HomeMy WebLinkAboutC11-204 Public Surplus Agreement Public Surplus Seller Terms and Conditions
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 making property sold using Your username and password available for pickup by the
buyer.
(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 ub �c Surplus charges no fees for You to register to list property for sale on the Site.
"1.5. No Disruption to Our Site or Services. You agree not to attempt any action that may disrupt our Site or our Services.
Among other things, You agree that (1) to the best of your knowledge 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 expropriate any system, data or personal
information; (ii) You will not intentionally 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 not 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
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content contained herein without our prior express written permission; and (vi) You will not take any action that imposes
an unreasonable or disproportionately large 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 necessary 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 6.8 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 Purchase 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 notified by this statement that Your consent to these terms and conditions by checking
the box indicating 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.
Deposits when Seller becomes Bidder. 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 deposit from You will be retained and applied to the pending
invoice or to any past due balance owed by You.
*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.
3. LIABILITY LIMITATIONS AND RELEASES
3.1. 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.
3.2. 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, AND 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.
3.3. 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 unavailable unexpectedly.
3.4. 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.
3.5. 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 our involvement, and 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 favor at the time of executing the release, which if known by him must have materially affected
his settlement with the debtor."
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4. 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 view 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.
5. 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
of the 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. Prior to Your access to our Site being suspended or terminated
in accordance with this provision, Public Surplus will provide you with notice of such suspension or termination and will
immediately thereafter remove Your property from all listings on our Site.
6. MISCELLANEOUS
6.1. 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, including, but not limited to, content, auction features, news and information, and
product categories without notice.
6.2. 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.
6.3. 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.
*6.4. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of
the State of Colorado. 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 Colorado in connection with any dispute or claim involving Public Surplus. Any and all claims, disputes or
controversies related to this Agreement, or breach thereof, shall be litigated in the District Court of Eagle County,
Colorado, which shall be the sole and exclusive forum for such litigation.
6.5. 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.
6.6. 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.
6.7. 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.
6.8. Intellectual Property. All inventions, know how, improvements, discoveries, methods, processes, concepts, designs,
ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of
doing business, 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 Purchase's
prior written consent.
6.9. 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.
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6.10. 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 Purchase 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.
6.11. 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.
6.12. Survival. The warranties, covenants and representations of the parties to this Agreement will survive termination of
this Agreement.
6.13. Headings. Headings are for reference purposes only and in no way affect the interpretation of this Agreement.
6.14. Oral Statements by Representatives. 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 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 Surplus unless agreed
to, in writing, by Public Surplus.
IT IS UNDERSTOOD THAT THE USE OF Public Surplus' SYSTEM WILL BIND THE PARTIES TO THE ABOVE
TERMS AND CONDITIONS.
THE COUNTY:
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY COMMISSIONERS
ATTEST: aF v1 j
By: AIL � � wnr.�sr ` Afi ,V
Ierk of the r oard of �• ° (s° Jo avney, Chairma
County Commissioners
16`1: DikA
Public Group, LLC
