale through Our Services is sold as-is and neither the Company nor any Seller makes any representations or warranties with respect to any repairs, improvements, conditions, or otherwise with respect to a Property. You are responsible for (and assume the risk of) any claim, loss, injury, liability, damage, or expense, directly or indirectly arising out of or related to Your inspection of, visit to, or other investigation of the Property (whether in-person or otherwise). Further, You agree to indemnify, defend, and hold harmless Seller and the Company from any such liability, damages and costs, and to maintain all applicable policies of insurance insuring over such liability, damages, and costs. We do not assume any liability or responsibility for any inspections or the outcomes thereof.
Participant acknowledges and agrees that Participant will make an Offer on the Property pursuant to Participant’s independent examination, study, inspection, and knowledge of the Property, and Participant is relying upon his, her or its own determination of the value and condition of the Property and not on any information provided or to be provided by the Company or Seller.
Participant is relying solely upon his, her or its own inspections, investigations, research, and analyses in entering into the Purchase Documents and is not relying in any way upon any representations or warranties, statements, plans, specifications, cost estimates, studies, reports, descriptions, guidelines, or other information or material furnished by Seller, the Company, or any of their respective Representatives to Participant or his, her or its representatives, whether oral or written, express or implied, or of any nature whatsoever regarding any such matters.
(4) BUYING
Irrevocability of Offers. All Offers submitted during any Event are irrevocable, final upon submission, and constitute a legally binding commitment to purchase such Property in accordance with these Terms in the event that such Offer is chosen by Seller. By placing an Offer on any Property, You are confirming Your intention to purchase such Property and Your ability to pay the full amount of the purchase price of such Property, including the Earnest Money Deposit (as defined herein), in the manner set forth in the Purchase Documents and within the time frames provided herein or otherwise requested by the Company and/or Seller.
Contact. By placing an Offer, each Participant agrees to be available to be contacted by the Company during and after the conclusion of an Event. Unless the Property Page, Company, or Seller provide different time frames, a Participant must (i) respond to any attempt by the Company to contact such Participant during an/or after an Event for which Participant has placed an Offer within thirty (30) minutes of the Company’s first attempt; (ii) to the extent Participant receives Purchase Documents from the Company, execute and deliver such documents within two (2) hours after such Participant receives a copy for execution; and (iii) pay the amount of the Earnest Money Deposit to the escrow agent in the manner and time frame set forth in the Purchase Documents.
Signing Purchase Documents. Time is of the essence. The final Purchase Documents will be emailed to Winning Buyer for electronic signature. Within two (2) hours of the Purchase Documents being sent to Winning Buyer, Winning Buyer must sign the Purchase Documents (unless a longer timeframe is specified in writing by the Company).
If Winning Buyer fails to timely sign the Purchase Documents, (a) the Company may declare Winning Buyer to be in default of these Terms, (b) Seller may reject Winning Buyer’s Offer, and/or (c) Seller may declare Winning Buyer to be in default of the Purchase Documents and pursue claims against Winning Buyer for specific performance, payment of the Earnest Money Deposit, and all other remedies available at law; Seller is an express, intended, third party beneficiary of the foregoing clauses (b) and (c). A PURCHASE FAILURE MAY RESULT IN A CLAIM FOR LIQUIDATED DAMAGES AS SET FORTH HEREIN. Further, nothing contained herein precludes Seller and/or the Company from rejecting an Offer either prior to or after distribution of Purchase Documents unless and until Seller accepts the Offer, nor does anything contained herein require Seller and/or the Company to distribute a copy of the Purchase Documents to any Participant.
Once You have executed and delivered the Purchase Documents, the Purchase Documents will be sent to Seller and/or the Company for consideration. You further understand and agrees that (i) no Seller is under any obligation to enter into Purchase Documents with any Participant, regardless of whether a Participant submits the highest Offer for a Property, (ii) each Seller and/or the Company reserves the right, exercisable in such Seller’s and/or the Company’s (as applicable) sole and absolute discretion, to reject or accept an Offer for any reason (regardless of whether such Offer is the highest Offer), and (iii) Your execution of the Purchase Document only entitles Your Offer to be considered by Seller, and does not require Seller to sell the relevant Property.
Payment of Earnest Money Deposit. The Purchase Documents for each Property require Winning Buyer to pay a deposit to the escrow/closing agent (“Earnest Money Deposit”). The amount of the Earnest Money Deposit is specified in the Purchase Documents or the Property Page for each Property. Unless otherwise specified in the Purchase Documents, the Earnest Money Deposit must be received no later than 5:00 PM EST on the first business day after the Effective Date of the Purchase Documents. If the Earnest Money Deposit is not timely received, the Company or Seller may declare Winning Buyer to be in default of these Terms and Seller may reject Winning Buyer’s Offer.
In the event that Seller fails to consummate the transaction through no fault of Participant/Winning Buyer, the Earnest Money Deposit should be returned promptly by the escrow agent or Seller (to the extent the Earnest Money Deposit was released to Seller).
Proof of Funds and Additional Information. The Company or Seller may require Participants to register with a payment service provider, provide proof of readily available funds in the amount of Participants maximum Offer, or additional information at any time prior to registration approval or submission/acceptance of an Offer. If the Company or Seller requires Winning Buyer to register with a payment service provider, provide proof of funds or additional information and such proof of funds or additional information is not timely received, the Company or Seller may reject Winning Buyer’s Offer.
Entity Buyers. Entity buyers must be duly formed and in good standing as of the start of an Event. Winning Buyers wanting to take title in the name of an entity may be required to provide entity formation documents and resolutions authorizing the purchase within the timeframe specified by the Company, which may be before or after the Event, in the Company’s sole discretion. Seller or the escrow/closing agent may require additional documentation prior to closing.
Exchange Fee. If the Property Page for a Property states that a buyer’s premium or exchange fee (a “Exchange Fee”) applies to the sale, then Winning Buyer will be required to pay an Exchange Fee in addition to Winning Buyer’s Offer amount at closing. Unless otherwise specified for a particular Property, a Exchange Fee will be added to Winning Buyer’s Offer amount to establish the total purchase price payable by Winning Buyer. If the Property is anything other than a one-to-four-unit residential property and Participant purchases it from the Seller outside of the Company’s platform within three hundred and sixty-five (365) days after the date Participant acknowledges these Terms, Participant agrees to be responsible to the Company for full payment of a Exchange Fee that would have been payable if Participant had purchased the Property through the Company’s platform.
Note Sales/Indirect Property Sales. Participant must be an “accredited investor” within the meaning of Rule 501(a) of Regulation D of the Securities Act of 1933 (“Accredited Investor”), as amended, to participate in the sale of any Property that consists in whole or part of a promissory note or other note, or any interest in any entity (“Indirect Property”). By participating in any Event for an Indirect Property, or accessing any information relating thereto, Participant represents and warrants that (a) Participant is an Accredited Investor, and (b) Participant is not relying on (and will not seek) the protections afforded by any securities law.
(5) AUCTION EVENTS
Reserve Price. Except for Properties noted “Absolute Auction” or “Minimum Bid Auction”, all Properties in auction Events have a minimum selling price established by Seller (the “Reserve Price”). The starting bid is not the Reserve Price. Except where prohibited by law, the Company may counter bid on behalf of Seller on any Property up to the amount of the Reserve Price, and no such bid will result in a sale of the Property. If the Reserve Price is not met, Seller is under no obligation to sell the Property; however, Seller may accept a bid that is below the Reserve Price in Seller’s sole and absolute discretion.
Absolute Auction Events. Notwithstanding the foregoing, and only where permitted by applicable law, the Company and/or Seller may elect for certain Properties to be sold without a Reserve Price. Properties to be auctioned without a Reserve Price or minimum bid will be listed in an “Absolute Auction”. The Company or Seller may extend the time for bidding in any auction Event in such party’s sole and absolute discretion.
Subject to Confirmation. Seller may designate certain Offers as “Subject To Confirmation” in its sole and absolute discretion, in which case Winning Buyer’s purchase is subject to, and contingent upon, Seller or a third party approving the purchase in its sole and absolute discretion within the time period set forth in the Purchase Documents. Winning Buyer will receive a refund of monies deposited if Seller or the third party does not approve the purchase.
(6) RESIDENTIAL EVENT TERMS AND CONDITIONS
Without limiting any other provisions of these Terms or any additional disclaimers which may be provided on the relevant Property Page, the following Supplemental Terms and conditions shall apply solely with respect to any Property described as a residential Property on the relevant Property Page (each, a “Residential Property”).
Except where prohibited by applicable law, and solely with respect to a Residential Property, proxy Offers may be placed on behalf of a Participant by an independent and duly licensed real estate agent or broker engaged by such Participant.
You acknowledge and agree that, unless required by applicable law, each Residential Property listed for sale is listed without any express or implied guarantees, representations, warranties, promises, covenants, or agreements of any kind from any party. With respect to any Residential Property listed for sale, each of the Company and Sellers specifically disclaim any representations or warranties with respect to any of the following: (i) the suitability of the Residential Property for any and all purposes, activities, and uses; (ii) the habitability, merchantability, marketability, profitability, or fitness for a particular purpose of the Residential Property; (iii) the Residential Property’s value, nature, quality, or condition, and the potential for any income to be derived from the Residential Property; (iv) any matter affecting the stability or integrity of the land or any buildings, structures, or improvements situated on the Residential Property; (v) the Residential Property’s compliance with any laws, rules, codes, or ordinances applicable thereto (including, without limitation, any zoning, land use, environmental, health or building laws, rules, codes, or ordinances); (vi) the quality and state of repair of the Residential Property or the quality of any materials used on or incorporated into the Residential Property; (vii) the conformity of the improvements to any plans or specifications for the Residential Property that may be provided to You; (viii) whether the Residential Property is located in any hazard zones or special studies zones; (ix) whether the Residential Property is occupied other than by a tenant pursuant to a valid written lease; and/or (x) any other matter with respect to the Residential Property. You understand and agree that, by placing an Offer on a Residential Property, You are confirming Your intention to purchase such Residential Property in its current state, including with respect to all defects (whether patent or latent).
(7) BROKER/AGENT PARTICIPATION
We encourage real estate broker and agent participation. A cooperating broker commission may be offered for some Properties. Please see the broker registration page for eligibility requirements and additional information regarding broker/agent participation, and the applicable Property Page for cooperating broker commissions related to a specific Property.
Certain Events may offer a commission for cooperating brokers, so long as (i) the cooperating broker has registered on the Website as a broker, (ii) the cooperating broker is identified by the Participant with whom or which it is associated, and (iii) the Participant represented by such cooperating broker actually purchases the Property if Owner accepts the Offer from such Participant in accordance with the terms hereof. Note, a cooperating broker may only be entitled to a commission if such broker: (i) agrees to these Terms and all other terms and conditions posted on the applicable Property Page(s); (ii) the broker is not a family member or an affiliate of the Bidder such broker represents; (iii) the broker is properly licensed in the state(s) in which the applicable Property or Properties is or are located; (iv) the broker identifies the Participant such broker is representing prior to the start of the Event (the timing of which shall be determined in the Company’s sole and absolute discretion); and (v) the broker is identified by the Participant at the time that such Participant registers on the Website.
Our Website is used by real estate brokers, auctioneers, and auction firms to host the bidding on, and transfer of, Properties during Events and to list Properties for sale. We do not function as a Seller, real estate broker, auctioneer, auction firm, or agent of any of the foregoing.
(8) GENERAL INFORMATION
Any and all logos, images, and other marks displayed on Our Website are the sole property of the Company and may not be transferred to, or used or displayed by, any person without the prior express written permission of the Company. Further, the Company and Sellers may issue press releases and/or public communications regarding an Event, any property offers or sold during an Event, and the Participants involved in an Event.
Seller and the Company reserve the right to deny, limit, or impose conditions on submitting Offers or access to the Website or any Event at any time, for any reason, including, without limitation, Participant’s solvency, credit history, transaction history, and Performance Deposit amounts. The Company may postpone or cancel an Event, rearrange the order or sequence of the Properties in the Event, modify these Terms by posting notice of modification on the Property Page, remove any Property from the Event, or reject any or all Offers.
The Company may place Offers on behalf of Participants in accordance with their instructions. the Company is not responsible for failing to place any such Offer or for any errors that may occur during the placement of any such Offer.
As between Seller and Participant, no obligation to sell shall be binding on Seller unless and until the Purchase Documents have been signed and delivered by Seller and the Earnest Money Deposit has been received as required hereunder. After the Purchase Documents have been fully signed, the Purchase Documents shall govern the relationship between Winning Buyer and Seller.
Use of Our Website and participation in any Event may require that Participant register and disclose certain Personally Identifiable Information (“PII”), including financial information, credit card data, and other payment information, through our Website. We will only store Participants’ PII to the extent necessary for participation in the Event(s). Once such Event(s) has/have concluded and the Winning Buyer has been selected, the Company will only retain sufficient PII from each Winning Buyer as necessary to associate each Winning Buyer with their purchase.
(9) DISCLAIMERS; CANCELLATION & LIQUIDATED DAMAGES; AND INDEMNIFICATION
THE COMPANY AND SELLER MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY, OR THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF ANY DOCUMENT PROVIDED BY THE COMPANY AND/OR SELLER. EACH PARTICIPANT HEREBY COVENANTS NOT TO MAKE OR BRING, AND FOREVER RELEASES SELLER, COMPANY, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS, AND AGENTS (COLLECTIVELY, “REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT ANY SUCH PARTICIPANT MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE COMPANY AND/OR SELLER OR ANY OF THEIR REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS, OR OTHER CONDITIONS AFFECTING ANY PROPERTY, THE DOCUMENTS USED IN EVALUATING OR ACQUIRING ANY PROPERTY, OR THE CONDUCTING OF ANY EVENT, INCLUDING AS A RESULT OF THE NEGLIGENCE OF THE COMPANY, SELLER, OR ANY OF THEIR REPRESENTATIVES. THIS RELEASE INCLUDES CLAIMS OF WHICH PARTICIPANT IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO EXIST IN PARTICIPANT’S FAVOR WHICH, IF KNOWN BY PARTICIPANT, WOULD MATERIALLY AFFECT PARTICIPANT’S RELEASE OF THE COMPANY AND SELLER. EACH PARTICIPANT SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND OTHER SUBSTANTIALLY SIMILAR APPLICABLE STATUTES) WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
CANCELLATION; LIQUIDATED DAMAGES. IF WINNING BUYER BREACHES THESE TERMS, WINNING BUYER’S OFFER MAY BE REJECTED BY THE COMPANY OR SELLER, THE PROPERTY MAY BE IMMEDIATELY SOLD TO ANOTHER PARTICIPANT OR PLACED IN ANOTHER EVENT, AND WINNING BUYER WILL BE RESPONSIBLE FOR PAYING THE COMPANY LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE PARTICIPANT’S/WINNING BUYER’S OFFER AMOUNT. IF WINNING BUYER REGISTERED WITH A PAYMENT SERVICE PROVIDER, THE COMPANY IS AUTHORIZED TO CHARGE VIA THE PAYMENT SERVICE PROVIDER THE AMOUNT OF SUCH LIQUIDATED DAMAGES OWED BY WINNING BUYER. WINNING BUYER ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM WINNING BUYER’S BREACH OF THESE TERMS WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE, AND THAT THE LIQUIDATED DAMAGES AMOUNT SET FORTH HEREIN IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO THE COMPANY AND IS INTENDED AS COMPENSATION AND NOT A PENALTY OR FORFEITURE.
IN THE EVENT THE COMPANY DOES NOT PURSUE THE REMEDIES OUTLINED UNDER THIS SECTION, SELLER SHALL BE A THIRD-PARTY BENEFICIARY AND SELLER MAY PURSUE SUCH REMEDY DIRECTLY. FURTHER, THE COMPANY MAY ASSIGN ITS RIGHTS UNDER THIS SECTION TO SELLER AT ITS SOLE DISCRETION.
In addition to any other indemnification obligations described herein, in the event that any Participant/Winning Buyer breaches or fails to comply with any of the representations, warranties, covenants or agreements set forth in these Terms or in any Supplemental Terms (each, a “Breach”), each such Participant/Winning Buyer hereby covenants and agrees to indemnify, defend, and hold harmless the Company, each Seller, each broker, each auctioneer and/or their respective Representatives (collectively, the “Indemnitees”) for, from, and against any losses of any nature whatsoever incurred by such Indemnitees (including, without limitation, any attorneys’ fees and costs) (“Losses”), with respect to each and every such Breach. Further, each Participant/Winning Buyer agrees to indemnify, defend, and hold harmless each and every Indemnitee for any Losses incurred by such Indemnitee with respect to any claim brought by any such Participant/Winning Buyer and any of such Participant’s/Winning Buyer’s agents, brokers, or representatives which arises from these Terms, the Supplemental Terms, the Purchase Documents and/or the conduct of any Event. In the event that any claims are brought by any Indemnitee against any Participant/Winning Buyer, which arise from these Terms, the Supplemental Terms, the Purchase Documents and/or the conduct of any Event, each such Participant/Winning Buyer agrees to reimburse the Indemnitees for any Losses incurred by such Indemnitees with respect to any such claims.
(10) ADDITIONAL PARTICIPANT REPRESENTATIONS AND WARRANTIES
Any Participant placing an Offer on any Property hereby represents and warrants that Participant (i) is a sophisticated purchaser with knowledge and experience in financial and business matters, particularly with respect to matters relating to the financing, purchase/sale, origination, or ownership of real property, (ii) can evaluate the merits and risks of investment in such Property and can bear the risks of purchasing such Property, whether economic or otherwise, (iii) has reviewed the Purchase Documents and property information and will independently make his, her or its own investment analysis of such Property and decision about whether to submit an Offer for such Property based on Participant’s own findings and conclusions, with such other due diligence and investigations as Participant may choose to perform (subject to the terms hereof), (iv) if such Participant’s Offer is chosen by Seller, is able to execute and deliver the Purchase Documents, deliver the Earnest Money Deposit, and provide any additional requested or required information within the time frames requested by the Company and/or Seller, or otherwise provided herein, and (v) will be available to be contacted by the Company during and after the conclusion of any Event for which Participant placed one or more Offers.
(11) BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
These Terms and the conduct of each Event shall be governed by the laws of Delaware except in the case of auction Events involving real property located in California. With respect to auction
Events involving real property located in California, these Terms and the conduct of each Event shall be governed by the laws of California.
Each Participant irrevocably agrees: (a) to waive all rights to trial in a court before a judge or jury on any claim, action or dispute with the Company relating in any way to any Property, or Participant’s participation in any auction Event, or the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of this agreement is void or voidable (“Arbitrable Claims”); (b) all such Arbitrable Claims will be determined exclusively by final and binding arbitration in Wilmington, Delaware before one arbitrator; and (c) the arbitrator will not have the authority to consolidate the Arbitrable Claims of other Participants and will not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of Participants in one arbitration proceeding. For the avoidance of doubt, use of Our Services constitutes a waiver of any class action proceedings.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Notwithstanding these rules, however, such proceeding shall be governed by the laws of the State of Delaware. Each party shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Arbitrable Claims. However, nothing in this section shall prevent the Company from enforcing its intellectual property rights and/or remedy unfair competition, misappropriation of trade secrets, unauthorized access, fraud or computer fraud, and/or industrial espionage in court.
Judgment on any arbitration award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be a prevailing party under circumstances where the prevailing party won on some but not all of the Arbitrable Claims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
(12) COMPLIANCE WITH LAWS AND REGULATIONS
Where prohibited by law, solicitations made, or Offers submitted during any event are void. If any sale requires registration or qualification under applicable securities laws, no such sale may be consummated until such applicable requirements are met. Any information on any website, in any brochure, e-mail, or postcard, and any information available regarding the Properties shall not constitute an offer to sell or a solicitation of any offer to buy any of the Properties.
Participant/Winning Buyer and any of his, her or its associated broker(s) are responsible for compliance with all applicable laws and regulations. Offers submitted during an Event are void where such Offers are prohibited by law. In the event that any Event or sale of Property requires registration under any state securities law, such registration must be completed and verified by the applicable Seller in such Seller’s sole and absolute discretion prior to consummating any sale.
By using the Website, Participant/Winning Buyer represents it has knowledge of, and is in compliance with: (1) any applicable anti-bribery, anti-money laundering, or anti-corruption laws or regulations whether of the United States (“U.S.”) or of any other jurisdiction where Bidder/Buyer conducts business or has a legal presence; (2) the export control laws of the U.S. administered by the U.S. government (including, but not limited to, the Departments of Commerce, State, Energy and Agriculture); (3) the economic sanctions laws of the U.S. administered by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and by the Department of State, and in this regard, Bidder/Buyer represents that it is neither 50% or more owned (directly or indirectly) by an individual or entity on OFAC’s List of Specially Designated Nationals and Blocked Persons (“SDN List”), nor owns 50% or more of an entity on the SDN List; (4) the laws governing foreign investment in the U.S. administered by the Committee on Foreign Investment in the U.S. (“CFIUS”), Department of the Treasury, particularly as they apply to real estate transactions; (5) the anti-boycott laws administered by the U.S. Departments of Commerce and Treasury; and (6) all material laws in each jurisdiction where it conducts business or has a legal presence.
(13) LICENSURE
Any brokers or Sellers that add any Property to the Website or sell any such Property/Properties shall indemnify the Indemnitees for all damages and costs directly or indirectly arising out of or related to the advertisement and marketing of such Property/Properties on the Website.
(14) ELECTRONIC SIGNATURE
By clicking the “ACCEPT” button, Recipient acknowledges, accepts and agrees to the terms of this Agreement. Such electronic acceptance shall be binding and enforceable pursuant to Electronic Signatures in Global and National Commerce Act, Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act, and applicable state laws.