Salvex Web Site Terms and Conditions
1.0 The Terms
1.1 The services provided by SALVEX, INC. ("SALVEX") through the SALVEX Web Site (the "Site") and the SALVEX Auction™ are undertaken by SALVEX in accordance with these terms (the "Terms"). By either listing products for sale or bidding for the purchase of products (“Products”) users ("Users") agree to these Terms. SALVEX reserves the right to modify the Terms.
1.2 Users who wish to become prospective buyers or sellers of Products shall register with the Site by selecting a login ID and personal password and providing any other required registration information.
1.3 Users who log-in represent and warrant that (a) all information provided during registration is accurate and complete and (b) all registration information from time to time will be updated so that it is kept current, accurate and complete at all times. Users are solely responsible for all conduct and transmissions that take place under their respective login ID and passwords. SALVEX may request additional information at any time with respect to registration information. SALVEX may, in its sole and absolute discretion, refuse to accept a User's registration, and may terminate a User's rights to continue using the Site for any reason at any time.
1.5 These Terms are in force at any time a User uses the Site in any way. If a User disagrees with these Terms, the sole remedy is for the User to terminate its use of the Site. Upon any termination of a User's right to use the Site, these Terms shall survive termination with respect to any use or transactions for the sale or purchase of Products occurring prior to termination.
2.0 Listing of Products
2.1 A prospective seller ("Seller") of Products must have the legal authority to sell the Products it lists for sale on the Site, free and clear of any liens, claims or other encumbrances. Seller agrees to use commercially reasonable efforts to supply accurate information for each listing of Products, including quantity and condition (the “Listing Description”). SALVEX shall have no responsibility for the Listing Description. SALVEX reserves the right to reject any Products from posting on the Site.
2.2 Any resale restrictions, transfer costs, load-out requirements, taxes, fees or special conditions required by the Seller must be clearly set forth in the Listing Description. Since the terms of any sale of Products are strictly between the Buyer and the Seller, the enforcement of any resale restrictions shall be as agreed between the Seller and Buyer.
2.3 Once a SALVEX Auction™ begins, the Seller may not update or change the Listing Description without SALVEX approval. If any updates or changes are required for accuracy, it is the sole responsibility of the Seller to notify SALVEX in a timely manner.
2.4 Seller agrees that payment to SALVEX for its services in connection with a Listing Description, the SALVEX Auction™ and facilitating the sale of Products as between Seller and a registered buyer ("Buyer") shall be in the form of either a Performance Based Commission or Exclusive Listing Commission.
3.0 Buyer Bidding and Seller Acceptance of Bid Amounts
3.1 Under the SALVEX Auction™ a Buyer is invited to submit a bid amount for the purchase of the Products to SALVEX only prior to the established ending time ("Bid Amount"). No Bid Amount may be submitted with changes to these Terms. Buyer should carefully review the Listing Description and any applicable Buyer Premium prior to submitting a Bid Amount. A Bid Amount is not retractable except in extraordinary circumstances as determined solely by SALVEX. SALVEX reserves the right to reject or void any Bid Amount in the sole discretion of SALVEX.
3.2 When a Bid Amount is submitted “Subject to Inspection”, the funding requirements set forth in these Terms shall apply.
3.3 At the end of a SALVEX Auction™, the Seller may accept the Net Bid Amount. The “Net Bid Amount” is the Bid Amount less any SALVEX Performance Based Commission or Exclusive Listing Commission amount (collectively the “Commission”). If the Seller agrees to sell the Product at the Net Bid Amount, the Buyer will be promptly notified by SALVEX, at which time the Seller and Buyer as between each other are obligated to complete the sale and purchase of the Products.
4.0 The SALVEX Auction™
4.1 The time period for a SALVEX Auction™ will be determined by SALVEX and will usually extend from 7 to 14 days, except in the event Products are perishable, and in that event the SALVEX Auction™ will usually extend for a period of no more than 24 hours. At the discretion of SALVEX, the SALVEX Auction™ period may be extended for varying periods of time.
4.2 SALVEX is not a traditional auctioneer or broker. SALVEX is not involved in forming the actual transaction between a Buyer and Seller. SALVEX is neither an agent, partner, nor joint venturer of a Buyer nor Seller. SALVEX does not take title to Products at any point in time in a transaction between a Buyer and Seller. SALVEX has no control over the quality, safety or legality of the Products, the truth or accuracy of the Listing Description, the ability of a Seller to sell Products or the ability of a Buyer to buy Products. SALVEX is furthermore not a principal or participant of the underlying transaction between Buyer and Seller.
4.3 For Products sold by a Seller during a SALVEX Auction™, SALVEX will be paid a Commission (deducted from the Bid Amount and which becomes the Net Bid Amount). Unless Seller and SALVEX agree to an Exclusive Listing Commission, the Commission payable to SALVEX will be a Performance Based Commission and will equal no less than $500 and is based on the level of SALVEX services, the type of Product, and the SALVEX Auction™; which amount will be determined in the sole discretion of SALVEX. An Exclusive Listing Commission amount will be a fixed percentage of the Bid Amount as stated in writing signed by the Seller and SALVEX.
5.0 Product Sales Transactions
5.1 Some Products sold in a SALVEX AuctionTM are subject to a “Buyer Premium” which will be stated on the Listing Description.
5.2 At the end of a SALVEX Auction™ and upon acceptance by Seller of the Net Bid Amount, SALVEX will notify the Buyer. At that time SALVEX will provide the Buyer with a funding request for payment of the Bid Amount, and a Buyer’s Premium if applicable (the “Product Funding Request”). At the election of SALVEX the Product Funding Request may be in the form of a SALVEX Deposit Agreement or Escrow Agreement. No later than 48 hours after notification, the Buyer is required to pay the Bid Amount in good and sufficient funds, which becomes the Product Funding Amount. Where a Buyer Premium is set out in the Listing Description, which is not subject to discount, this amount is added to the Bid Amount and becomes the Product Funding Amount.
5.3 When a Bid Amount is “Subject to Inspection”, the Product Funding Amount shall be paid to SALVEX and Buyer shall have 48 hours to conduct its inspection and advise SALVEX of its rejection of the Products and in that event the Product Funding Amount shall be returned to Buyer. In all events, Buyer is required to conduct its inspection for condition, quantity and quality of the Products.
5.4 If the Buyer fails to timely pay the Product Funding Amount, then the Buyer is obligated to pay a penalty equal to $500 and shall be deemed in default and forfeits its rights to purchase the Products, in which case the Seller may sell the Products to another Buyer. In the event of a default a Buyer will also be barred from bidding on other SALVEX Auctions™ until the default penalty is paid. The defaulting Buyer may also be subject to other claims, damages or liabilities to the Seller.
5.5 Upon SALVEX's receipt of a Product Funding Amount in good and sufficient funds, the Seller shall provide and SALVEX shall notify Buyer of a scheduled release date (the "Release Date"), which is the date by which Buyers may either take possession of the Products or assume control of the Products (such as when the Products are in a third party storage facility).
5.6 SALVEX will distribute to Seller, the Product Funding Amount less the Buyer Premium if applicable and less the SALVEX Commission (the "Net Product Funding Amount") upon the earlier of (a) the notification of Buyer to pay the Net Product Funding Amount to Seller, (b) the release of the Products to Buyer or (c) within the agreed payment term as between Seller and Buyer. Any Products that have not been picked up within 5 days after the Release Date will be deemed abandoned and Buyer will forfeit all rights to the abandoned Products. If Seller does not make the Products available by the Release Date, SALVEX will notify both parties and will use commercially reasonable efforts to cause Seller to release the Products in a timely manner. The Product Funding Amount will be refunded to the Buyer within thirty (30) days of the failure of Seller to release the Products in the event Buyer has not otherwise notified SALVEX to release the Product Funding Amount to the Buyer or the terms of sale as between Seller and Buyer do not otherwise require the release of the Product Funding Amount to Seller. The failure of a Seller to release the Products may be subject to other claims, damages or liabilities of the Buyer only.
5.7 Any claims of material shortages in quantity or other material discrepancies of the Products from their posted description must be communicated to SALVEX within twenty four (24) hours after the Products are released to Buyer. SALVEX shall only be required to use commercially reasonable efforts to resolve such claim with the Seller for the Buyer’s account and shall otherwise have no liability to Buyer for such shortages or material discrepancies.
5.8 Should SALVEX become involved in litigation or other proceedings of any nature on account of the Product Funding Amount solely because it holds the Product Funding Amount, Buyer and Seller agree to pay SALVEX, in addition to any commissions hereunder, reasonable attorney's fees incurred by SALVEX and any other costs and expenses resulting from such actions, all of which may be deducted from the Product Funding Amount prior to their disbursement by SALVEX.
5.9 For any agreement on the sale of Products unless otherwise agreed to in writing as between Buyer and Seller, Buyer and Seller agree: (a) ALL PRODUCTS ARE SOLD "AS IS, WHERE IS" WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SALE FOR SUCH ITEM AND LABELED AS A "WARRANTY"; (b) IN NO EVENT SHALL BUYER OR SELLER BE LIABLE TO EACH OTHER FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY LOST REVENUE OR ANTICIPATED PROFITS, ARISING OUT OF OR IN CONNECTION WITH SUCH TRANSACTION; and(c) IN NO EVENT SHALL THE LIABILITY OF SELLER TO BUYER, OR BUYER TO SELLER, FOR ANY SUCH TRANSACTION EXCEED THE BID AMOUNT OF THE PRODUCTS.
5.10 For any completed purchase, the Bid Amount, the Net Bid Amount, the Product Funding Amount, the Net Product Funding Amount, the Buyer Premium, SALVEX Performance Based Commission or Exclusive Listing Commission amounts are confidential and will not be released to other parties.
6.0 Buyer and Seller Responsibilities
6.1 In any transaction on the Site, Buyer and Seller are responsible for determining whether sales, use, VAT, GST, transfer, ad valorem or other similar taxes of any taxing authority apply to the transaction and to collect, report and remit the correct tax to the appropriate tax authority. SALVEX is not obligated to determine whether any such taxes apply and is not responsible for collecting, remitting or reporting any such taxes arising from any transaction. If any such taxes are applicable, it is the obligation of the Seller to disclose this in the Listing Description.
6.2 Each Buyer and Seller agree to comply with all applicable laws and regulations regarding the sale or purchase of Products on this Site. Each Buyer and Seller agree not to use this Site or any content contained in it for any illegal or inappropriate activities, which include harassing or bribing others, misappropriating or copying the contents of this Site or any listing, or selling non-existent, fraudulent or counterfeit Products.
6.3 Sale price manipulation of any kind by Users is strictly prohibited, including, without limitation, bidding through a secondary account or other party, by communicating with any other Buyer, or by shill bidding.
6.4 No Buyer or Seller shall submit, publish, distribute, or transmit through this Site or its e-mail links any content that is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal, hateful, racially or ethnically discriminatory, or that would constitute or encourage a criminal or civil offense, or that would otherwise give rise to liability or violates any law.
6.5 No Buyer or Seller shall submit, publish, distribute, or transmit anything through this Site that will violate or infringe, or cause SALVEX to violate or infringe, the intellectual property or other rights of any third party, including copyright, trademark, trade secret, privacy or other proprietary rights. No Buyer or Seller shall use this Site to send unsolicited advertising, promotional material, or other forms of solicitation to other users.
6.6 Any Buyer or Seller who exports or imports any Products shall comply with and become knowledgeable about any restrictions, taxes or duties, and government filings involved with importing such Products.
7.0 No SALVEX Warranties; Limitation of Liability; and Release
7.1 THE PRODUCTS LISTED ON THIS SITE UNLESS OTHERWISE SET FORTH IN THE CONTRACT BETWEEN BUYER AND SELLER, ARE TO BE SOLD ON AN "AS IS", "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SALVEX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION, ACCESSIBILITY OR SECURITY OF THIS SITE, AND THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY OF THE CONTENT OR DATA FOUND ON THE SITE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SALVEX DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONS, FEATURES OR CONTENT ON THE SITE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, SECURE OR OPERATE WITHOUT ERROR. SALVEX EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY BUYER OR SELLER.
7.2 TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SALVEX ASSUMES NO RESPONSIBILITY, AND IN NO EVENT SHALL SALVEX BE LIABLE FOR, ANY INJURY, LOSS, CLAIM, DAMAGE, LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF THE SALE OF ANY PRODUCTS LISTED ON THIS SITE OR IN CONNECTION WITH BUYERS OR SELLERS ACCESS TO, USE OF, OR BROWSING IN THIS SITE OR FROM DOWNLOADING OF ANY MATERIALS, DATA, OR CONTENT FROM THE SITE.
7.3 IF, NOTWITHSTANDING THE FOREGOING, SALVEX OR ANY SELLER SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE (WHETHER IN CONTRACT OR TORT) WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THESE TERMS OR THE USE OF THE SITE, THE LIABILITY OF SALVEX SHALL IN NO EVENT EXCEED THE COMMISSION PAID SALVEX WITH RESPECT TO THE PARTICULAR TRANSACTION GIVING RISE TO SUCH LIABILITY.
7.4 Buyers and Seller release SALVEX, its subsidiaries and affiliates, and their respective officers, directors, agents, employees and third party suppliers, from claims, demands and damages (actual and 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 (inasmuch as SALVEX is not involved in the actual transaction between Buyers and Sellers) relating to this Site or the Products. All Buyers and Sellers who are California residents, waive California Civil Code §1542, which says: "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."
Each Buyer and Seller shall indemnify, defend and hold harmless SALVEX, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, reasonable attorneys' fees), brought by or on behalf of any third party against SALVEX that arises out of (a) any breach or violation of these Terms, (b) any dispute with another Site User relating to the purchase or sale of Products on this Site, or (c) any personal injury, death or property damage caused by or arising out of the subsequent use of the Products purchased on the Site.
9.0 Links and Advertisements
The Site may contain links to or banners advertising other sites on the Internet that are owned and operated by third party vendors and other third parties. SALVEX is providing these links and banners solely as a convenience. The appearance of a link or advertisement does not imply SALVEX' endorsement, nor is SALVEX responsible for the content of any linked site.
10.0 Applicable Law
This Site is controlled by SALVEX from its offices in Houston, Texas. The laws applicable to the interpretation of these Terms shall be the laws of the State of Texas, without regard to any conflict of law provisions.
11.0 Disputes and Venue
11.1 Any legal action arising out of or relating to these Terms will first be submitted for informal resolution between User (Buyer, Seller or third party) and SALVEX.
11.2 Should the parties fail to resolve such dispute within thirty (30) days where the parties substantively discuss the dispute on at least two separate occasions), the parties shall refer the matter to mediation administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules & Mediation Procedures, as amended and then in effect at the time of the dispute (the “AAA Rules”). As an exception, any dispute over the payment of unpaid, undisputed SALVEX Performance Based Commission or Exclusive Listing Commission may proceed directly to binding arbitration as set forth below.
11.3 Should the parties fail to resolve such dispute through mediation, each party shall have the right to refer the matter to arbitration. The arbitration shall be administered by the AAA in accordance with the AAA Rules. The parties shall agree on a single neutral arbitrator that is qualified by education and experience to address the matter in the dispute. In the absence of such agreement within ten (10) days after the initiation of an arbitration proceeding, the AAA shall determine the arbitrator. The arbitrator shall have power and authority to award any remedy or judgment that could be awarded by a court of law, except the arbitrator shall not have power to award damages in connection with any dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential or punitive damages. The award rendered by arbitration shall be final and binding upon the parties, and judgment upon the award may be entered in any court of competent jurisdiction in the United States. The governing law for the arbitration shall be the law of the State of Texas, without reference to its conflicts of law provisions. The prevailing party of any arbitration shall be entitled to recover its reasonable legal costs and expenses to bring and maintain any such suit as part of its damages.
11.4 The foregoing will not be construed to prohibit SALVEX from directly seeking temporary injunctive relief because of a breach or threatened breach of Section 12 of this Agreement without first complying with this Section.
12.0 SALVEX Copyright and Trademarks
SALVEX and the SALVEX logo are trademarks or service marks of SALVEX. The trademarks, tradenames and all other material contained on this Site, including all portions of the website, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of SALVEX or its licensors. Except as expressly permitted hereby, the use of any such property for any other purpose, or the modification, distribution or republication of such material without the prior written permission from SALVEX, is strictly prohibited.
13.0 General Terms
13.1 These Terms constitute the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
13.2 These Terms do not create, and shall not be construed by the parties or any third person as creating any agency, partnership, joint venture, or employment relationship between a Buyer or Seller and SALVEX. The relationship of the parties under these Terms shall be solely that of independent contractors. Neither party shall have, nor hold itself out as having, any right, power or authority to assume, create, or incur any expenses, liability, or obligation on behalf of the other party, except as expressly provided herein.
13.3 SALVEX's failure to exercise or enforce any right or provision of these Terms will not constitute our waiver of such right or provision.
13.4 All of the terms, agreements, covenants, representations, warranties, and conditions of these Terms are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and assigns.
13.5 The provisions of these shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof, provided that any provision of these Terms that is invalid or unenforceable in any situation or in any jurisdiction will not affect the enforceability of the remaining terms and provisions hereof or the enforceability of the offending term or provision in any other situation or in any other jurisdiction.
Please feel free to contact SALVEX to resolve a complaint regarding any aspect of service relating to this Site by writing to the above address, sending e-mail to Info@Salvex.com.