USER AGREEMENT

By clicking the above boxes and by using the services on this website, you are agreeing to the following terms and conditions upon which TerraCaptus, LLC (hereinafter, “TerraCaptus”) offers access to its services and this website.

I) Effective Date. This Agreement is effective upon acceptance.

II) Authority. You agree that you will not use this website unless you are able to form legally binding contracts.

III) General User Obligations. As a user of this website, you agree:

  1. that you will not transfer your TerraCaptus User Name or other user account information to another party without the prior written consent of TerraCaptus;
  2. that you will not distribute computer viruses or technology that is or could be harmful to TerraCaptus, this website, or users of this website;
  3. that you will not collect user information from this website without the user’s prior written consent;
  4. that you will not misrepresent your identity; and
  5. that you will not publish the contact information of other users or members of this website in an online public area.

IV) Buyer Obligations.

  1. You agree to deliver payment for all intellectual property (hereinafter, “IP”) purchased by you. Absent such payment received in a timely manner, we reserve the right to collect any fees owed using a collection mechanism chosen by us, including without limitation collection agencies and legal counsel.
  2. In consideration of performance of this User Agreement, you agree to pay the agreed-upon purchase price (hereinafter, “Purchase Price”) for any IP you purchase through this website (hereinafter, "Purchased IP") to the seller of the IP (hereinafter “Seller”) within the number of days set forth in the Agreement posted on the web page for the auction of such Purchased IP if such Agreement is posted on such web page, or within one week of the date the sale is consummated if such Agreement is not posted. Also, absent provisions to the contrary in the Agreement posted on the web page for the auction of such Purchased IP on this website (the terms of which supersede this User Agreement), such payment is non-refundable, provided that Seller has met its obligations to assign such Purchased IP to you. Furthermore, absent provisions to the contrary in the Agreement posted on the web page for the auction of such Purchased IP through this website (the terms of which supersede this User Agreement), you agree to pay for such Purchased IP by wire transfer to the Seller’s account, or at a later date and in any other manner desired by Seller at Seller’s sole discretion, provided that such instructions are communicated to you in writing with reasonable notice. Information necessary for such transfer shall be provided to you by the Seller or by TerraCaptus at the commencement of bidding.
  3. Absent payment provisions in an Agreement posted on the web page for an auction through this website (the terms of which supersede this User Agreement), if payment for the Purchased IP is not made pursuant to this User Agreement, Seller will retain the IP and any rights at law and equity to pursue the payment from you.
  4. TerraCaptus may require, and in such cases all buyers of IP posted on this website must sign, a memorandum of sale immediately after the sale of such IP.
  5. Unless otherwise stated, all fees and monetary amounts on this website are in U.S. Dollars.
  6. You agree to pay all fees and applicable taxes associated with the use of this website, our services, and the purchase of IP on this website.
  7. The IP posted for auction on this website is being sold under an agreement exclusively with TerraCaptus. Accordingly, you agree that you will not purchase or cause to be purchased any of the IP posted for sale on this website through any other channel, including without limitation by purchase directly from any Seller of the IP on this website.

V) Seller Obligations.

  1. You agree to deliver IP purchased from you, and to execute all documents necessary or desirable for transfer of the IP purchased from you.
  2. You agree that you will not post false, inaccurate, misleading, defamatory, or libelous content on this website.

VI) Conduct of Auctions.

  1. Reserve. All auctions conducted on this website shall be held without reserve.
  2. Bids and Bidding. The person submitting the highest bid for any IP auctioned on this website shall be the buyer of such IP. No bid for IP posted on this website shall be considered that is less than any reserve price posted for such IP. Bids may only be entered via this website. During auctions conducted on this website, each bid shall be required to be at least $100 over the preceding bid unless otherwise posted, and in no event less than any reserve price posted.
  3. Rights and Duties of TerraCaptus. Consistent with the custom and usage and applicable law of the State of Wisconsin governing auction sales without reserve, TerraCaptus shall have the following rights and duties in conducting all auctions on this website:
    1. To withdraw the IP posted for sale on this website before commencement of bidding; and
    2. To adjourn the sale without notice at any time before commencement of bidding, without incurring any liability by such withdrawal or adjournment.
  1. Disputes. TerraCaptus may resubmit any IP posted on this website if a dispute arises as to any bid on the IP. In the alternative, TerraCaptus may require that any such dispute as to bidding, or any complaint by a buyer, be submitted to arbitration in accordance with Section XVI below.
  2. Change or Terms and Conditions. TerraCaptus reserves the right to change any of the terms and conditions of the sale of IP posted on this website by announcement (by posting on this website or by e-mail notification to the last e-mail address users of this website provide upon registration or update of registration) made before the auction sale or at the commencement of the sale, and such change or changes, by virtue of this clause, shall be binding on any buyer by constructive notice.
  3. Announcements. All announcements concerning the conduct of auctions on this website, and the terms and conditions of sale governing such auctions, that are made by TerraCaptus at the time of the auction sale shall take precedence over any prior posted, e-mailed, printed, or other communication concerning such auction.

VII) Control of User Accounts. TerraCaptus reserves the right to:

  1. limit, suspend, or terminate user accounts and access to this website to any party;
  2. delay or remove content from this website;
  3. take all other actions necessary or desirable to insure that the auctions and other activities on this website are not interrupted or compromised, that TerraCaptus is not exposed to legal liabilities, and that TerraCaptus’ policies are not violated;
  4. cancel any user account at the discretion of TerraCaptus.

VIII) Warranties and Covenants.

  1. All IP posted for sale on this website will be sold as is, and at buyer’s risk, without any warranty or covenant on the part of the Seller or TerraCaptus as to title, validity, enforceability, quality, character, description, condition, or kind, or that such IP is in condition or fit to be used for the purpose for which it was originally intended. No claim for any allowance on any of the grounds will be considered after the IP is struck off to a bidder by TerraCaptus.
  2. TerraCaptus shall not give any warranty, express or implied, as to title, validity, enforceability, quality, character, description, condition, or kind of the IP posted on this website. A purported warranty, representation, or statement made by any agent or representative of TerraCaptus of IP posted on this website concerning the Seller’s IP will not be binding on TerraCaptus or the Seller or considered as grounds for any claim, adjustment, or rescission by any buyer of such IP.
  3. TerraCaptus shall not be liable for the title, validity, enforceability, quality, character, description, condition, or kind of the IP posted for sale on this website, or for any faulty description of the IP in any catalogue, advertisement, or other medium employed for announcing the sale.
  4. Buyers of IP posted on this website shall not be entitled to rescission, damages, or any other remedy on account of the title, validity, enforceability, quality, character, description, condition, or kind of such IP, or the faulty description of such IP.

IX) Limitations of Liability.

  1. While TerraCaptus tries to offer reliable data regarding the IP posted for auction on this website, TerraCaptus makes no guarantee that the information regarding such IP is accurate and up-to-date. It is the responsibility of users of this website to perform all due diligence necessary or desirable regarding the IP posted for auction on this website. Failure by a buyer of IP posted for auction on this website to perform such due diligence (including without limitation an investigation of title, validity, and enforceability) will not constitute a ground for any claim, adjustment, or rescission by any buyer.
  2. TerraCaptus does not provide legal, business, or other advice to sellers, bidders, purchasers, or other users of this website, whether regarding the IP posted for auction on this website or otherwise. It is the responsibility of users of this website to obtain any and all legal and business advice regarding the IP posted for auction on this website.
  3. You agree that you will not hold TerraCaptus responsible for the content on this website, the actions or inactions of buyers or sellers using this website, or the items posted for auction or auctioned on this website.
  4. You acknowledge that TerraCaptus is not a traditional auctioneer, and that this website is a venue to allow parties to offer, sell, and buy IP assets at any time from anywhere in a variety of venues and pricing formats.
  5. You acknowledge that TerraCaptus is an agent only, and is not involved in the actual transactions between buyers and sellers, and that TerraCaptus cannot and does not control or guarantee the quality of the IP posted for auction and auctioned on this website. By example only and without limitation, TerraCaptus cannot and does not guarantee, nor is responsible for:
    1. the quality, validity or enforceability of any patent or the patentability of any patent application on this website;
    2. whether any patent on this website is in force (i.e., that all maintenance fees or annuities have been paid);
    3. whether any patent application on this website is still pending (i.e., has not been abandoned or lapsed);
    4. the ownership of IP on this website;
    5. the value of IP on this website;
    6. the existence and scope of liens, encumbrances, or other claims of ownership or rights to the IP on this website;
    7. the relationship of the IP on this website to other IP;
    8. the filing date, issue date, or priority date of the IP on this website;
    9. the age, term or remaining term of the IP on this website;
    10. the ability or authority of any seller of IP on this website to sell, convey, transfer, or assign the IP or rights to the IP on this website;
    11. the effectiveness or legality of such a sale, conveyance, transfer, or assignment of IP on this website;
    12. the truth or accuracy of information provided by sellers regarding the IP on this website;
    13. the ability of bidders or buyers of IP on this website to pay for such IP;
    14. that a bidder, buyer, or seller of IP on this website will actually complete a transaction regarding such IP; or
    15. the event that buyers or sellers of IP posted on this website fail to honor their agreement, including failure of a seller of IP posted on this website to deliver any IP purchased to a buyer of such IP.
  1. You acknowledge and agree that TerraCaptus shall not be responsible for enforcing any agreement of any buyer or seller of IP sold on this website, by civil action or otherwise.
  2. You acknowledge and agree that TerraCaptus does not transfer legal ownership of IP on this website from sellers to buyers, and that nothing in this Agreement modifies the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2). Accordingly, barring other agreement between the buyer and seller of IP sold on this website, the buyer will become the IP’s lawful owner upon the seller’s execution of all assignments necessary to transfer legal ownership of such IP to the buyer.
  3. TerraCaptus cannot and does not guarantee continuous or secure access to this website or to TerraCaptus’ services, as (among other things) interference to website operation by factors outside of TerraCaptus’ control is possible. Therefore, to the extent legally permitted, TerraCaptus explicitly excludes all implied warranties, terms and conditions, and you agree that TerraCaptus is not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages resulting from an Outage, Interruption, or Loss of Service as defined in Section X below. TerraCaptus recognizes that some jurisdictions do not permit the disclaimer of warranties or exclusion of damages, and that such disclaimers and exclusions may not apply to all users of this website.
  4. With regard to any IP you purchase on this website, you agree that you are responsible for the maintenance (including without limitation annuity payment, maintenance fee payment, patent application prosecution, and any other patent or patent application fees, costs, and activity) of such IP. As of the date of assuming possession of any IP purchased at an auction on this website, or the date of conveying title to such IP, whichever occurs first, the buyer for such IP shall assume responsibility for the care and handling and all risks of loss or damage to such IP, and shall have all obligations and liabilities associated with ownership of such IP.
  5. You agree that TerraCaptus is not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of this website and TerraCaptus’ services.
  6. Notwithstanding the other provisions of this Section IX, if TerraCaptus is found to be liable, you agree that TerraCaptus’ liability to you or to any third party is limited to the greater of (i) the total fees you paid to TerraCaptus during the 12 months preceding the action giving rise to the liability; and (ii) $500.
  7. You agree and covenant not to sue the seller of IP you purchase on this website, or any of the seller’s officers, directors, divisions, subsidiaries, affiliates, representatives, agents, employees, or lawyers based on any claim related to the IP you purchase on this website, the products that can be manufactured pursuant to such IP, or related to the sale of such IP to you.

X) Outage, Interruption, or Loss of Service. An Outage, Interruption, or Loss of Service is defined as an event affecting the TerraCaptus website in which bidders are unable to place bids for IP on the TerraCaptus website. Such events do not include restrictions to access imposed by TerraCaptus against users of the TerraCaptus website. In the event of an Outage, Interruption, or Loss of Service occurring following commencement of an auction of IP on the TerraCaptus website but before sale of that IP, the auction for that IP will automatically terminate without sale thereof, and will be postponed to the following business day that is not a Federal Holiday as defined by U.S. Office of Personnel Management, and at the same originally-scheduled auction time of day. During the period of time between the Outage, Interruption, or Loss of Service and the re-scheduled auction day and time, the seller of the IP asset may not withdraw the IP asset from the auction.

XI) Release.

  1. You agree that in the event of a dispute you have with one or more users of this website, you release TerraCaptus and all of the officers, directors, agents, subsidiaries, joint ventures, and employees of TerraCaptus from any and all claims, demands and damages (whether actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
  2. If you are a resident of California, you hereby waive California Civil code §1542, which states: "[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 settlement with the debtor."

XII) Indemnity. You agree to indemnify and hold TerraCaptus and all of the officers, directors, agents, subsidiaries, joint ventures, and employees of TerraCaptus harmless from any and all claims and demands, including reasonable attorney’s fees, made by any third party resulting from or arising out of your breach of this Agreement or your violation of any law or the rights of a third party.

XIII) Access and Interference. Absent our express advanced written consent, you agree that you will not:

  1. use any scraper, spider, robot, or other automated means to access this website for any purpose;
  2. take any action that does, can, or may impose an unreasonable or disproportionately large burden on our infrastructure, as determined in our sole discretion;
  3. reproduce, copy, distribute, publicly display, modify, or create derivative works from any content from this website;
  4. interfere or attempt to interfere with the proper operation of this website or any activities conducted on this website; or
  5. bypass any robot exclusion headers or other measures TerraCaptus may use to restrict or prevent access to this website.

XIV) No Agency. No agency, employee-employer, partnership, joint venture, or franchiser-franchisee relationship is established or intended by this Agreement.

XV) Notices. Absent other written agreement with TerraCaptus to the contrary, all legal notices shall be served on TerraCaptus by certified mail, return receipt requested, at the following address:

You agree that TerraCaptus may give you legal notice by mail to the address provided during the registration process or any update thereof. In such case, notice shall be deemed given three days after the date of mailing to such address.

XVI) Dispute Resolution.

  1. General. You and TerraCaptus agree that we will resolve any claim or controversy at law or equity arising out of this Agreement or TerraCaptus’ services (a "Claim") in accordance with one of the subsections below or as you and TerraCaptus otherwise agree in writing.
  2. Governing Law and Venue. This Agreement shall be governed in all respects by the laws of the State of Wisconsin as they apply to agreements entered into and to be performed entirely within the State of Wisconsin between Wisconsin residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against TerraCaptus must be resolved by a court located in Milwaukee County, Wisconsin, except as otherwise agreed by the parties or as described in the Arbitration Option subsection below. You agree to submit to the personal jurisdiction of the courts located within Milwaukee County, Wisconsin for the purpose of litigating all such claims or disputes.
  3. Arbitration Option. Other than for claims of injunctive or other equitable relief, for any claim in which the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, that party shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties agree that (i) the arbitration will be conducted by telephone, online and/or be solely based upon written submissions as chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment regarding the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
  4. Improperly Filed Claims. You hereby agree that all claims you bring against TerraCaptus must be resolved in accordance with this Section XVI, and also agree that all claims filed or brought contrary to this Section XVI shall be considered improperly filed. Should you file a claim contrary to this Section XVI, TerraCaptus may recover reasonable attorneys' fees and costs, provided that TerraCaptus has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

XVII) Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced.

XVIII) Headings. The headings of the Sections of this Agreement are inserted for convenience, and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement.

XIX) Waiver. No waiver by either party of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision of this Agreement. TerraCaptus does not guarantee that TerraCaptus will take action against all breaches of this Agreement.

XX) Amendment. TerraCaptus may amend this Agreement at any time by posting the amended terms on this website. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. This Agreement may otherwise not be amended except by written agreement between you and TerraCaptus.

XXI) Complete Agreement. This Agreement and any subsequent amendments specifically permitted herein set forth the entire understanding and agreement between you and TerraCaptus with respect to the subject matter hereof, and supersede all prior agreements, whether written or oral, and other communications between the parties relating to the same subject matter.

In this regard, the terms and conditions of any separate agreement in writing between the Seller and TerraCaptus supersede the terms of this Agreement to the extent conflict exists therebetween.