ERC (the "Company"), operator of EliteRebuildableCars.com, provides access to its services ("Service") to individuals, partnerships, businesses and corporations ("User", "Seller", "Buyer" or "you") subject to the following terms and conditions (the "User Agreement"). As a condition of using the site and Services, the Company requires that you review and accept this User Agreement
BY USING THIS SERVICE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THIS USER AGREEMENT, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICES OR SITE.
1. COMPANY OBJECTIVE AND SERVICES
The Company's objective is to provide motivated sellers with an end-to-end solution to convert inventory into cash efficiently and reliably, and to provide Buyers with a repairable vehicle at a fraction of the cost of retail.
2. USER OBLIGATIONS
The Services are available only to individuals or entities that can form legally binding contracts. Without limiting the foregoing, minors in any jurisdiction may not participate. The Company reserves the right to review and verify the information provided in your registration application and to, at its sole discretion, postpone or reject your registration approval.
2.1. USER INFORMATION
Each User agrees that all of the information provided is timely, true and correct, including, but not limited to, the User's legal name, address, phone number, fax number, e-mail address, and other personal and business information. You agree to promptly notify the Company should the User information provided need to be updated, changed or deleted. You understand that your failure to provide accurate and complete information may result in actions taken against you, including without limitation, the immediate suspension or termination of your use of the Services. User understands that email will be the primary medium for Company to communicate information about the vehicles.
The Company may, at its discretion, but is not obligated to, monitor material, content and information on the site, including, but not limited to listings, to determine compliance with the terms and conditions of this User Agreement and current and future operating procedures and rules of conduct established by the Company. The Company may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to carry out the terms of this User Agreement, to protect the rights of the Company, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, information, or court order submitted or transmitted to the Company. The Company reserves the right, at its sole discretion and without liability to any User, to amend, edit, remove or otherwise block any material posted by a User which may, in the Company's sole discretion, violate any state, federal or local law or violate any aspect of this User Agreement in order to limit the Company's liability. However, the Company does not assume responsibility for verifying the material, content and information on its site and is not responsible for any damages, losses, expenses or other injuries incurred by any User as a result of relying on any material, content and information posted on the Company's Site.
3. SELLER OBLIGATIONS
Users who use the Company's site agree that: Sellers can submit information by using the online "Management" tool. This tool enables you to include all the relevant information regarding the vehicle that will be necessary to sell (e.g. description, price, shipping information), promote and facilitate the logistic management. This information may be reviewed to ensure its consistency and accuracy and posted upon agreement of our Sales Team.
3.1. LISTING INFORMATION
Sellers are solely responsible for the accuracy, completeness and validity of all the information describing the vehicle listed for sale (the "Listing Information"). Sellers who post merchandise for sale on the Company's site represent and warrant that they are the lawful sellers of the listed vehicle. Each Seller represents and warrants that all Listing Information provided is accurate and truthful regarding, without limitation, the type, year, make, model and condition of the Listed assets posted by the Seller on the Company's site. Sellers understand and agree that the Company, at its sole discretion, may take any action it deems necessary to review, edit or remove any listing information provided with respect to any assets posted by a Seller.
3.2. NO UNLAWFUL OR RESTRICTED ASSETS
Sellers agree that they will not attempt to sell any illegal or restricted vehicles of any kind through the Company's site.
3.3. OFFER TO SELL
Upon posting a vehicle for sale, Seller represents, warrants and agrees that it is irrevocably offering to sell the listed vehicle to any Buyer who satisfies the requirements of the transaction, terms of payment and shipping. Seller represents, warrants and covenants that (1) it has good and marketable legal title to the offered assets, free and clear of any lien, security interest, leasehold interest, co-ownership interest, or any other type of encumbrance or interest of any other person or entity; (2) it has authority to list the offered vehicle for sale and to sell the offered assets, no listed asset infringes or violates (or contains any parts or components which infringe or violate) any third party's copyright, patent, trademark, trade secret or other intellectual property or propriety rights. Failure of a Seller to complete the sale of an asset to a qualified Buyer because of non-delivery or misrepresentation of the merchandise could result in damages payable to the Company. Seller agrees to be in compliance with all applicable rules, regulations, statutes and other laws, including but not limited to applicable surplus property laws.
4. BUYER OBLIGATIONS
Users who use the site to buy listed vehicles of any kind ("Buyer" or "Buyers") represent, warrant and agree that:
4.1. ASSET RECEIPT AND INSPECTION
After the close of a sale in which Buyer has purchased the vehicle, Buyer is required to make arrangements to pay for the vehicle and to take delivery of shipment or pick up Seller's listed assets. If a Buyer refuses shipment of merchandise upon arrival at the Buyer's location, the Buyer is responsible for the associated shipping charges. Buyer must conduct an inspection of the goods within a reasonable time following receipt or waive any claim for damages or non-conformity of the goods. Buyers who elect to arrange their own shipping of purchased goods waive their right to inspect the goods or to the Company's dispute resolution process regarding any alleged non-conformity of the goods. Except as otherwise stated in writing by the Company, all assets are sold "as is, where is."
4.2. IN THE ABSENCE OF SELLER FRAUD
In the absence of Seller fraud, failure of Buyer to complete the purchase of assets may result in damages against the Buyer, including all damages available at law or equity. Buyer''s failure to purchase assets after a Buyer's offer is accepted will result in suspension or termination of Buyer's account. In addition, in the event of Buyer's failure to complete a transaction in the absence of Seller fraud, the Buyer agrees to immediately remit a success fee to the Company equal to 15% of the final purchase price. In the event of Buyer's default, the right is reserved to sell or otherwise dispose of the subject property and to charge all losses and expenses incidental thereto to the defaulting Buyer.
5.1. INTERRUPTION OF SERVICE
User understands that the Company shall take all commercially reasonable efforts to make its Site and Service available. However, the Company is not responsible for any damages or losses related to any system errors or interruptions affecting its Site and the processing of any online liquidation auctions or sales. User understands that the Site may be unavailable unexpectedly as a result of circumstances beyond its control or routine maintenance. User agrees not to attempt any action which may disrupt the Company's Site and Services, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of the Company's programs or infrastructure.
5.2. CHANGES TO SITE AND SERVICES
The Company reserves the right, in its sole discretion, to modify, suspend or terminate any aspect of its Site and Services, including, but not limited to, content, features, news and information, and product categories without notice.
5.3. RECORD KEEPING
The Company cannot guarantee the preservation or maintenance of records relating to historical transactions and activity and encourages User to keep individual records and an accounting of all activity conducted through the Company's Site.
User acknowledges and agrees that the Company does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may be assessed or owed by any User in connection with the use of the Company's Site and Services. User understands and agrees that User is solely responsible for the calculation and payment of any taxes that may be incurred as a result of using the Company's Site and Services.
5.5. NO AGENCY
The relationship between Users and the Company is that of an independent contractor. No agency, partnership, joint venture or franchise relationship is implied, intended or created by the terms and conditions of this User Agreement.
5.6. SITE IS ONLY A VENUE
The Site and associated sites are merely a venue for Users to exchange information and facilitate transactions. It is expressly understood and agreed that the Company is not a broker or agent and has no duty to the User with regard to transactions through the Services other than those duties expressly outlined in the terms and conditions of this User Agreement. Unless otherwise stated, the Company is not a party to the transactions between Buyers and Sellers. The Company does not guarantee the quality, safety, condition, or ownership of the assets advertised for sale on its Site and does not guarantee the accuracy of the information provided in the description of assets advertised for sale on its Site. Buyers are encouraged to perform their own due diligence, including, but not limited to, using the Site's "Ask the Seller a Question" feature and the arrangement of an on-site inspection. The Company does not guarantee any individual Seller's or Buyer's ability to complete transactions using the Company's online liquidation service and makes no representation regarding the identity, creditworthiness, or performance of any User.
USER AGREES NOT TO HOLD COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY OF USER'S DEALINGS WITH ANY OTHER USERS.
5.7. NOTICE AND COMMUNICATION
Unless stated otherwise, all notice and communication with User shall be provided by e-mail to the e-mail address provided by the User in their registration application or via posting on the Site. Notice shall be deemed to have been provided 24 hours after the e-mail was transmitted by the Company or at the time the information was posted on the Site. If the Company receives a message that the User's e-mail is disconnected, is no longer valid, or that the e-mail communication could not be delivered (for whatever reason), notice shall be deemed to have been provided at the time the information was posted on the Site. Any mailed letters sent by the Company to the User shall be considered courtesy copies only, and shall not have any bearing on the determination regarding the date notice was provided as stated above.
In the event User has a dispute with another User, User releases Company, directors, officers, employees and agents from claims, demands and damages, whether actual or consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. This release includes any claims brought by any individuals relating to misuse or unauthorized use of data User gives to Company. Users agree to defend, indemnify and hold harmless the Company, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all damages (whether direct, consequential or otherwise), claims, liabilities, costs and expenses incurred (including, without limitation, all reasonable fees), as a consequence of any acts by User undertaken in connection with the Company's Site and Services, including without limitation, those arising out of any breach of any User representation or warranty, User's obligations hereunder, any User transaction attempted through the Service, or any dispute between User and any other Users.
5.9. THIRD PARTY LINKS
The Site may contain links to other websites or resources for the convenience of Users in locating related information and services. User acknowledges and agrees that Company is not responsible or liable for (i) the availability or accuracy of such sites or resources, or (ii) the content, advertising or products on or available from such sites or resources, the User Agreements that may govern such sites or resources, or the privacy policies and data collection, use or retention practices of such sites. The inclusion of any link on the Site does not imply that the Company endorses the linked site. User uses the links at User's own risk.
This User Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of law provisions thereof, and, to the maximum extent permissible, without reference to that body of law known as the Uniform Computer Information Transaction Act. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof..
If any provision of this User 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 and the remainder of this User Agreement shall continue in full force and effect.
The terms and conditions of this User Agreement constitute a binding agreement between the Company and each User until terminated by the User or the Company. User may discontinue use of the Site and Services at any time with or without notice to Company. The Company expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of the Company, for any reason and without notice.
5.13. DISCLAIMER OF WARRANTIES
THE SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE SITE OR SERVICES, ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. THE COMPANY DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY SYSTEM INTEGRATION OR QUIET ENJOYMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES, FUNCTIONS, FEATURES OR CONTENT WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. COMPANY MAKES NO WARRANTY THAT THE LISTED ASSETS, SITE OR SERVICES WILL MEET USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING THE LISTED ASSETS, THE LISTED ASSETS WILL BE SOLD. COMPANY MAKES NO WARRANTY REGARDING ANY LISTED ASSETS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE, INSTRUCTIONS OR INFORMATION RECEIVED BY A USER, WHETHER ORALLY OR IN WRITING, FROM THE COMPANY SHALL CREATE ANY WARRANTY BY THE COMPANY NOT EXPRESSLY MADE HEREIN. COMPANY EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY LISTED ASSETS SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
5.14. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY, NOR ANY SELLER BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (a) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSETS OR (b) DEFECTS IN SUCH LISTED ASSETS ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY. IN ADDITION, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE CONTENT INCLUDING WITHOUT LIMITATION ANY MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF COMPANY OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR IN TORT) EXCEED THE AMOUNT OF FEES PAID BY THE USER TO THE COMPANY IN CONNECTION WITH THE DISPUTED ASSETS.
The parties have agreed that the limitations of liability set forth will survive and apply even if any limited remedy specified in this User Agreement is found to have failed its essential purpose. Some jurisdictions may not allow the limitation or exclusion of incidental or consequential damages, so the above limitation may not apply to certain Users.
The failure of Company to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. Any waiver of any right, provision, term or condition must be in writing, signed by our authorized representative, and will be effective only for the instance specified in the writing.
5.17. INTELLECTUAL PROPERTY
Company intellectual property ("Company IP") is all inventions, know how, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or otherwise relating to the Site or Services. Company IP may be created by one of more of Company's employee(s) alone or jointly with a User or Users arising from the use and development of the Services or as a result of User's feedback regarding the Site or Services ("Feedback"). All right, title and interest in any Company IP shall belong to Company and shall be subject to the conditions of this User Agreement. User hereby irrevocably assigns to Company all right, title and interest User may acquire in any Company IP. Company may, at its option, file an application for intellectual property protection for Company IP. If any such Company IP is created with User's participation, User agrees to cooperate with Company to assure that such application(s) will cover, to the best of User's knowledge, all related assets, including all features of commercial interest and importance. Company IP is the sole and exclusive property of the Company, unless otherwise stated and may not be used without the prior written consent of the Company.
The Site and the Company's trade names, domain names and logos found on the Site are trademarks or service marks of MetroGraphix. No display or use of such marks may be made without the express written permission of MetroGraphix.
All trademarks, trade names, logos, and service marks featured on this website are the property of the owners of said intellectual property. MetroGraphix disclaims any associations or endorsements that may be implied through the use of the trademarks, trade names, logos or service marks of others.
This User Agreement may not be assigned by User or by operation of law to any other person, persons, firms or corporations without the express written approval of the Company.
5.20. ENTIRE AGREEMENT
This User Agreement constitutes the entire agreement between the User and the Company, and it supersedes any previous agreements, whether oral or in writing, between Users and the Company. The Company may, at its sole discretion, remove or change any aspect of this User Agreement. Any change to this Agreement will become effective at the time such change is posted to the Company's website. No notice will be provided to Users regarding any change to the User Agreement. Users are encouraged to review the terms and conditions of this User Agreement frequently to ensure that they are aware of any changes. The Company will not be liable to the User for any failure to notify the User of a modification to the User Agreement.
6. SITE REGULATIONS (FOR ALL USERS)
The technology, software, and data underlying the site are the property of the Company or the Company's affiliates or partners. As a User, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in or otherwise transfer any right to the technology or software underlying our Site. You agree not to modify the software underlying our sites in any manner or form, or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
Without limiting the foregoing, you agree that you will not use the Site to take any of the following actions:
(a) Defame, abuse, harass, stalk, threaten or otherwise violate the legal right of others;
(b) Publish, post, upload, email, distribute or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content;
(c) Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person's computer, our sites, any software or hardware, or telecommunications equipment;
(d) Advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so;
(e) Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, or chain letters;
(f) Download any file that you know or reasonably should know, cannot be legally obtained in such manner;
(g) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
(h) Restrict or inhibit any other user from using and enjoying any public area within our sites;
(i) COLLECT, STORE OR TRY TO GAIN ACCESS TO PERSONAL INFORMATION ABOUT OTHER END USERS, CUSTOMERS, SUPPLIERS OR ENTITIES THAT HAVE USED THE SITE;
(j) USE DATA ABOUT END USERS, CUSTOMERS, SUPPLIERS FROM THIS SITE FOR PERSONAL GAIN;
(k) Interfere with or disrupt our sites, servers or networks;
(l) Impersonate any person or entity, including, but not limited to, a Southern Textile representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(m) Forge headers, manipulate identifiers or other data in order to disguise the origin of any content transmitted through our sites, or to manipulate your presence on our sites;
(n) Take any action that imposes an unreasonably or disproportionately large load on our infrastructure.
(o) Engage in any illegal activities
Unauthorized access to the Company's sites is a breach of this User Agreement and a violation of the law. You agree not to access the Company's sites by any means other than through the interface that is provided by the Company for use in accessing its sites. You agree not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor or copy any part of the Company's sites except those automated means that have been approved in advance and in writing by the Company
Use of the Company's site is subject to existing laws and legal process. Nothing contained in this User Agreement shall limit the Company's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Company's site.
6.1. RESELLER PROVISIONS
In addition to applicable terms and conditions stated elsewhere in this User Agreement, the following provisions apply to all Buyers, who resell or intend to resell, whether now or in the future, the assets purchased from the Company hereunder:
6.1.1 NO EXCLUSIVITY
The Buyer understands and agrees that the sale of assets by or through the Company is not an exclusive basis. Company may sell the same type of assets to other bidders. Buyer further understands and agrees that the Company is not guaranteeing a minimum quantity, quality, and percentage of product mix or a continuous flow of such assets.
EXCEPT AS OTHERWISE STATED HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ASSETS SOLD HEREUNDER, OR ITS MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN BY COMPANY, AND NONE SHALL ARISE BY OR IN CONNECTION WITH THIS USER AGREEMENT AND/OR COMPANY'S CONDUCT IN RELATION HERETO, AND IN NO EVENT SHALL COMPANY BE LIABLE ON ANY SUCH WARRANTY WITH RESPECT TO ANY ASSETS SOLD HEREUNDER. Buyer accepts all assets sold to it in accordance with this User Agreement on an "AS IS" basis. Unless otherwise agreed in writing by Company, title and risk of loss will pass to Buyer upon pickup at the origination point by carrier (F.O.B. Origin). Upon pickup of the assets, Buyer shall release Company of any fault, and shall forfeit any rights to claims associated with the assets or the shipment of assets purchased hereunder against the Company.
6.1.3. CONFLICTING TERMS
If any term or condition stated in this Section 6 conflicts with any other applicable provision of this User Agreement, the terms stated in this Section 6 shall control and take precedence over such conflicting provisions. I UNDERSTAND THAT BY PARTICIPATING IN A ELITEREBUILDABLECARS.COM TRANSACTION THAT I AM BOUND AND I AGREE TO BE BOUND BY THIS USER AGREEMENT. [November 1, 2018]