HomeMy Public PortalAbout122-2018 - The Public Group-Special Internet & Online Auction ServicesAGREEMENT
THIS AGREEMENT made and entered into this q1_1 day of b/ , 2018, and referred to
as Contract No. 122-2018, by and between the City of Richmond, ndiana, a municipal corporation
acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City")
and The Public Group, LLC, 3520 North University Avenue, Suite 100, Provo, Utah, 84604, acting
through its Public Surplus Division (hereinafter referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide special internet and online auctioning services for the City
of Richmond for the 2018 calendar year (the "Project").
Contractor's Proposal is attached hereto as "Exhibit A" which response consists of five (5) pages,
and is hereby incorporated by reference and made a part of this Agreement. Contractor agrees to
abide by the same. Indiana Code authorizes the special purchase of online auction services in
accordance with IC 5-22-22-4.5 where said auction sites are approved by the State of Indiana and
posted on the State's electronic gateway in accordance with IC 4-13.1-2-1 et seq. As of the date of
this Agreement, Contractor certifies it is currently a State approved Vendor.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the
City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the
work.
Contract No. 122-2018
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SECTION III. COMPENSATION
City shall pay Contractor a total amount not to exceed One Dollar and Zero Cents ($1.00) for
satisfactory completion of this Agreement, the receipt of which is hereby acknowledged as received
by Contractor. Contractor understands, acknowledges, and agrees that the respective duties and
promises contained this Agreement shall also otherwise constitute valuable consideration for
purposes of this Agreement. Any fees or costs assessed by Contractor against any third party auction
buyers shall also be considered adequate consideration under this Agreement, although this
Agreement shall not be construed to apply any third -party beneficiary status to any third party
auction buyers.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect until
completion of the Project, which completion shall be on or before December 31, 2018. The City
shall retain two (2) annual options to renew this Agreement for the 2019 and 2020 calendar years
under the same terms and conditions of this Agreement.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part,
for cause, at any time by giving at least five (5) working days written notice specifying the effective
date and the reasons for termination which shall include but not be limited to the following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work performed
prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by
setting forth the reasons for such termination, the effective date, and in the case of partial
termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or
property or any other claims which may arise from the Contractor's conduct or performance of this
Agreement, either intentionally or negligently; provided, however, that nothing contained in this
Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers,
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agents, or employees. The parties agree the City shall not be required to indemnify Contractor from
or against any debt, Iiabilities, obligations, or claims, incurred by any third party arising out of any
alleged breach of this Agreement or any alleged violation of any applicable law or any rights of a
third party. This Agreement shall not be construed to apply any third -party beneficiary status to any
third party auction buyers.
Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance
as will protect it from the claims set forth below which may arise out of or result from the
Contractor's operations under this Agreement, whether such operations by the Contractor or by any
sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose
acts the Contractor may be held responsible.
Coverage
A. Worker's Compensation &
Disability Requirements
B. Employer's Liability
C. Comprehensive General Liability
Section 1. Bodily Injury
Section 2. Property Damage
D. Comprehensive Auto Liability
Section 1. Bodily Injury
Section 2. Property Damage
E. Comprehensive Umbrella Liability
Limits
Statutory
$100,000
$1,000,000 each occurrence
$2,000,000 aggregate
$1,000,000 each occurrence
$1,000,000 each person
$1,000,000 each occurrence
$1,000,000 each occurrence
$1,000,000 each occurrence
$2,000,000 each aggregate
F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall,
before commencing work under this Agreement, provide the City a certificate of insurance, or a
certificate from the industrial board showing that the Contractor has complied with Indiana Code
Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore
subject to another state's worker's compensation law, Contractor may choose to comply with all
provisions of its home state's worker's compensation law and provide the City proof of such
compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law.
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SECTION VII. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on
behalf of Contractor or any sub -contractor shall not discriminate against any employee or
applicant for employment to be employed in the performance of this Agreement, with respect
to hire, tenure, terms, conditions or privileges of employment or any matter directly or
indirectly related to employment, because of race, religion, color, sex, disability, national
origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
That in the hiring of employees for the performance of work under this Agreement of
any subcontract hereunder, Contractor, any subcontractor, or any person acting on
behalf of Contractor or any sub -contractor, shall not discriminate by reason of race,
religion, color, sex, national origin or ancestry against any citizen of the State of
Indiana who is qualified and available to perform the work to which the employment
relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or
any sub -contractor shall in no manner discriminate against or intimidate any
employee hired for the performance of work under this Agreement on account of
race, religion, color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City under
this Agreement, a penalty of five dollars ($5.00) for each person for each calendar
day during which such person was discriminated against or intimidated in violation of
the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money due or
to become due hereunder may be forfeited, for a second or any subsequent violation
of the terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
SECTION VIII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility
status of all newly hired employees of the contractor through the Indiana E-Verify program.
Contractor is not required to verify the work eligibility status of all newly hired employees of the
contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists.
Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit
affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC
22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to
remedy the violation not later than thirty (30) days after the City notifies the Contractor of the
violation. If Contractor fails to remedy the violation within the thirty (30) day period provided
above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement
will be terminated. If the City determines that terminating this Agreement would be detrimental to
the public interest or public property, the City may allow this Agreement to remain in effect until the
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City procures a new contractor. If this Agreement is terminated under this section, then pursuant to
IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages.
SECTION IX. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in
investment activities in Iran. In the event City determines during the course of this Agreement that
this certification is no longer valid, City shall notify Contractor in writing of said determination and
shall give contractor ninety (90) days within which to respond to the written notice. In the event
Contractor fails to demonstrate to the City that the Contractor has ceased investment activities in Iran
within ninety (90) days after the written notice is given to the Contractor, the City may proceed with
any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the
course of this Agreement that this certification is no longer valid and said determination is not
refuted by Contractor in the manner set forth in IC 5-22-16.5, the City reserves the right to consider
the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of
the ninety (90) day period set forth above.
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents
of the same from all liability for negligence which may arise in the course of Contractor's
performance of its obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its
rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and void.
This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding
upon the parties, their successors and assigns. This document constitutes the entire Agreement
between the parties, although it may be altered or amended in whole or in part at any time by filing
with the Agreement a written instrument setting forth such changes signed by both parties. By
executing this Agreement the parties agree that this document supersedes any previous discussion,
negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising
out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or
mediation shall be required prior to the commencement of legal proceedings in said Courts. By
executing this Agreement, Contractor is estopped from bringing suit or any other action in any
alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the
Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to
bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has been
duly authorized by his or her principal to execute this Contract.
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In the event of any breach of this Agreement by Contractor, and in addition to any other damages or
remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this
Agreement, including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the
day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By:
Vicki Robinson, President
ichard Foore, Member
"CONTRACTOR"
The Public Group, LLC
3520 North University Avenue, Suite 100
Provo, UT 84604
By:
Printed: Zackary Corbett
Title: Product Manager
APPROVED: l Date:7/24/18
`. Sno ,
Date: / v
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Public Surplus
Buyer Agreement
This Seller agreement is a contract between you ("you" or "your") and The Public Group, LLC, a Utah limited
liability company acting through its Public Surplus division ("Public Surplus", "We" or "Us"), and governs
your use of www.publicsurplus.com and related websites (collectively, the "Site") and the services provided
through the Site and otherwise (the "Services"). As a condition to accessing and using the Site and Services,
Public Surplus requires that you review and accept 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.
1. BIDDING AND PURCHASING
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.
1.2. Buyer Affirmations in Connection with Bids or Purchases. In using our Site and Services, you agree as
follows:
(a) No contingency to your bid exists other than those stated in the listing at the time of sale.
(b) You may not retract, amend or modify a bid without prior approval by the Seller.
(c) You will be financially responsible for any bids placed using your username and password.
(d) You are capable of removing the property from its location within the required time frame.
(e) You have or can readily obtain the Trade Security Control (TSC) clearance to buy any property that
requires a clearance.
(f) You are a real person or entity, with a verifiable address, telephone number and email address as
provided to us.
(g) You are dealing in good faith and are not attempting to defraud, cheat, or wrong Public Surplus or any
Seller.
(h) You have inspected every item prior to placing a bid or you waive the need for inspection.
(i) Except as otherwise stated in writing by the Seller on the Site, you understand that all items are sold "as
is, where is" without warranty.
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.
1.4. Fees. Public Surplus charges no fees for you to register to make bids or purchases on the Site.
However, if you bid on an item, are the successful bidder, and do not purchase the item, you may, at our
option, be assessed a service fee equal to $200 or 40% of your successful bid price, whichever is greater.
Other fees 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 applicable taxes associated with the Site in a timely manner 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 might disrupt our Site
or our Services. Among other things, 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,
I�X !6!i __fA_ PAGE 1_f r 5
devices, files or routines that might damage, interfere with, copy, intercept or expropriate 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 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 or copy 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 large
load on our infrastructure.
1.6.User Password. Upon the approval of your registration, 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 all activities and charges related to the use of your 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. 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 auction items that we believe might
interest you. Any e-mail correspondence to you (i) shall be clearly and conspicuously identified as sent by
Public Surplus; and (ii) shall clearly and conspicuously display a functioning return e-mail address to enable
you to reply to Public Surplus.
1.8. Electronic Signature. Prospective bidders 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
web site, in the terms and conditions section of the site, or any other section where they might appear.
2. BUYER UNDERSTANDINGS AND OBLIGATIONS
In bidding or purchasing items on our Site or otherwise accessing our Site and Services in any way, you
represent, warrant and agree to the following:
2.1. Payment and Shipment. At the close of an auction in which you have a winning bid, you agree to make
immediate payment for the total amount due, including the stated Buyer's Premium, shipping costs and all
duties and taxes if applicable, using payment methods provided by Public Surplus. As a winning bidder, you
also will make immediate arrangements to take delivery of the goods.
2.2. Deposits. We reserve the right to require an earnest money deposit prior to or during bidding on certain
items at our sole discretion or at the discretion of the Seller. Any such deposits from you will be retained
and applied to the pending invoice or to any past due balances owed by you. Any deposits taken from non -
winning bidders will be returned.
2.3. Failure to Complete Purchase. If you fail to complete a purchase of property for which you submitted a
winning bid, you agree to any and all of the following remedies:
(a) you will be required to pay a fee to Public Surplus equal to the greater of $200 or 40% of the final bid
price;
(b) you may be required through specific performance to complete the purchase and/or you may be sued for
damages;
(c) your access to our Site and Services may be suspended or terminated;
(d) the Seller may sell or otherwise dispose of the property and charge all losses and expenses incidental
thereto to you;
(e) any bid deposit will be immediately forfeited and applied against any such losses, expenses, penalties,
and fees; and
EXwlRiT __A F;AGE a ^=,
(f) if you refuse shipment or delivery upon arrival to the location specified, you will be responsible for the
associated shipping charges.
2.4. Legal Compliance. You will comply with all applicable laws, statutes, ordinances and regulations
regarding your use of our Services. Bidding on an asset with the intent not to complete the transaction or
bidding on multiple assets causing disruption to the process and not completing the transactions will be
considered in most jurisdictions as fraud and may be prosecuted to the fullest extent of the law.
3. LIABILITY LIMITATIONS AND RELEASES
3.1. Absence of Liability. You will not hold Public Surplus responsible for actions or inactions of Sellers or
other users, including the quality or condition of property or the information posted. You acknowledge that
we are not a traditional auctioneer and we are not the Seller 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, such as stores, fixed price formats and auction -style formats. We are not involved in the actual
transaction between you and Sellers. We have no control over and do not guarantee the quality, safety or
legality of items advertised, the truth or accuracy of listings, the ability of Sellers to sell items, or the actual
completion of a sale to you, even upon a successful bid by you.
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 THE LISTED ASSETS, 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 SERVICES PURCHASED
OR OBTAINED THROUGH THE SERVICES 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 SELLER 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 bids, auctions, or sales. You
understand and acknowledge that the Site and our Services might be unavailable unexpectedly.
3.4. Third Party Links. The Site might 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 Seller or any other Buyer 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. If you are a California resident, you waive California Civil Code A§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."
3.6. Resolution of Disputes by Arbitration. You shall resolve any dispute or claim involving
Public Surplus through binding arbitration and not in court. Arbitration will be conducted by
the American Arbitration Association according to its rules, and must take place in Salt Lake
or Utah County, Utah. Arbitration will be conducted only on an individual basis and not as a
EX-HIBIT A__ PAGE .�._G`_
class, consolidated or representative action.
3.7. Indemnity. 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.
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 the Public Surplus Privacy Policy. We view
protection of Buyers' 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 the Public Surplus Privacy Policy. If you object to
Your Information being transferred or used in this way please do not use our services.
S. 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 might cause legal
liability for you, our users or us.
6. MISCELLANEOUS
6.1. Changes to Site and Services. Public Surplus may 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 shall be
provided by e-mail to the e-mail address provided by you in their registration application or via posting on
the Site. Notice shall 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. If Public Surplus receives a message that your e-mail is
disconnected or is no longer valid, notice shall be deemed to have been provided 72 hours following the
mailing of a letter to your address contained in your registration application
6.4. Governing Law. Utah law, without regard to any conflict of law principles, governs this agreement and
any dispute or claim you might have with Public Surplus .
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. But if disregarding the unenforceable
provisions would deprive either party of an essential purpose of this contract, the entire contract is to be
held unenforceable.
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 intended to
I EXHIBIT A__ PAGE _97 Ji _5-
be 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, 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 intellectual property of Public Surplus (the "Public Surplus IV). In addition, all content
contained on the Site is Public Surplus IP that is copyrighted material, and Public Surplus retains and
reserves all rights in the content. Public Surplus IP might 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
might acquire in any Public Surplus IP. 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, modified,
published, transmitted, distributed, displayed, or sold without the prior written consent of Public Surplus.
6.9. Copyrights. The Site might 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.
6.10. 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.
6.11. 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 by Public Surplus to any party. This
agreement and all incorporated agreements may be automatically assigned by Public Surplus, in our sole
discretion, to a third party in the event of a merger or acquisition.
6.12. 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. Public
Surplus may, at its sole discretion, remove or change any aspect of this agreement at any time by providing
notice to you.
6.13. Survival. The warranties, covenants and representations of the parties to this agreement will survive
termination of the agreement.
6.14. Headings. Headings are for reference purposes only and in no way affect the interpretation of this
agreement.
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