You (the “Member”) are entering into a legally binding agreement. These Member Terms and Conditions (this “Agreement”) set out the terms on which Exclusive Enterprises Group, Inc. DBA: Exclusive Auctions hereinafter referred to as (“EXA”), offers you access to and use of EXA’s websites, applications, tools, and services (collectively “Membership Services”).
Please be advised that this Agreement affects your legal rights and contains provisions that govern how claims between you and EXA have against each other are resolved. You should read this Agreement in its entirety before accepting it. If you object to anything in this Agreement, or otherwise do not understand or agree to be bound by this Agreement, do not use the Membership Services. If you use the Membership Services in any way, including by posting a Listing or placing a Bid through EXA’s website, you agree to and are bound by this Agreement. You are encouraged to retain a copy of this Agreement for future reference.
EXA may modify, add to, suspend or delete this Agreement, in whole or in part, at EXA’s sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Website (as defined below). EXA will provide you with notice of such changes, and it is your responsibility to review any changes to this Agreement. If you object to any of the changes to this Agreement, or otherwise do not understand or agree to any of the changes to this Agreement, do not use the Membership Services. By continuing to use the Membership Services following notice of any changes to this Agreement, you agree to and are bound by this Agreement as changed.EXA may modify, add to, suspend or delete this Agreement, in whole or in part, at EXA’s sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Website (as defined below). EXA will provide you with notice of such changes, and it is your responsibility to review any changes to this Agreement. If you object to any of the changes to this Agreement, or otherwise do not understand or agree to any of the changes to this Agreement, do not use the Membership Services. By continuing to use the Membership Services following notice of any changes to this Agreement, you agree to and are bound by this Agreement as changed.
The “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement.
II. GENERAL TERMS, ACKNOWLEDGMENTS
For purposes of this Agreement, references to “you,” “your,” and “Member” shall mean a registered user of the EXA website. References to the “Website” shall mean the website located at: https://ExclusiveAuctions.com/ and any related website provided by EXA unless otherwise specified. “Member Account” or “Account” shall mean the account you create through the Website and through which you may receive information from EXA and participate in the Membership Services and other features of the Website, such as bid in online auctions and arrange for Listing shipment. The term “Listing(s)” shall mean all items posted for sale on the Website. “Seller” shall mean a Member who uses the Website to sell a Listing. “Buyer” shall mean a Member who uses the Website to purchase a Listing.
B. Modifications and Changes to the Website, Membership Services
EXA may modify, add to, suspend, or delete any aspect of the Website or any Membership Services offered by EXA thereby, in whole or in part, at EXA’s sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to functionality and services offered, other content offered, hours of availability, and equipment needed for access or use.
C. Prohibited Use of the Website, Member Account
In addition to other prohibitions as set forth in this Agreement, you are prohibited from using the Website and/or any Member Account: (a) for any unlawful purpose, including but not limited to, Listing stolen property; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate EXA’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or materials and products found thereon, or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Website, other websites, or the Internet. EXA reserves the right to terminate your use of the Website for violating any of the prohibited uses or for any other reason at EXA’s sole and exclusive decision.
D. Accuracy, Completeness and Timeliness of Information
EXA is not responsible if information made available on the Website is not accurate, complete or current. You acknowledge that the Website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge and agree that no advice or information, whether oral or written, obtained from EXA, or through the Website, shall create any warranty not expressly stated in this Agreement. You further acknowledge that any material downloaded or uploaded or otherwise obtained through the use of the Website is done at your own risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download or upload of any such material.
E. Right of Refusal, Limitation, and Discontinuation
EXA reserves the right to refuse to provide any access to the Website and/or Membership Services and/or a Member Account to anyone for any reason at any time at EXA’s sole discretion without recourse to you.
III. YOUR MEMBER ACCOUNT
A. Registration Required
In order to participate in the Membership Services, such as bidding on Listings, accessing Listing reports, establishing a bidding limit, and benefiting from exclusive discounts and services, users are required to register as Members. Access of the Membership Services without registration shall be strictly prohibited.
B. Membership Eligibility
Membership is limited to those persons who are eighteen (18) years of age or older and have the capacity to enter into a legally binding contract and who reside in the countries that are not currently under U.S. trade embargo restrictions. You must also hold a valid driver’s license, state-issued ID or passport and shall be required to provide proof of the same upon registration. In addition to the foregoing, state-specific registration requirements and applicable laws, regulations and restrictions may further limit Member registration and Listing purchasing eligibility.
C. Registration Process and Procedures
D. Account Activity
Members are responsible for all Account activity, including, without limitation, all bids submitted under the Member’s username and password through the Website. A Member’s Account may not be transferred or assigned to any person or entity. In the event a Member’s Account or username and password are used without authorization, you agree to immediately notify EXA of any such unauthorized activity. Members shall be responsible for all Account activity and charges incurred prior to the receipt of written notice by EXA of such unauthorized activity.
E. Revocation of Membership
EXA reserves the right to suspend or irrevocably revoke the Membership of a Member for any reason, at EXA’s sole and absolute discretion. Membership may be suspended for any of the following reasons, including but not limited to: (a) improper or unprofessional conduct on the Website or on any affiliate website, through any electronic or non-electronic format, (b) non-payment of contracted agreements, or (c) any other reason whatsoever as EXA deems applicable. EXA shall not be liable in any manner whatsoever for revocation or suspension of Membership.
F. Marketing and Promotional Materials
Members agree and acknowledge that by registering for an Account they have affirmatively requested to receive marketing and promotional materials via mail, e-mail, or facsimile from EXA and EXA’s third-party affiliates. To unsubscribe to any promotional materials sent to you via e-mail, simply follow the unsubscribe information provided at the bottom of each communication.
G. Comments on Auction Pages
Members have the option to place comments on the auction page of any Listing listed on the Website. Comments may be directed to the Seller, to other Members bidding on the Listing, or to other Members commenting on the Listing. You agree that any comments you make on an auction page will be appropriate and professional. Comments will not contain any content that is indecent, of a derogatory nature, or otherwise inappropriate or unlawful. EXA reserves the right to remove any comments or to revoke or suspend the Membership of any Member who violates this provision, all at EXA’s sole and absolute discretion.
Member agrees and acknowledges that EXA will have the right to periodically send electronic or printed correspondence to such Member, including text messages. Such correspondence may be in reference to changes in policies, promotions available to Members, or other material related to the Member’s Account or access thereof to the Website. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to your Member Account, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send a message via text. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by email, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law, for purposes of quality monitoring purposes.
IV. AUCTIONS, BIDDING AND SALES
The “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement, contain the complete guide to the auction services provided by EXA and shall be referenced by the Member for utilization of the services.
B. Disputes Regarding Auctions
Should a dispute arise regarding an Auction, EXA is the exclusive deciding authority with sole and absolute discretion in resolving disputes. Members agree to indemnify, defend and hold EXA harmless from any and all liability arising out of decisions made in resolving disputes regarding Auctions.
C. Transfer of Title
Members understand that the procedures for transferring title of a Listing purchased through the Website are the responsibility of Seller and Buyer. Title to Listings listed for sale on EXA shall never be held by EXA and EXA shall bear no responsibility for the inability or failure of Seller or Buyer to affect the correct transfer of title of any Listing purchased through the Website.
D. Sale Cancellation
EXA reserves the right to cancel or reverse a sale transaction in the event of fraud, material misrepresentation, or patent defect in the description of the Listing or bidding information, as determined by EXA in EXA’s sole discretion. EXA will not be liable to any Member as a result of any Listing withdrawal, sale cancellation or postponement.
E. Post-Bid Damage, Discrepancy
If, prior to the Listing being retrieved by Buyer, it is determined that items have been removed or replaced on the Listing, that additional damage has occurred since the time the Buyer submitted his/her bid, and/or there is a title type discrepancy, the Buyer will have the option to purchase the Listing at the original price or cancel the sale. Odometer readings that differ from the listed mileage by less than one thousand (1,000) miles do not qualify for transaction cancellation or refund of any amount from EXA.
F. Risk of Loss, Assumption of the Risk
Buyer takes full responsibility and assumes all risk of loss for all Listings purchased from the time EXA accepts the Buyer’s bid. From and after acceptance of the Buyer’s bid, Buyer acknowledges that EXA is not responsible for damage to or loss of the Listing or parts thereof and shall not be responsible for any claim of damage, regardless of whether Buyer, or any person on Buyer’s behalf such as Buyer’s agent, employee or representative, picks up the Listing from Seller.
G. Compliance with Laws, Rules, and Regulations
Members shall comply with all applicable laws, statutes, ordinances and regulations regarding their use of the Membership Services. Buyer agrees to comply, and to cause its agents and representatives to comply, with all applicable laws and regulations when retrieving a purchased Listing from Seller, including properly loading and securing all Listings for safe travel. EXA shall in no event be responsible or liable for any damage occurring as a result of unsafe or improper loading or securing of a Listing for transport and the Buyer agrees to indemnify, defend, and hold EXA harmless from any and all claims, damages, losses, liabilities, obligations, costs and expenses (including attorneys’fees) arising from or related to any failure of the Buyer or the Buyer’s agent or representative to properly load and/or secure a Listing for transport.
V. DELIVERY OF LISTING TO BUYER
A. Pickup by Buyer
Purchased Listings or Items may be picked up by the Buyer directly from the applicable Seller only after full and complete payment for the Listing, including payment of any and all applicable fees.
B. Shipment of Purchased Listing
Should a Buyer desire to have the purchased Listing shipped to Buyer, Buyer may arrange with Seller for such shipment. Buyer may utilize third party shipping partners as referenced on the Website. However, under no circumstances will EXA make arrangements for such shipment or be responsible for Seller’s refusal to make such arrangements.
C. Non-Delivery by Seller
In the event that Seller fails to make a purchased Listing available for delivery to Buyer within 72 hours of full payment of the Listing, EXA will return to Buyer an amount equal to the Buyer’s Fee (as hereinafter defined) if paid in full less any administrative charge incurred by EXA in processing the refund. Seller will not be entitled to the return of any fee paid by Seller on account of that sale and will be liable to EXA for any amount refunded to Buyer and any fee or administrative charge incurred by EXA to refund the Buyer’s Fee to Buyer.
D. Shipping Disclaimer
Members acknowledge and agree that it is the Buyer’s responsibility to either pick up or arrange for the delivery of a purchased Listing. In the event that Buyer elects for delivery of a purchased Listing, Buyer shall be solely responsible for arranging and paying for the shipment of the Listing. EXA shall not be liable for any loss of Listing keys, Listing damage, Listing or part theft, or shipment delays.
VI. FEES AND PAYMENTS
A. Seller’s Fees
Seller Fees (if any) and options available to Seller are listed in the “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ and are incorporated herein by reference and are hereby made a part of this Agreement, and shall be referenced by the Member for utilization of the services. If the Seller’s Listing is rejected by EXA and not able to be listed for sale on the Website, for whatever reason, EXA will refund any auction fee already paid by Seller with respect to the rejected Listing.
By listing a Listing for auction (solicited or unsolicited) the Seller automatically agrees to all “General Terms and Conditions” outlined in this document as well as the “Seller’s Agreement”.
B. Buyer’s Fees
Buyer Fees (if any) and options available to Buyer are listed in the “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement, and shall be referenced by the Member for utilization of the services.
C. Payments for Listings
Payment options available to Buyer are listed in the “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement, and shall be referenced by the Member for utilization of the services.
D. Non-Payment by Buyer
If a Buyer fails to issue payment for a purchased Listing within the allotted time, the Buyer will be considered to have forfeited all of its rights in the Listing. In the event that Seller fails to sell the Listing for a sale price equal to or greater than the sale price agreed-upon by the forfeiting Buyer, the forfeiting Buyer will be liable to Seller for the difference between the sale prices.
E. Payment of Sales Tax
Buyer agrees that Buyer is solely responsible for paying any applicable sales tax for a Listing purchased through the Website. Buyer agrees that EXA is not responsible for notifying Buyer of any particular sales tax and that EXA shall not be liable for any penalty incurred by Buyer for failure to pay any applicable sales tax or any other applicable local, state, or federal charge.
F. Authorization to Collect, Unpaid Fees
You hereby authorize EXA to debit any and all outstanding fees from the account linked to your original form of payment without seeking your prior consent or approval or otherwise notifying you of EXA’s intent to so debit said fees. All Members shall abide by the following statement: “I hereby authorize EXA to initiate debit/credit entries from my bank deposit account or credit/debit card.” In the event of unpaid fees due and owed by a Buyer, Buyer agrees and acknowledges that Seller shall have no duty or other obligation to release to Buyer any Listing or Listing title until all fees are paid in full to EXA to the complete satisfaction of EXA.
G. Fee Dispute
Unless otherwise specified herein, no fees shall be refundable to you for any reason whatsoever due to the non-cancelable and irrevocable nature of the transactions provided for herein. Should you object to the payment of any fee, you agree to write to EXA, using the contact information on the Website, so that EXA may determine the validity of your claim. Should EXA deny refunding you the disputed fee, you agree to submit the claim to binding arbitration pursuant to the provisions of Section VIII.B, infra. You agree to indemnify EXA for any financial harm and/or any losses that arise from or relate to any fee dispute of any kind, including the payment of attorney’s fees and costs.
VII. DISCLAIMERS, LIMITATIONS OF LIABILITY
A. Listing Condition and History Disclaimer
ALL LISTINGS ARE SOLD “AS IS WHERE IS”
All Listings offered for sale through EXA are sold “AS IS WHERE IS,” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. EXA expressly disclaims the accuracy or completeness of any and all information provided to Members regarding Listings, whether provided in written, verbal or digital image form (“Listing Information”). Listing Information provided by EXA is for convenience only. Members shall not rely on Listing Information in deciding whether or how much to bid on a Listing purchased through EXA. Listing Information includes but is not limited to: year, make, model, condition, ACV, damage amount, damage type, drivability, accessories, mileage, odometer disclosures, Listing identification number (e.g., “VIN,” “HIN” and serial number), title, repair cost, repair history, title history and total loss history. It is the Buyer’s responsibility to verify whether a Listing has any warranty. EXA does not make and expressly disclaims any and all representations, warranties and guarantees regarding Listings sold through the Website.
EXA does not guarantee that keys are available for any Listing sold through the Website, regardless of whether keys are present in online Listing images or were present in the Listing prior to the time of purchase. Certain jurisdictions permit Listings to be sold with missing VIN plates; as a result, EXA does not guarantee that Listings are equipped with any or all VIN plates. Parts may be missing. EXA does not guarantee that Listings meet or can be modified to meet federal, state, or local emission and/or safety requirements. It is the sole responsibility of Buyer to ascertain, confirm, research, inspect and/or investigate Listings and any and all Listing Information prior to bidding on Listings.
All Members agree that Listings sold through EXA are sold “AS IS” and are not represented as being in a road-worthy condition, mechanically sound or maintained at any guaranteed level of quality. Listings may have latent, hidden, or undisclosed damage or other conditions that are not immediately apparent or discoverable. The Listings may not be fit for use as a means of transportation and may require substantial repairs at your expense.
B. Registration Laws Disclaimer
EXA does not guarantee that any Listing sold can be legally registered in any state or country, and Buyer accepts all risks associated with variations in Listing title and registration laws between states, provinces and countries that may negatively impact the marketability of Listings purchased through EXA. (For example, a Listing legally purchased on a clean title by a Buyer through EXA from a Seller located in State “A” may be required to be sold on a salvage title if Buyer transports and resells the Listing in State “B.”)
C. DMV/MVD/DOR Paperwork Disclaimers
EXA shall not be responsible for defects, errors, or omissions (i) related to motor vehicle department or department of revenue paperwork not processed by EXA or (ii) made by any motor vehicle department, department of revenue or other governmental entity.
D. Disclosure of Member Information
Each Member expressly agrees that EXA may, if and to the extent necessary to comply with applicable law, disclose information regarding EXA’s Members and regarding transactions conducted by Members through EXA if requested to do so in any judicial or administrative proceeding or by any governmental agency or regulatory authority (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise).
E. Disclaimer and Release of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL EXA BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM OR ARE RELATED TO THE SALE, DISTRIBUTION, USE OF OR INABILITY TO USE ANY LISTING, ACCESS TO THE WEBSITE OR ANY AFFILIATE WEBSITES, OR USE OF THE MEMBERSHIP SERVICES, EVEN IF EXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Members irrevocably and unconditionally waive and release their rights (if any) to recover from EXA, its directors, officers, employees, representatives, agents, parents, subsidiaries, partners, affiliates, sublicensees, members and vendors any and all damages, losses, liabilities, costs, expenses or claims therefore, whether direct or indirect, known or unknown, or foreseen or unforeseen, which may arise from or be related to the sale, distribution, use of or inability to use any Listing purchased through EXA.
Members agree to indemnify, defend and hold EXA harmless from any and all damages, losses, liabilities, costs or expenses (including attorney’s fees) arising from claims made by a Member related to the sale, distribution, use of or inability to use any Listing purchased through EXA.
Members who are California residents waive California Civil Code §1542, which reads: “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.”
Members hereby unconditionally release EXA from any and all liability whatsoever for any losses or damages (whether direct or indirect, known or unknown, foreseen or unforeseen, and including attorneys’ fees) arising out of or in any way related to any of the following:
- Your failure or refusal to strictly comply with this Agreement and any and all of EXA’s rules and policies;
- Buyer’s failure or refusal to notify EXA of any problem with or condition of any Listing before it is removed from Seller’s possession;
- Your failure or refusal to keep your Account login information confidential;
- The termination or suspension of your Account;
- Your cancelation of your Account;
- EXA’s decision to charge your credit card to pay any unpaid fees;
- The postponement, cancelation or withdrawal of any Listing auction on the Website;
- Your failure or refusal to know the type and amount of applicable fees and charges (including auction fees and other applicable fees and charges related to your use of the Membership Services);
- Your failure or refusal to pay any amount due within the time period specified (including any Listing purchase price, auction fees, and other applicable fees and charges related to your use of the Membership Services);
- Buyer’s failure or refusal to remove any Listing from Seller’s possession within the time period specified;
- Seller’s failure or refusal to deliver a Listing purchased by Buyer to Buyer’s possession within the time period specified;
- Seller’s refusal to release any Listing or Listing title or ownership documents or otherwise transfer possession or ownership of any Listing to Buyer due to any unpaid fees or Buyer’s violation of this Agreement;
- Any damage, removal or replacement of items, or title discrepancy occurring with respect to a purchased Listing after the Buyer has purchased the Listing, but before Buyerhas retrieved the Listing;
- Seller’s refusal to release or transfer possession or ownership of any Listing to anyone other than Buyer;
- Your failure or refusal to transfer ownership or register any Listing in your name (as applicable);
- EXA’s refusal to issue you a refund for any reason;
- EXA’s declaration that any Listing is “abandoned” due to Buyer’s failure or refusal to remove the Listing from Seller’s possession within the time specified;
- Seller’s election to relist a purchased Listing after Buyer fails to make payment for the Listing within the time specified;
- The sale or other disposition of any abandoned Listing;
- Any damage to or loss of a purchased Listing due to acts of theft or vandalism, weather, acts of God, or any other reason that occurs after the end of an auction but before the Listing is removed from the Seller’s possession;
- Buyer’s failure or refusal to comply with this Agreement or any applicable law or regulation when removing a Listing from Seller’s possession;
- Buyer’s Listing after it is purchased through the Website;
- Your use of any service provided by any third party (including any of EXA’s recommended service providers); and
- Your access to the Website or any affiliate website, or use of the Membership Services that contravene this agreement or any applicable law;
- EXA’s denial or rejection of any request or demand by you that does not comply with this Agreement.
You acknowledge and agree that under this general release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the scope of this general release to include only those claims that you may know or suspect to exist at the time you agree to this release. Additionally, you hereby agree to pay all reasonable costs and expenses (including court fees, attorney fees, travel expenses, and other related costs and expenses) incurred by EXA in connection with EXA’s efforts to obtain a stay or dismissal of any Claim (as defined in Section VIII.B) pursuant to the general release under this section.
F. General Indemnification of EXA
For the purposes of this Section, “Loss” means any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including interest which may be imposed in connection therewith), expenses of investigation, reasonable fees, costs and disbursements of attorneys, counsel, and other experts (at trial and on any appeal), and cost to EXA of any funds expended by reason of the occurrence of any Third Party Claim (as defined in this Section) or incurred in imposition thereof or in enforcing the provisions of this Agreement. To the maximum extent permitted by law, you hereby agree to indemnify EXA and its directors, officers, employees, representatives, agents, parents, subsidiaries, partners, affiliates, sublicensees, members, vendors and any person claiming by or through any of them, and their respective successors, heirs, and assigns against any and all Losses arising out of, resulting from, or related to any claim brought by a third-party related to any item listed in Section VII.E.
G. Limitation of Damages
Members agree that, to the extent permitted by applicable law, EXA shall not under any circumstances have any liability whatsoever to a Member or any third-party for any damages or losses of any kind (known or unknown, foreseen or unforeseen, direct or indirect) arising out of or in any way related to any disclaimer provided in this Agreement or on the Website. Members agree that, to the extent permitted by applicable law, EXA shall not under any circumstances have any liability whatsoever to a Member or any third-party for any (a) indirect, incidental, special, consequential, or punitive damages, (b) loss of use, data, opportunity, goodwill, reputation, profit, or revenue, or (c) costs or expenses (including attorneys’ fees) for any Claim (as defined in Section VIII.B) not amounting to a willful or intentional wrong.
Regardless of the previous paragraphs, Members agree that, to the extent permitted by applicable law, if EXA is found liable in any Claim (as defined in Section VIII.B), EXA’s total liability to the Member or to any third-party shall not exceed the amount of any fees (excluding the purchase price of any Listing, or any other fees charged by any third-party) paid by the Member to EXA related to the transaction or Listing giving rise to the liability. If no such fees were paid by the Member to EXA, EXA’s total liability to the Member or any third-party for any Claim (as defined in Section VIII.B) shall not exceed $500.00 USD.
A. Governing Law, Jurisdiction
This Agreement shall be governed by the laws of the State of Wyoming without reference to the principles of conflicts of law. In the event that the agreement to arbitrate under Section VIII.B is found not to apply to any particular Member or to any particular Claim, Members hereby irrevocably submit to the jurisdiction of the courts of the State of Wyoming and the courts of the United States for Wyoming.
B. Binding Arbitration
You agree that any claim, demand, controversy, dispute, or cause of action arising out of or in any way concerning, relating, or referring to this Agreement, your Account, your relationship with EXA, your use of or inability to use the Membership Services, or any Listing you bid on or purchase using the Membership Services (each, a “Claim”) shall be resolved exclusively by binding arbitration according to the then-existing rules of the American Arbitration Association (“AAA”). Such proceedings will be governed by and in accordance with substantive Wyoming law and shall be decided by a panel of arbitrators or an arbitrator located in Wyoming.
The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.
You agree that any Claim shall be resolved exclusively through final and binding arbitration, rather than in state or federal court. You and EXA both agree that each waives any right to a jury trial under this Agreement.
C. Attorney Fees
Except as specifically provided under this Agreement, the AAA rules, or by applicable law, the parties acknowledge and agree that (a) each party shall bear its own costs, expenses, and attorneys’ fees incurred in connection with any Claim, and (b) any right to an award of costs and expenses (including attorneys’ fees) under Section VII.E or elsewhere in this Agreement is limited to the specific circumstances set forth under such section and is not intended to provide any party with a general right to an award of costs and expenses (including attorneys’ fees), even if such party is the “prevailing party” in connection with any Claim.
If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.
E. Third-Party Services & Ads
F. Third Party Affiliate Marketing
EXA participates in affiliate marketing and may allow third-party affiliate links to be encoded on the Website or through the Membership Services or Digital Services. This means that we may earn a commission when you click on or make purchases via third-party affiliate links. A list of those affiliate websites, which this list may be updated from time to time can be found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement,
G. Notice to California Users
Under California Civil Code Section 1789.3, California users of the Member Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
The “How It Works” Process, Services and FAQ Page(s) of the Website found at: https://ExclusiveAuctions.com/ are incorporated herein by reference and are hereby made a part of this Agreement, and with this Agreement, constitutes the entire agreement between the parties concerning this Agreement and the subject matter contained herein. No further warranties, representations, or other promises, oral or written, have been made or are made part hereof.