Introduction
Welcome to EmeraldXchange.com User Agreement (the "Agreement"). This Agreement contains terms and conditions applicable to your use of the auction services we advertise, as well as your participation in auction events conducted by sellers directly to buyers.
By using the services on any EmeraldXchange.com website (i.e., EmeraldXchange.com and any other related websites where this Agreement appears), you are agreeing to the following terms and conditions, including those available by hyperlink, with EmeraldXchange.com , as well as our subsidiaries and affiliates ("EmeraldXchange.com ").
Before you may become a member of EmeraldXchange.com, you must read and accept all of the terms and conditions in, and referenced by, this Agreement and our Privacy Policy (whether such terms and conditions are contained in the primary document itself or are hyperlinked to related documents). We strongly recommend that, as you read this Agreement, you also access and read all linked information, as well as the listing of EmeraldXchange.com branded websites, or sites that we operate, may also be governed by separate user agreements and privacy policies that you should also read. All links to escrow agents and certified appraisal services should be read and explored by the user.
You acknowledge and agree that we may amend this Agreement at any time, and from time to time, by posting the amended terms on our website. Unless, and only to the extent, expressly stated to the contrary herein, all amended terms and conditions shall automatically be effective on a prospective basis once they are posted on our site. Accordingly, you are encouraged to periodically review our terms of use for any such changes and/or amendments.
EmeraldXchange.com Agreement
1. Eligibility. Each seller that conducts an auction will have its own eligibility requirements that must be met in order for you to participate in that auction. You may be required to apply for and obtain approval in order to bid on a specific auction. Approval to participate in one auction does not guarantee approval to participate in any other auction, conducted either by the EmeraldXchange.com, or another EmeraldXchange.com affiliate. EmeraldXchange.com has sole and absolute discretion to refuse to approve your eligibility for any auction.
2. Fees.EmeraldXchange will charge a listing fee, additional featured item listing fee and as well as shipping, handling, and other fees. These fees are subject to change depending upon the EmeraldXchange current rates and the position on the page for the item for sale and time on the site. Discounts may be applied for longer listings and bulk listings on the site.
3. EmeraldXchange.com is Only a Venue for Sellers or an auction house to market directly to buyers and makes its revenues from advertising said items and other banner advertising.
(a) Services. We are not an auction house and are not conducting the auctions. Our service allows you to participate in auctions conducted by the Seller of items listed. We are solely a passive conduit to facilitate communication between you and the seller. We reserve the right in our sole and absolute discretion to change some or all of our services at any time.
(b) Control. We have no control over the quality, safety, or legality of the items advertised, the truth or accuracy of the listings, or the ability of the Seller to sell and the ability of buyers to buy items. We also do not ensure or guarantee that a buyer or seller will actually complete a transaction.
(c) Compliance with Laws. You acknowledge and agree that the use, purchase, distribution, promotion, advertising, and sale of certain products are subject to federal state, and local regulations, including, but not limited to, firearms, Indian artifacts, recalled products, children's products, alcoholic beverages, and currency. You further acknowledge and agree that EmeraldXchange.com ' role with respect to the sale of products is limited to providing a conduit through which a prospective purchaser is able to participate in an auction. EmeraldXchange.com does not review or evaluate the products auctioned or offered for sale, or verify the descriptions given or claims made, by seller or person conducting the auction, regarding the products. You expressly represent that you shall comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations relating to your use, purchase, and distribution of any products that you bid upon or purchase through EmeraldXchange.com (hereinafter, the "Regulations"), including, but not limited to, (i) the Gun Control Act of 1968 and all regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (collectively, the "Firearms Regulations"), (ii) the Consumer Products Safety Improvement Act of 2008 and all regulations promulgated by the U.S. Consumer Products Safety Commission, and (iii) the Indian Arts & Crafts Act of 1990 and any additional laws and regulations applicable to the sale of Indian arts and crafts. You shall at all times defend, indemnify and hold EmeraldXchange.com, its shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venture partners, and successors and assigns, harmless from, and against, any and all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees) of any nature or kind, arising under or resulting from: (i) your use, purchase, or distribution of any products in violation of any Regulations; (ii) your use of EmeraldXchange.com in connection with the purchase of any products subject to any Regulations; and (iii) your alleged or actual violation or breach of any Regulations.
(d) Release. Since we are not involved in the actual transactions between buyers and sellers or auction house, in the event that you have a dispute with a seller or auction house, you hereby release EmeraldXchange.com (and our shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venturers, and successors and assigns) from causes of action, suits, claims, demands, judgments, 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.
4. Sellers and auction houses. The seller will list available items on which you may bid. The dates and times, as well as the number, character, and order and schedule of the items to be sold or auctioned, are set by the seller and are subject to change without notice. Individual lots and items may be modified or changed at any time. Some lots and items that are made available on the site will not be available if sold. We do not control the information that is provided by the seller, which is made available through our system. We also do not guarantee that the seller maintains proper licenses or complies with all applicable laws, rules, and regulations.
5. Bidding, Buying and Conditions of Sale.The terms and conditions for participation in each auction, including how bids are accepted, rules governing absentee bids, bid increments, bid retraction and cancellation, the conditions the buyer must meet to purchase an item, as well as the specific conditions of sale (such as warranties, shipping costs, insurance, and the like) may change for each auction at the sole discretion of the seller or auction house. The Seller is required to post its terms and conditions and to maintain such terms throughout the auction period. You agree to be bound by those bidding terms and conditions of sale by agreeing to this Agreement. This Agreement, in addition to those sellers terms and conditions, governs your bidding activity, as well as your participation in each auction. The seller or auction house acts as an auctioneer and makes the sole, final determination with respect to bidding on the item, the sale of the item, and the resolution of any disputes.
6. Video and Audio. Any audio or video aspects of an item for sale are for entertainment purposes only.
7. Use of Images. EmeraldXchange.com has the right to use, on its website and in advertising and promotional materials, images (including photographic images) of items being sold or that have been sold on its website, including images of items which have been purchased through the site.
8. Using EmeraldXchange.com. While using EmeraldXchange.com, you shall not: (a) violate any laws, rules, regulations or third party rights; (b) use our sites or services if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our sites; (c) fail to deliver payment on any item that you purchased through our sites; (d) manipulate the price of any item or interfere with other user's listings; (e) post false, inaccurate, misleading, defamatory, or libelous content (including personal information); (f) distribute or post spam, chain letters, or pyramid schemes; (g) distribute viruses or any other technologies that may harm EmeraldXchange.com, our sites, or the interests or property of EmeraldXchange.com users; (h) copy, modify, or distribute content from our sites and/or violate EmeraldXchange.com copyrights and trademarks; or (i) harvest or otherwise collect information about users, including, without limitation, email addresses, without their consent. Nor shall you encourage or assist any third party to engage in any of the prohibited conduct set forth above. Any violation of this provision shall constitute a material breach of this Agreement and, under such circumstances, we will have the right, in our sole and absolute discretion, to prohibit your access to our sites and to suspend or terminate your right to use our services.
9. Abusing EmeraldXchange.com will work to keep our sites and services working properly and safely. Please report problems, offensive content, and any policy violations to us. (b)Without limiting our remedies, it is understood that we may limit, suspend, or terminate our services and user accounts, prohibit access to our sites, delay or remove hosted content, and take technical and legal steps to keep users off our sites if we believe that they are misusing, abusing, or interfering with the provision of our services, engaging in unlawful conduct, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a long time.
10. Access and Interference. The sites contains robot exclusion headers. Much of the information on the sites is updated on a real-time basis and is proprietary or is licensed to EmeraldXchange.com by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the sites for any purpose without our express written permission. Additionally, you agree that you will not: (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the sites without the prior, express written consent of EmeraldXchange.com and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper working of our sites or any activities conducted on the sites; or (d) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the sites.
11. Privacy. Any information you provide to us, and your use of information available on our websites, is governed by our Privacy Policy. Any information you provide to the Seller or other third parties is governed by their respective privacy policies. We do not sell or rent your personal information to third parties for their marketing purposes without your express consent. We use your information only as described in the EmeraldXchange.com Privacy Policy. We consider protection of our users' privacy as a high priority. 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. We use third parties to verify and certify our privacy security methods. For a complete description of how we use and protect your personal information, please review the EmeraldXchange.com Privacy Policy. If you object to your information being transferred or used in this way, please do not use our services.
12. Intellectual Property/Restrictions on Use. We reserve all rights with respect to the design and content of our websites. In particular, you may not misappropriate the design or content of our sites and you may not alter or deface such design or content in any way. Nothing on our websites grants any license with respect to such design or content. All trademarks, service marks, trade names, logos, graphics, articles and other materials on our sites are protected by United States and foreign copyright, trademark and other applicable laws. In particular, all trademarks, service marks, trade names and logos displayed on our sites are proprietary to EmeraldXchange.com, its affiliates, or third-party owners and our websites grant no license thereto. You acknowledge that you have read, and will at all times comply with, EmeraldXchange intellectual property statement.
13. Indemnity. You will defend, indemnify and hold EmeraldXchange.com, its shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venture partners, and successors and assigns, harmless from, and against, any and all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees), sought by any third party and which results from, or arises out of, your breach of this Agreement, your unlawful actions or conduct, or your violation of the rights of any third party.
14. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
15. No Warranty. WE AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT BIDS WILL BE RECEIVED BY THE AUCTION HOUSE OR INFORMATION REGARDING CURRENT PRICE WILL BE TRANSMITTED IN A TIMELY FASHION. NOR DO WE GUARANTEE THE PERFORMANCE OF ANY OBLIGATIONS BY ANY SELLER OR AUCTION HOUSE. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states' laws may not allow a disclaimer of implied warranties in certain circumstances, in which case the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you also may have other legal rights which vary from state to state.
16. Liability Limit. IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, OUR SITES, OUR SERVICES, THE FAILURE OF ANY BID OR PRICING INFORMATION TO BE TRANSMITTED OR RECEIVED BY YOU OR THE AUCTION HOUSE IN A TIMELY MANNER, THE INTERRUPTION OF ANY DATA TRANSMISSION, OR THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.00. Some states' laws may not allow a limitation of liability in certain circumstances, in which case the foregoing limitation may not apply to you.
17. Notices. Any notice, demand, request or other communication which you may desire or be required to give to EmeraldXchange.com hereunder shall be in writing and shall be given by certified mail, return receipt requested (with postage prepaid), or by Federal Express or other similar overnight delivery service (with fees prepaid), to EmeraldXchange.com, 160 West Camino Real # 308 Boca Raton Florida 33432, or at any other address that we may designate in writing in the future. Any notice, demand, request or other communication which we may desire or be required to give to you hereunder shall be in writing and shall be given by email to the email address you provided to EmeraldXchange.com during the registration process, or by certified mail, return receipt requested (with postage prepaid), or by Federal Express or other similar overnight delivery service (with fees prepaid), to you at the address you provided to EmeraldXchange.com during the registration process. All notices given by e-mail shall be deemed given as of 5:00 P.M. eastern standard time on the business day following the day of transmission. All notices given by mail shall be deemed to have been given three (3) business days after mailing and all notices delivered by overnight delivery service shall be deemed given when delivered.
18. Force Majeure. No party shall be liable for any failure or delay in performing any obligation under this Agreement that is due to a Force Majeure event, such as Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service). If a Force Majeure event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure event on the performance of this Agreement. However, this provision does not excuse your obligation to pay for services actually received.
19. Arbitration. If a dispute, controversy, claim or cause of action arises out of, or in connection with, this Agreement or any breach or alleged breach thereof (the "Dispute"), and if the Dispute cannot be settled through direct discussions, we mutually agree to endeavor first to settle the Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures then in effect (or under any other form of mediation mutually acceptable to the parties involved) before resorting to arbitration. Any unresolved controversy or claim relating to the Dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect (or under any other form of arbitration mutually acceptable to the parties involved), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If all parties to the Dispute agree, a mediator involved in the parties' mediation may be asked to serve as the arbitrator. The mediation and arbitration, if any, shall take place in the City of Boca Raton, State of Florida, and County of Palm Beach (unless another location is mutually agreed to by the parties involved). Any award rendered shall be final and conclusive upon the parties. The costs and expenses of the mediation and arbitration shall be borne equally by the parties, provided, however, that the arbitrator shall award to the prevailing party, if any, the reasonable costs and attorneys' fees incurred by the prevailing party in connection with the mediation and arbitration. If the arbitrator determines that a party was the prevailing party on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the reasonable costs and attorneys' fees incurred by the prevailing party in connection with the mediation and arbitration. In the event this mediation/arbitration provision is found to be completely unenforceable or inapplicable for any reason, then any dispute, controversy, claim or cause of action arising out of, or in connection with, this Agreement or any breach or alleged breach thereof, shall be brought in the state or federal courts in the City of Boca Raton, State of Florida, and County of Palm Beach, and you irrevocably consent and submit to the jurisdiction of such courts for the purpose of litigating any such action and waive trial by jury. The prevailing party in such action shall be entitled to recover its reasonable costs and attorneys' fees incurred in connection therewith, and if it is determined that a party was the prevailing party on some but not all of the claims and counterclaims, such party may be awarded an appropriate percentage of the reasonable costs and attorneys' fees it incurred in connection therewith.
20. General. (a) This Agreement constitutes and sets forth the entire agreement and understanding of the parties pertaining to the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements, understandings, undertakings, negotiations, promises, discussions, warranties or covenants that are not specifically contained herein; (b) The headings, sections, or titles of the various paragraphs of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication or intention, limit, define, extend or affect the meaning or interpretation of this Agreement or the specific terms or text of the section so designated. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural and vice versa, whenever, and as often as may be, appropriate; (c) This Agreement shall be governed in all respects, whether as to validity, construction, interpretation, capacity, performance or otherwise, by the laws of the State of Florida, without regard to principles of conflicts of laws; (d) If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, then such provision shall be deemed stricken here from and the remainder of this Agreement shall remain at all times in full force and effect. Such invalid or enforceable provision shall, to the extent legally permitted, be replaced by a valid and enforceable provision that comes closest to the parties' intent underlying the invalid or unenforceable provision; (e) It is understood that any accrued but unpaid financial obligations, and any other terms related to such financial obligations, shall survive the expiration or termination of this Agreement; (f) No waiver of any breach, privilege or provision of this Agreement will be construed as a waiver of any rights or remedies arising from any other or future breach, privilege or provision; (g) We may, in our sole discretion, assign or otherwise transfer this Agreement to a third party.
21. Future Terms. EmeraldXchange.com may amend, modify, add or remove any of these terms and conditions at any time, and from time to time. If we do so, we will post such changes on this page. IF ANY FUTURE CHANGES TO THESE TERMS AND CONDITIONS ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, AND OF ANY SUCH CHANGES.
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