HomeMy WebLinkAbout2014-055Public Surplus
Seller Agreement
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Public Group, LLC, a Utah limited liability company that sometimes does business as "Public Surplus"
("Public Surplus", "We" "Us"), provides online bid boards, auctions and stores and facilitates other
online transactions on www publicsurplus.com and other websites (collectively the "Site") for
governmental bodies and others ("Sellers' or "You") to sell surplus goods and other property and assets
to buyers of all types ("Buyers"). As a condition to accessing and using the Site and receiving the benefit
of Public Surplus' services provided through the Site and otherwise (the "Services"), Public Surplus
requires that You review and accept this Seller Agreement (this "Agreement").
BY REGISTERING TO USE THE SITE AND THE SERVICES, YOU ACCEPT AND AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT WITH PUBLIC. SURPLUS. IF YOU DO NOT AGREE TO ACCEPT THIS
. AGREEMENT, YOU MAY NOT ACCESS THE SITE OR OTHERWISE USE THE SERVICES OR THE SITE. YOU
AGREE THAT YOU HAVE RECEIVED GOOD AND VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING
INTO THIS AGREEMENT.
1. ACCESSING OUR SITE AND USING OUR SERVICES
1.1. Eligibility. You may only use our Services if You are at least 18 years of age, are mentally competent,
and can form legally binding contracts under applicable law. You may not assign or transfer Your
account or user identification to any other party.
1.2. Seller Affirmations in Connection with Offers and Sales.. In using our Site and Services, You agree as
follows:
(a) No contingency to Your sales offer exists other than those stated in the listing at the time of sale.
(b) You will be responsible for delivering property sold using Your username and password.
(c) You are fully capable of transferring title to the property offered for sale in a timely manner.
(d) You are a real person or entity, with a verifiable address, telephone number and email address as
provided to Us.
(e) You are dealing in good faith and are not attempting to defraud, cheat, or wrong Public Surplus or
any Buyer.
1.3. Accuracy and Nature of Your Information. You are solely responsible for all information You provide
to Us or other users on our Site ("Your Information"). We act as a passive conduit for the online
distribution and publication of Your Information. You agree that Your Information (i) will not be false,
inaccurate, or misleading; (ii) will not violate any law, statute, ordinance or regulation; and (iii) will not
be defamatory, trade libelous, unlawfully threatening or unlawfully harassing. In providing Your
Information, You grant to Us a non-exclusive, worldwide, perpetual, irrevocable, royalty -free, sub -
licensable (through multiple tiers) right to use and exercise the copyright, publicity, and database rights
You have in Your Information for purposes of facilitating the communications and transactions made
through our Site.
1.4. Fees. Public Surplus charges no fees for You to register to list property for sale on the Site. However,
You will owe a transaction fee for each sale through the Site. Other fees may apply for other Services as
shown on the Site. Our fees may change from time to time. You are responsible for paying all fees and
any applicable taxes associated with transactions effected through the Site in a timely manner and with
a valid payment method. If Your payment method fails or Your account is past due, We may collect fees
owed using other collection mechanisms.
1.5. No Disruption to Our Site or Services. You agree not to attempt any action that may disrupt our Site
o r our Services. Among other th ngs, You agree that (i) Your Information and all other input on our Site
will not contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other
software, devices, files or routines that may damage, interfere with, copy, reproduce, intercept or
e xpropriate any system, data or personal information, (ii) You will not create liability for Us or cause Us
to lose (in whole or in part) the services of our Internet Service Providers or other vendors; (iii) You will
n ot use our Site to obtain e-mail addresses for bulk e-mail solicitations or otherwise; (iv) You will not
reverse engineer any of our Services, programs, or infrastructure; (v) You will not use any robot, spider,
other automatic device, or manual process to monitor, copy or reproduce our web pages or the content
contained herein without our prior express written permission; and (vi) You will not take any action that
imposes an unreasonable or disproportionately Targe load on our infrastructure.
1.6. User Password. During the registration process, You will select a username and a password. You
agree that You are solely responsible for preserving the confidentiality of Your username and Your
password, and You will be responsible for all activities and charges related to the use of Your username
and password, including unauthorized use. You agree not to furnish Your username, password or other
information to any other party for use of the Site and the Services. You agree to notify Public Surplus
immediately of any unauthorized use of Your personal password or username and any other breach of
security regarding the Services.
1.7. Obligation to Ensure Compliance with this Agreement. You agree that You will take all steps
n ecessary to ensure that Your employees, contractors, and agents comply with the covenants terms ,
and provisions of this Agreement, including but not limited to the covenants contained in sections 1.5
and 7.8 of this Agreement. You acknowledge that You will be responsible and liable for any damages,
claims, liabilities and expenses of any kind suffered by Public Surplus or any of Our affiliated companies
arising from any and all actions or failures to act taken by any party using Your username and password
or taken by Your employees, contractors, or agents, whether or not in accordance with the terms or
intent of this Agreement.
1.8. Consent to E -Mail Correspondence from Public Surplus. You hereby agree that We may send future
correspondence to You via electronic mail ("e-mail") that notifies You of sales opportunities or other
matters that We believe may interest You. Any e-mail correspondence to You (i) will be clearly and
conspicuously identified as sent by Public Surplus; and (ii) will clearly and conspicuously display a
functioning return e-mail address to enable You to reply to Public Surplus.
1.9. Electronic Signature. You are notif ed by this statement that Your consent to these terms and
conditions by checking the box indicat ng Your agreement to be bound to these terms, meets the
requirements of Section 101(c) (1) (C) (ii), the Consumer Consent Provision, of the Electronic Signatures
in Global and National Commerce Act (ESIGN). You may print these terms and conditions but they are
subject to change by Us. Changes to the terms and conditions will be effective from the time they are
placed on our Site, in the terms and conditions section of the Site, or any other section where they may
appear.
2. SELLER UNDERSTANDINGS AND OBLIGATIONS
In listing or offering items for sale on our Site or otherwise accessing our Site and Services in any way,
You represent, warrant and agree to the following:
2.1. Shipment. At the close of an auction in which You have a winning bidder, You agree to make the
property immediately available for pickup and/or shipment.
2.2. Deposits. We reserve the right to require an earnest money deposit prior to or during the listing on
certain items at our sole discretion. Any such deposits will be retained and applied in Public Surplus'
discretion.
2.3. Legal Compliance. You will comply with all applicable laws, statutes, ordinances and regulations
regarding Your use of our Site and Services and the offer and sale of property. Offering property for sale
with the intent not to complete the transaction, causing disruption to the sale process on our Site, and
not completing transactions will be considered in most jurisdictions as fraud and may be prosecuted to
the fullest extent of the law.
3. PAYMENT PROCESSING SERVICES
3.1. Payment Processing Services Under Separate Agreement with Affiliate. In the event that You elect
to have Our affiliate, Public Processing, LLC a Nevada limited liability company ("Public Processing"),
receive and process on Your behalf payments made by Buyers (the "Processing Services'), You agree to
the provisions set forth in this Agreement and in a separate agreement with Public Processing.
4. LIABILITY LIMITATIONS AND RELEASES
4.1. Absence of Liability. You will not hold Public Surplus responsible for actions or inactions of Buyers or
other users, including the failure of a Buyer to take delivery or make payment for an item. You
acknowledge that We are not a traditional auctioneer and We are not the Buyer of property sold
through our Site. Instead, the Site provides a marketplace for users to offer, sell, and buy items of all
kinds in a variety of pricing formats and venues. We are not involved in the actual transaction between
You and Buyers. We have no control over and do not guarantee such things as the quality, safety or
legality of items advertised, the truth or accuracy of listings, the ability of Buyers to purchase and make
payment for items, or the completion of a sale by You, even upon a successful bidding and acceptance
process. Without limitation of the generality of the foregoing, We will not be liable for lost profits or any
special, incidental or consequential damages arising out of or in connection with the Site, our Services,
or this Agreement.
4.2. 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. PUBLIC SURPLUS 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. PUBLIC SURPLUS 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. PUBLIC SURPLUS MAKES NO
WARRANTY THAT SALES WILL BE COMPLETED THROUGH THE SITE OR THAT THE SITE OR SERVICES WILL
MEET YOUR REQUIREMENTS OR EXPECTATIONS, EXPRESSLY DISCLAIMS ANY WARRANTIES OR
GUARANTEES THAT BY LISTING THE LISTED ASSETS, THE LISTED ASSETS WILL BE SOLD. PUBLIC SURPLUS
MAKES NO WARRANTY OF ANY KIND REGARDING ANY LISTED ASSETS OR ANY TRANSACTIONS ENTERED
INTO THROUGH THE SERVICES. PUBLIC SURPLUS EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR
WARRANTY OF ANY LISTED ASSETS SOLD ON OR THROUGH THE SITE OR THE SERVICES, AND ANY
RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY BUYER OR OTHER
USER.
4.3. Interruption of Service. Public Surplus is not responsible for any damages or losses related to any
system errors or interruptions affecting its Site and the processing of any solicitations, requests, offers,
bids, auctions, or sales. You understand and acknowledge that the Site and our Services may be
u navailable unexpectedly.
4.4. Third Party Links. The Site may contain links to other websites or resources for Your convenience in
locating related information and services. You acknowledge and agree that Public Surplus 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 inclusion of any link on the Site
does not imply that Public Surplus endorses the linked site. You use the links at Your own risk.
4.5. Release. If You have a dispute with a Buyer or any other Seller or user of our Site, You release Us,
(and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands
and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or
in any way connected with such disputes. You will settle all disputes with other users of our Site without
o ur involvement, and to the extent allowed by law, We will have no liability whatsoever arising from
communications made or transactions effected through our Site. If You are a California resident, You
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 or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with the debtor."
4.6. Indemnity. To the extent allowed by law, You agree to indemnify, defend and hold harmless Public
Surplus from and against any and all debts, liabilities, obligations, claims, suits, judgments, damages,
expenses, including attorney's fees, and demands, made or incurred by any third party arising out of
Your breach or alleged breach of this Agreement or Your violation or alleged violation of any applicable
law or any rights of a third party.
5. PRIVACY
We do not sell or rent Your personal information to third parties for their marketing purposes without
Your explicit consent. We use Your information only as described in Public Surplus' Privacy Policy. We
✓ iew protection of privacy as a very important community principle We store and process Your
information on computers located in the United States that are protected by physical as well as
technological security devices. You can access and modify the information You provide Us. For a
complete description of how We use and protect Your personal information, see Public Surplus' Privacy
Policy. If You object to Your Information being transferred or used in this way please do not use our
services.
6. TERMINATION OR SUSPENSION
Public Surplus reserves the right to suspend or terminate Your access to our Site and Services for any
reason or no reason and without notice. Among other reasons, We may suspend or terminate Your
access to our Services if (a) You breach any ofthe provisions of this Agreement; (b) We suspect that You
have engaged in fraudulent activity of any kind in connection with our Site; (c) You manipulate the price
of any item or interfere with another user's communications or transactions; (d) We are unable to verify
or authenticate any information You provide to Us; or (e) We believe that Your actions may cause legal
liability for You, our users or Us.
7. MISCELLANEOUS
7.1. Changes to Site and Services. Public Surplus reserves the right, in its sole discretion, to modify,
suspend or terminate any aspect of our Site and Services, inc!ud ng, but not limited to, content, auction
features, news and information, and product categories without notice.
7.2. Record Keeping. Public Surplus cannot guarantee the preservation or maintenance of records
relating to historical auction transactions and bidding activity and encourages You to keep individual
records and an accounting of all activity conducted through our Site.
7.3. Notice and Communication Unless stated otherwise, all notice and communication with You will be
provided by e-mail to the e-mail address provided by You in their registration application or via posting
on the Site. Notice will be deemed to have been provided 24 hours after the e-mail was transmitted by
Public Surplus or the information was posted on the Site.
7.4. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance
with the laws of the State of Florida. Any right to trial by jury with respect to any claim, action, suit or
proceeding arising out of this Agreement or any of the matters contemplated hereby is waived. You
further agree to the exercise of personal jurisdiction in the State of Florida in connection with any
dispute or claim involving Public Surplus.
7.5. Severability. If any provision of this Agreement is held by a court of competent Jurisdiction to be
invalid or unenforceable, then such provision will be enforced to the maximum extent permissible and
the remainder of this Agreement will continue in full force and effect.
7.6. Waiver. The failure of Public Surplus to exercise or enforce any right or provision of this Agreement
will not be deemed a waiver of such right or provision in the future.
7.7. Independent Contractor Relationship. The relationship between You and Public Surplus is that of an
independent contractor. No agency, partnership, joint venture or franchise relationship is implied,
intended or created by this Agreement.
7.8. Intellectual Property. Allinventions, know how, improvements, discoveries, methods processes,
concepts, designs, ideas, prototypes, samples, drawings, documents, blueprints, specifications,
computer or intellectual property programs, methods of doing business, data in Public Surplus'
databases (including but not limited to databases containing bidders, Buyers and other users of the Site
and their names and contact information), systems, copyrights, trademarks trade names, software
and/or other works conceived of and/or reduced to practice or writing or otherwise relating in any way
to the Site or the Services are the exclusive intellectual property of Public Surplus (the 'Public Surplus
IP"). In addition, all content contained on the Site is Public Surplus IP that is copyrighted material, and
Public Surplus retains and reserves all rights and interests in the content. Public Surplus IP may be
created by one of more of Public Surplus employee(s) alone or jointly with a user or users of the Site or
Services arising from the users use and development of the Services or as a result of feedback regarding
the Site or Services ("Feedback"). All right, title and interest in any Public Surplus IP will belong to Public
Surplus and will be subject to the conditions of this Agreement. You hereby irrevocably assign to Public
Surplus all right, title, and interest You may acquire in any Public Surplus IP, whether or not generated
from Feedback. Public Surplus may, at its option, file an application for intellectual property protection
for Public Surplus IP. If any such Public Surplus IP is created with Your participation or Feedback, You
agree to cooperate with Public Surplus to assure that such application(s) will cover, to the best of Your
knowledge, all related assets, including all features of commercial interest and importance. Public
Surplus IP is the sole and exclusive property of Public Surplus and may not be used, copied, reproduced,
modified, published, transmitted, distributed, displayed, or sold, or derivative works created, without
the prior written consent of Public Surplus. Furthermore, You may not provide access to, or information
from, the Site to any other party without Public Surplus' prior written consent.
7.9. Copyrights. The Site may contain copyrighted, trademarked, or other proprietary materials that
belong to third parties and are used with the owner's permission. You agree not to copy, modify,
distribute, or create any derivative work from such materials without prior written consent from the
owner. You will indemnify and hold Us harmless, as provided for previously in this Agreement, from any
claim or demand made by a third party due to or arising out of your violation of any law or rights of a
third party.
7.10. Trademarks. The Site and Public Surplus' tradenames, domain names and logos found on the Site
are trademarks or service marks of Public Surplus. No display or use of such marks may be made without
the express written permission of Public Surplus. All other designated trademarks or service marks are
the property of their respective owners.
7.11. Assignment. This Agreement may not be assigned by You or by operation of law to any other
person, persons firms or corporations without the express written approval of Public Surplus. However,
You agree that this Agreement and all incorporated agreements may be assigned and delegated by
Public Surplus in our sole discretion to any party and will be assigned and delegated automatically in the
event of a merger of Public Surplus with another party.
7.12. Entire Agreement. This Agreement constitutes the entire agreement between You and Public
Surplus, and supersedes any previous agreements, whether oral or in writing, between You and Public
Surplus relating to the subject matter hereof. Public Surplus may, at its sole discretion, remove or
change any aspect of this Agreement at any time by providing notice to You.
7.13. Survival. The warranties, covenants and representations of the parties to this Agreement will
survive termination of this Agreement.
7.14. Headings. Headings are for reference purposes only and in no way affect the interpretation of this
Agreement.
7.15 Oral Statements by Representative. Any oral statement or representation by any representative of
Public Surplus changing or supplementing this Agreement or any terms of bidding or sale on the Site, is
7.14. Headings. Headings are for reference purposes only and in no way affect the interpretation of this
Agreement.
7.15 Oral Statements by Representatives. Any oral statement or representation by any representative
of Public Processing changing or supplementing this Agreement or any terms of bidding or sale on the Site,
is unauthorized and ineffective and confers no right on You and may not be relied upon by You No
interpretation or purported amendment or change of any provision of this Agreement, including applicable
performance requirements, is binding on Public Processing unless agreed to, in writing by Public Processing.
SELLER:
INDIAN RIVER COUNTY
B022,04 • 4011 atj
Peter D. O'Bryan, Chairman
osephBaird, County Administrator
CC Apbroved: April 15, 2014
APPROVED AS TO FORM AND -LEG L S FFICIENCY:
By:
ylan Reingold, County Attorney
Jeffrey R. Smith, Clerk of Court and Comptroller
Attest:
(SEAL)
Deputy Clerk
Designated Representative:
Name. Jennifer Hyde
Title. Purchasing Manager
1800 27th Street
Vero Beach, FL 32960
(772) 226-1575
Facsimile. (772) 770-5140
Public Processing, LLC:
Bv:
Attest
(Contractor)
(CORPORATE SEAL)
Address for giving notices:
Po 12,014674
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