TERMS & CONDITIONS
Welcome to the MetroSwap (the "Web Site"), a community trade system utilizing traditional "live" auctions with an Internet bidding service. The services provided by METROSWAP ("MetroSwap") through the Web Site ("Service" or "Services") and the use of the Web Site are governed by these Terms and Conditions (the "Terms and Conditions"). By accessing or using the Services or the Web Site or by registering as a buyer ("Buyer" or "User"), you agree that (1) you have read and familiarized yourself with the Terms and Conditions, (2) you understand the Terms and Conditions, and (3) your use of the Services and the Web Site will be in accordance with the Terms and Conditions. If you do not agree to the Terms and Conditions, you may not access or use the Services or the Web Site. The Terms and Conditions together with any additional terms and conditions specific to a particular auction (incorporated herein by reference) constitute the entire agreement (the "Agreement") between MetroSwap and User regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter. Amendment of Terms and Conditions:
MetroSwap may amend any or all of the Terms and Conditions (including fees and transaction rules) at any time, at MetroSwap's sole discretion, without notice. Any amendment of the Terms and Conditions will be reflected on the Web Site. User is encouraged to periodically review the Terms and Conditions posted on the Web Site. Use of the Services and the Web Site constitutes acceptance of the Terms and Conditions including any amendments thereto. The Terms and Conditions were last revised on March 1, 2005. Role of MetroSwap.
MetroSwap provides the Services and the Web Site solely as a forum or venue in which qualified sellers of real estate and other assets ("Sellers") may offer assets for sale and Buyers may place offers (or bids) to purchase these assets. Although MetroSwap may provide escrow and other ancillary services from time-to-time, MetroSwap is neither a principal interested in the transactions, nor an agent of Buyer. MetroSwap does not make, and should not be construed as having made, any representation or warranty of any kind concerning any of the offered assets or offerings, including without limitation any representation or warranty regarding the quality, safety or legality of the offered assets, or the truth or accuracy of any offerings. Additionally, MetroSwap makes no representation or warranty of any kind as to the ability of either Buyer or Seller to complete a sale in accordance with these Terms and Conditions or otherwise, and in accordance with any additional terms and conditions specific to a particular auction. MetroSwap does not have the power to transfer title to any assets offered by Sellers. MetroSwap retains sole discretion to remove any User who does not comply with the Terms and conditions. However, Buyers are solely responsible for independently verifying the background of those Sellers with whom they enter into, or with whom they prospectively will enter into, a bid transaction. In the event of any dispute regarding any transaction conducted through use of the Services or the Web Site (a "Dispute"), User hereby releases MetroSwap, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys' fees, which User may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. If User is a California resident, User waives California Civil Code §1542 which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Changes to Services and/or Web Site.
User acknowledges and agrees that MetroSwap may change, modify, amend, suspend or discontinue any aspect of the Services or the Web Site, at any time, without notice and without liability to User or to any third party. MetroSwap reserves the right to impose limits on certain features of the Services or the Web Site, at any time, without notice and without liability to User or to any third party. Registration.
The Services and the Web Site are only available to persons with the legal capacity to enter into this Agreement. If you are under the age of 18 and wish to bid for an item on MetroSwap, only your parent or legal guardian may register, place a bid, or purchase the item. MetroSwap may, at its sole and absolute discretion, refuse to accept a person's (or entity's) registration, and may, at any time after accepting registration, refuse to permit a person's (or entity's) continuing use of the Services and the Web Site. Password and Security.
As a User you are solely responsible for maintaining the confidentiality of your User name and User password. Since this information allows access to your account, which includes your credit card numbers, keep it as much to yourself as you would keep any credit card number or PIN. User is obligated to complete those transactions that occur using your User name and User password, whether such transactions are authorized or unauthorized. You agree that you shall immediately notify MetroSwap in writing or by electronic memberservices@metroswap.com of any unauthorized use of your User name or User password. User Information.
User will provide information to MetroSwap during the registration process and to MetroSwap and other Users during the course of the use of the Services and the Web Site (the "User Information"). Additional information beyond the basic registration information may be requested as a qualification requirement to bid on certain asset sales, User agrees to provide such information or it may not be allowed to bid on certain assets. User agrees and warrants: (1) that all User Information is accurate and complete at the time of registration, and (2) that User information will be continuously updated such that the User Information shall at all times be current, accurate, and complete. User grants to MetroSwap a non-exclusive, worldwide, perpetual, royalty-free and irrevocable license to use the User Information, including any associated copyrights, trademarks, or other intellectual property or proprietary rights User may have in the User information, for any purposes in connection with the Services or the Web Site, subject to the terms of the MetroSwap Privacy Policy. Auction Content.
MetroSwap is not responsible for the quality, accuracy, reliability, legality or completeness of any Seller provided content. Buyer is solely responsible for verifying the quality, accuracy, reliability, legality and competitiveness of all Seller provided content, including any Seller Information. Buyers are encouraged to inspect all properties and assets prior to placing any bid(s). User Conduct.
User represents, warrants and covenants that its use of the Services and the Web Site shall not: - violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Without limiting the foregoing, User represents, warrants and covenants that it will not sell or buy any assets that may not be lawfully offered for sale or purchase in the United States and that User will not export from the United States any asset in violation of U.S. law;
- impersonate any other person or entity, or make any misrepresentation as to User's employment by or affiliation with any other person or entity;
- forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information;
- upload, post, transmit, publish, or distribute any material or information for which User does not have all necessary rights and licenses, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right;
- interfere with or disrupt the use of the Services or the Web Site by any other User, nor "stalk", threaten, or in any manner harass another User;
- upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any "investment opportunities" (except as may be permitted by the use of the Services or the Web Site as provided for herein);
- upload, post, transmit, publish, or distribute any material or information which contains a computer virus, worm, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Web Site, or that of other computer systems;
- use the Services or the Web Site in such a manner as to gain unauthorized entry or access to the computer systems of others;
- upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
- upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable; or
- reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Services or the Web Site, or any component thereof (including, but not limited to any materials or information accessible through the Web Site).
Buyer Conduct.
In addition to those other obligations set forth herein, Buyer acknowledges and agrees that by placing a bid on an asset, Buyer represents, warrants and covenants (1) that it shall not misrepresent its ability to close the transaction pursuant to the terms and conditions of sale, and in accordance with these Terms and Conditions, (2) that it has the capacity to close the transaction, and (3) that it has actual authority to enter a bid, and to enter into an agreement to purchase the asset and (4) that any bid that it makes on an item constitutes an irrevocable offer to buy the item for the full amount of the bid. (5) If Buyer does not complete any transaction in which Buyers is the winning bidder, then Buyer shall immediately forfeit and bid deposit(s), additionally Buyer acknowledges and agrees that it shall be responsible for the payment of all amounts owed for a winning bid including but not limited to applicable taxes and Buyer’s Premiums. Buyer's Premium.
In connection with a listed auction, Seller may charge each Buyer a Buyer's Premium of up to twelve and one half percent (12.5%) of the winning bid price ("Buyer's Premium") upon the completion of a successful transaction, or some other amount is MetroSwap's sole discretion. For more details regarding whether a Buyer's Premium applies to a particular auction and to what extent, including the amount of such Buyer's Premium, please view the appropriate auction information on the Web Site. Any purchase offer that you make on the Web Site indicates your express agreement to pay all amounts due, including any applicable Buyer's Premium. Withdrawal of Auction/Auction Assets.
User acknowledges and agrees that assets in an auction may be withdrawn or sold prior to the end of the designated auction period, and/or that the auction may be discontinued, either temporarily or permanently, all without notice to User. Termination.
MetroSwap expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Web Site by any person or entity, at the sole and absolute discretion of MetroSwap, for any reason or for no reason. Price Manipulation/Bid Rigging.
Collusion between Users or any form of price manipulation or bid rigging is strictly prohibited. Taxes.
MetroSwap is not responsible for the calculation of any taxes or the reporting or remittance of any taxes to any taxing authority. User expressly agrees and warrants that it shall comply with any and all applicable laws and regulations, including without limitation, those with respect to taxes. Users agree to defend, indemnify, and hold harmless MetroSwap from and against any and all damages, penalties, costs and expenses incurred by or imposed upon MetroSwap resulting from any failure by User to comply with applicable tax laws. No Relationship.
User and MetroSwap are independent contractors. Neither party is an agent, representative, broker, employee, or partner of the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, agency, franchise or partnership between the parties or to impose any partnership obligation or liability upon either party. Links to Third Parties.
The Services and the Web Site may provide links to the web sites or services of others ("Third-Party Sites"). Links to such Third-Party Sites do not constitute an endorsement by MetroSwap of such Sites, or the products, content, materials or information presented or made available by such Sites. User acknowledges and agrees that MetroSwap is not responsible for any damages or losses caused or alleged to have been caused by the use of any Third-Party Sites, or from the products, content, material or information presented by or available through such Sites. Downloading Information/Material.
User hereby releases MetroSwap, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns from any and all actual or alleged damages which may result from User downloading any information or materials from the Web Site. Choice of Law.
This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to the principals of conflict of laws. The parties submit to the exclusive jurisdiction of and venue in the Circuit Court of Rock Island, Illinois. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If court proceedings are required to enforce any provision of this Agreement, the prevailing party shall be entitled to an award of reasonable costs and expenses of litigation and any appeal, including reasonable attorneys' fees. Indemnification.
User will defend, indemnify and hold harmless MetroSwap, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (collectively, "Indemnified Parties"), from and against any claim, loss, damage, liabilities, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney's fees) incurred by any of the Indemnified Parties arising from or related to: (i) the use of the Services or the Web Site by User; (2) any breach or violation of these Terms and Conditions by User; (3) any breach of any of User's representations, warranties and covenants; (4) any claims arising out of or related to the goods or services sold through the Web Site; or (5) any claims arising out of or related to Buyer's non-performance of its obligations including but not limited to the obligation to complete transactions and to pay all amounts owed. Disclaimer of Warranties.
THE SERVICES AND THE WEB SITE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES OR THE WEB SITE, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. METROSWAP DOES NOT WARRANT THAT THE SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN OR IN THE WEB SITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES OR THE WEB SITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. METROSWAP MAKES NO WARRANTY THAT THE WEB SITE OR THE SERVICES WILL MEET USERS' REQUIREMENTS, AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT BY POSTING AN ASSET ON THE SERVICES OR THE WEB SITE, THE POSTED ASSET WILL BE SOLD. IF USER IS DISSATISFIED WITH THE SERVICES OF THE WEB SITE, USER'S SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES OF THE WEB SITE. METROSWAP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE WEB SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OF THE WEB SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM METROSWAP OR THROUGH THE SERVICES OF THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. METROSWAP EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY USER. Limitation of Liability.
IN NO EVENT SHALL METROSWAP BE LIABLE FOR ANY DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE WEB SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, LOST GOODWILL, OR LOST SALES. IN NO EVENT SHALL THE TOTAL LIABILITY OF METROSWAP TO A USER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SERVICES OR THE WEB SITE EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100.00).THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. Notices.
Notices shall be given:
To METROSWAP: By email memberservices@metroswap.com and by certified mail, return receipt requested, to: METROSWAP. MetroSwap, Attention Legal Notices, 320 Sonoma Aisle, Irvine, CA, 92618 or to such other address as may be designated from time to time. To User:
By email at the email address as reflected in User's registration information.Notices to User shall be deemed to have been received twenty-four (24) hours after the email is sent. Notices to MetroSwap shall be deemed to have been given three (3) days after the date of mailing by certified mail. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. Waiver.
The failure of MetroSwap to exercise or enforce any right or provision of this Agreement will not deemed a waiver of such right or provision. Trademarks.
MetroSwap, and the logos thereof are trademarks or service marks of METROSWAP. No display or use of such marks may be made without the express written permission of METROSWAP.
