Effective: May 11, 2020
These terms and conditions (the “Agreement”) are a legal agreement between you and Altisource S.à r.l. (“Altisource”, “us”, “our” or “we”). Please note that by accessing the Hubzu® website (www.hubzu.com) and the related services and tools or by downloading and/or using the Hubzu.com mobile application (i.e., the Hubzu mobile app) (collectively, “Hubzu”), or any of its affiliated websites (“Affiliated Websites”), you hereby agree to be bound by the terms of this Agreement. Additionally, to the extent you download the Hubzu mobile app from the Apple App Store, you may be subject to the Licensed Application End User License Agreement by and between you, Altisource S.à r.l. and Apple.
Please note that this Agreement includes a class action waiver, a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by you. Your consent to be contacted using an automatic telephone dialing system, and how to revoke such consent, is detailed below in Section 14.
We may change the terms of this Agreement from time to time. We will notify you of any such changes via e-mail or by posting the changes via a link to the updated Agreement on the Hubzu.com home page. If you object to any such changes, your sole recourse will be to stop using Hubzu. Continued use of Hubzu following any such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes, without limitation or qualification. You hereby agree that you are solely responsible for keeping apprised of any updates to the Agreement which are posted on Hubzu.com.
This Agreement applies to all properties marketed for sale using the Hubzu platform whether accessed via the Hubzu website or the Hubzu mobile app.
Selected Bidders (as defined below) are required to execute the seller’s purchase and sale agreement or such other contracts or agreements evidencing the Selected Bidder’s obligation to purchase the property (each, a “Purchase Agreement”). The Purchase Agreement will contain the terms and conditions of the sale of any property marketed on Hubzu or its Affiliated Websites. The Purchase Agreement is between the seller and the Selected Bidder (as defined below); Altisource is not a party to the Purchase Agreement. In case of any conflict between provisions set forth in this Agreement and the Purchase Agreement, the Purchase Agreement shall control with respect to the parties bound thereto.
As used in this Agreement or on Hubzu, the terms below have the following meanings:
“Affiliated Websites” has the meaning assigned to such term in the opening paragraph to this Agreement.
“Altisource” has the meaning assigned to such term in the opening paragraph to this Agreement.
“AOA” means collectively, Altisource Online Auction, Inc. and its affiliated licensee(s).
“Auction Marketing” is an online marketing format in which the Seller will consider bids to purchase a property for a fixed period of time (i.e., there is a specific time limit for Bidders to place bids on the property).
“Back-Up Bid” means a bid placed during an Auction Marketing cycle which was not the Selected Bid, but for which the Bidder has elected to keep available to the Seller for a specified period of time. A Back-Up Bid may become the Selected Bid upon notification by the Seller to the Bidder at the Seller’s sole and absolute discretion. There is no guarantee a Back-Up Bid will ever become the Selected Bid.
“Bid Deposit” is a hold that is placed on a Bidder’s credit or debit card before the Bidder places a bid on certain properties marketed on the Hubzu website. This hold has the potential to be converted into a NON-REFUNDABLE charge on the Bidder’s credit or debit card if the Bidder fails to fulfill their obligations if they become the Selected Bidder. Please review Section 1(e) below for additional information.
“Bidder” means a person who places any bid or offer on a property marketed on Hubzu.
“Buyer” means a person who has entered into a binding Purchase Agreement with the Seller for a property marketed on Hubzu.
“Buyer’s Premium” is the fee charged to Buyers who purchase properties marketed on Hubzu in an Auction Marketing format. The specific Buyer’s Premium for a property appears on the “View Details” tab on the Property Details Page for the property.
“Earnest Money Deposit” is the good faith deposit a Buyer pays to the escrow agent under the Purchase Agreement to help demonstrate the Buyer’s commitment to purchase the property. In some transactions, including properties sold via a Foreclosure Auction, this amount is sometimes referred to as the “sale deposit” but we generally refer to such deposits in this Agreement as the “Earnest Money Deposit”.
“End the Auction Now” is an option available on some properties as part of the Auction Marketing process where the Seller indicates a price at which a Bidder may bid to end the Auction Marketing process, subject to approval by the Seller. The Seller reserves the right not to sell the property to the Bidder, including those who elect to use the End the Auction Now feature. Seller’s acceptance of the bid is only effectuated by execution of the Purchase Agreement by all parties required to execute the Purchase Agreement, including the Bidder and the Seller.
“Foreclosure Auction” means the solicitation of bids during a prescribed period and auctioning of real estate for sale to the public after the borrower defaults on the loan for a property which is secured by a mortgage or deed of trust. Depending on the state, a Foreclosure Auction may be conducted online or in-person.
“Hubzu” has the meaning assigned to such term in the opening paragraph to this Agreement.
“Licensed Real Estate Agent” is a licensed real estate broker, agent or salesperson representing the Seller or a Bidder, as the case may be.
“Listing Price” means the potential sales price in U.S. Dollars that the Seller is asking for a property. The Seller may choose, in its sole discretion, not to accept any Bidder’s bid for a property even if it meets or exceeds the Listing Price.
“No Time Limit Marketing” is an online marketing process in which the Seller will consider offers for an unspecified period of time (i.e., there is no specific time limit to make an offer to the Seller).
“Property Details Page” is a page specific to each property marketed on Hubzu which provides, among other information, the description, location, price, fees, photos, and other information about the marketed property.
“Purchase Agreement” has the meaning assigned to such term in the opening paragraphs to this Agreement.
“Reserve Price” means the minimum price set by the Seller for a property subject to an Auction Marketing. Unless required by law, the Seller may choose to not disclose the Reserve Price on the Property Details Page. Even if a Bidder meets the Reserve Price, the marketing period continues (unless the End the Auction Now option is selected, if available) for the scheduled marketing time period to give other Bidders the opportunity to bid. Seller reserves the right not to enter into a Purchase Agreement to sell the property to a person or entity, including those with a bid or offer meeting the Reserve Price.
“Selected Bid” means (a) with respect to a property which is marketed using the Auction Marketing process, the bid on a Property that was selected by the Seller, in its sole and absolute discretion, following the conclusion of the time limit, and (b) for a No Time Limit Marketing, any offer which has been tentatively approved by the Seller. The Selected Bid for a property which was conducted under the Auction Marketing process may or may not be the highest bid as Sellers may choose to factor in other qualities of the bids (such as type of funds used to purchase, Bidder-requested contingencies, etc.). A Selected Bid may or may not meet the Listing Price or the Reserve Price. A Bidder with the Selected Bid (i.e., the Selected Bidder) does not convey to the Bidder the right to purchase the property. The Seller reserves the right not to enter into a Purchase Agreement to sell the property to a person or entity, including those with a Selected Bid.
“Selected Bidder” means the person or entity that places the Selected Bid. Being a Selected Bidder does not grant the Selected Bidder the right to purchase the property. Formal agreement regarding the terms of the sale of the property (which may or may not be with the Selected Bidder) lies within the sole discretion of the Seller.
“Seller” means a person or entity who is the owner, or is authorized to act on behalf of the owner, of a property that is marketed for sale on Hubzu or its Affiliated Websites.
“Starting Bid” indicates the nominal opening bid at the beginning of an auction and may be set at or below the Reserve Price.
“Technology Fee” is a fee that is charged to most Buyers who purchase a property marketed on Hubzu in a No Time Limit Marketing format.
1. Services; Fees.
(a) Grant of Limited Access. Subject to the terms of this Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access, view and use, and in the case of the Hubzu app, download, Hubzu solely for your personal use. If you are a Licensed Real Estate Agent acting in your professional capacity, you are permitted to use Hubzu to take actions on behalf of your clients, to the extent permitted by law. Licensed Real Estate Agents representing the Seller and marketing a Property on Hubzu on behalf of their Seller are subject to the additional terms set forth in Section 12 below. This license does not include: (i) the right to resell, white label or reuse of Hubzu or its contents; (ii) the right to collect or use the listings, descriptions or prices or any data related thereto except to determine whether to place a bid or an offer; (iii) the right to download, copy or otherwise use account information for the benefit of any third party (except to the extent you are a real estate licensee acting on behalf of a client); or (iv) the right data mine, use any robots, or similar data gathering and extraction tools in connection with Hubzu.
(b) Proprietary Property. Hubzu, including all material and information, and the selection, arrangement and composition of such information contained therein are proprietary property of Altisource, AOA, its affiliates, suppliers, and licensors and are protected by United States and international intellectual property laws, including trademark and copyright laws. You agree not to remove, alter or obscure any copyright, trademark or proprietary rights notice incorporated into or posted on Hubzu. Except for the limited access rights explicitly granted to you under this Agreement, no other rights (including any license) are granted to you, whether by implication, estoppel or otherwise and all rights are explicitly reserved.
(c) Content. Some content included on Hubzu is supplied by third parties and users of Hubzu. Accordingly, we have no editorial control over the content provided by such parties. Any opinions, advice, statements, services, offers, or other information expressed or made available by third parties, including information provided by Sellers, Licensed Real Estate Agents, or other users of Hubzu, are those of the respective author(s) or distributor(s) of that information. We neither endorse, nor are responsible for, the accuracy or reliability of any opinion, advice, information, or statement made on Hubzu by its users or other third parties.
(d) Use and Storage. You acknowledge and agree that we may establish general practices and limits concerning use of Hubzu, including, without limitation, the maximum number of days that information, data, account history or other uploaded content will be retained by us and the maximum number of times (and the maximum duration for which) you may access Hubzu in a given period of time.
(e) Bidder Requirements. You must be a registered user of the Hubzu.com website and/or Hubzu mobile app to submit a bid or offer. Please allow 24 hours for account activation, and note that you will not be able to place bids or offers until your account has been activated. Creating an account on Hubzu is free but there are different types of fees, deposits or holds you may be obligated to pay or make if you place a bid or if you become the Selected Bidder. Below is a description of these fees, deposits and holds:
(ii) Earnest Money Deposit. The minimum required Earnest Money Deposit is generally calculated based on a predetermined percentage of your bid or offer amount. In some cases, such as in certain Foreclosure Auctions, the Earnest Money Deposit is calculated based on the appraised value of the property. The Earnest Money Deposit for a specific property is shown on the Property Details Page. You must pay the Earnest Money Deposit to the escrow agent under the Purchase Agreement within the timeframes set forth in the Purchase Agreement and in accordance with instructions from the Seller. The terms regarding the handling and application of the Earnest Money Deposit are set forth in the Purchase Agreement. Hubzu DOES NOT hold Earnest Money Deposits at any time. Hubzu has no control over the amount or terms of the Earnest Money deposits.
(iii) Technology Fee. The Technology Fee is charged to most Buyers who purchase a property through Hubzu through the No Time Limit Marketing process. This fee helps cover the cost of providing the Hubzu technology platform. The amount of the Technology Fee is noted on the Property Details Page in the Property Fees box, if applicable.
(iv) Buyer’s Premium. The Buyer’s Premium is charged to most Buyers who purchase a property through Hubzu through the Auction Marketing process. In some cases, we are not permitted to charge a Buyer’s Premium as part of the Auction Marketing process. If there is a Buyer’s Premium on the property, the amount is shown on the Property Details Page in the “Property Fees” tab. The Buyer’s Premium is calculated based on the Buyer’s original Selected Bid. Any subsequent changes to the purchase price of the property do not impact calculation of the Buyer’s Premium.
2. Eligibility and Your Responsibilities.
(a) Who Can Use Hubzu. Hubzu is available only to individuals and entities who can form legally binding contracts under applicable law. Without limiting the foregoing, Hubzu is not available to minors or to temporarily or indefinitely suspended users. If you do not qualify, please do not use Hubzu. Further, your account and user ID may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement, any Purchase Agreement and any other real estate related agreements. If you do not have such authority, you will be held liable for all actions taken under your user ID. Sellers may also place restrictions on who may purchase their properties and may choose not to enter into an agreement with a person or entity who appears on certain exclusionary lists (e.g., Specifically Designated Nationals and Blocked Persons Lists, Suspended Counterparty Program lists, Freddie Mac Exclusionary Lists, etc.) or who may be considered an employee of or related party to the Seller or its affiliates.
(c) Identity Verification and Use. We use many techniques to identify our users when they register. However, because user authentication on the internet is difficult, we cannot and do not confirm each user’s purported identity. We encourage you to report any instances of fraud or other circumstances that call into question the purported identity of any user of Hubzu or its Affiliated Websites. You are solely responsible for any information you provide to us. You are responsible for maintaining the confidentiality of your username and password, and you are solely responsible for all activities that occur under your username and password. You agree not to share your username and password with others. You agree to immediately notify us of any unauthorized use of your username and password, or any other breach of security related to Hubzu.
(d) Restricted Activities; Submission of Harmful Material. You agree not to post, submit or link to any material that (i) is deceptive, false, inaccurate, misleading, fraudulent, threatening, harassing, libelous, defamatory, obscene or otherwise objectionable as determined by us or under applicable law; (ii) directly or indirectly directs users to another online or offline location that provides products or services similar to Hubzu; (iii) involves unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (iv) infringes the intellectual property rights, privacy rights or other legal rights of any individual or entity; (v) includes any code, files, scripts, agents, programs or other computer programming routines intended to do harm or that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, including, for example, viruses, worms, time bombs and Trojan horses; (vi) creates liability for us or causes us to lose (in whole or in part) the services of our ISPs or other suppliers; and (vii) interferes with, disrupts or otherwise adversely impacts the use of Hubzu by any other individual or entity.
(e) No Shill Bidding; No Scamming. Shill bidding is when a user bids on a property to artificially increase the price, desirability or search standing of that property. Shill bidding is expressly prohibited on Hubzu and its Affiliated Websites. Users who engage in shill bidding or similar activities are subject to indefinite suspension and termination of their account. You may not market or bid on any property on Hubzu or its Affiliated Websites (or consummate any transaction that was initiated using Hubzu or its Affiliated Website) that could cause us to unknowingly participate in, or contribute to, the violation of any applicable law, statute, ordinance or regulation. We have a “zero-tolerance” policy for the posting of false or fraudulent marketing, which includes any properties you do not own or have a right to sell. We are committed to keeping our site and user community safe, and will report any and all suspected use of our site for scamming, fraudulent, or extortive purposes to the appropriate law enforcement agency or regulators.
(f) Reverse Engineering. You may not reverse engineer, decompile or disassemble Hubzu. You may not use automated web queries (including, without limitation, screen and database scraping, spiders, robots, crawlers and any other automated activity in connection with Hubzu). General purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the services are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent. You may not frame any part of Hubzu. You may not use, or attempt to use, Hubzu through any means not explicitly and intentionally made available, provided or intended with respect to Hubzu. You may not harvest information about users of Hubzu for any purpose. You may not use the Services in any manner that could damage, disable, overburden, or impair Hubzu or that harms us, our service providers, suppliers or any other person.
(g) Bulk Downloads. The content offered as part of Hubzu is not intended for bulk downloads, and thus, you are expressly prohibited from downloading such content in bulk. For purposes of further clarification, bulk downloads shall include, without limitation, any ten retrieval related actions per minute from an individual IP address or otherwise associated with one user of the website. Unreasonable and/or excessive use, as determined in our sole discretion, may result in access being denied temporarily or permanently for a given user or IP address.
(h) Access and Interference. You agree that you will not use any electronic device, software or process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any electronic device, software or process to interfere with or attempt to interfere with the proper functioning of Hubzu or any activities conducted on Hubzu. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from the Hubzu site for public or commercial purposes, including the text, images, audio, and video without our prior expressed written permission.
(i) Termination. Without limiting any of our other remedies, we may immediately remove your properties marketed on Hubzu, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and prohibit you from using Hubzu or the Affiliated Websites if: (a) you breach any terms of this Agreement; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
3. Hubzu is a Platform.
(a) Hubzu. Hubzu is not an auctioneer. Hubzu is a platform for Sellers to market properties in a variety of ways and for users to place bids or offers on the properties marketed on Hubzu. Hubzu is not involved in the actual transaction between Buyers and Sellers. Hubzu has no control over the truth or accuracy of the information regarding properties marketed on Hubzu, the Seller’s ownership interest in the marketed property, or the ability of a prospective Buyer to close on the transaction.
(b) AOA. AOA operates Hubzu on behalf of Altisource and where required by law, conducts the Auction Marketing activities.
(c) Release. In the event of any dispute between you with one or more Hubzu users or any Seller, you release Altisource, AOA and their respective parents, subsidiaries, and affiliates (and their respective officers, directors, agents, and employees) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute(s).
(d) Information Control. We do not control the information on Hubzu and its Affiliated Sites that is provided by Licensed Real Estate Agents, Sellers and other users. You may find other users’ information to be offensive, harmful, inaccurate or deceptive. Please use caution, common sense and safe business practices when using Hubzu and its Affiliated Websites. Please note there also may be risks of dealing with underage persons, foreign nationals and people acting under false pretenses.
(e) Server or Other Technological Issues. From time to time, Hubzu and its Affiliated Websites (including, but not limited to the associated email notification engines) may not operate optimally, at normal speed, with full functionality, or at all. In our sole discretion and at any time, we may choose to shut down Hubzu or its Affiliated Websites for any amount of time, thereby ceasing the ability for any, some, or all users to view or search for properties or to place any bids for properties. The decision to shut down and re-enable Hubzu or its Affiliated Websites, in whole or in part, rests solely with us. After shutting down Hubzu, and/or the Affiliated Websites, we may decide to remarket or extend the time of Auction Marketing cycles (or any other marketing) that were pending during the time that Hubzu and/or the Affiliated Websites were shut down. By utilizing Hubzu and the Affiliated Websites, you understand and agree that they are provided “AS-IS” and that, while we strive to provide a seamless and satisfying experience for all of our users, Hubzu assumes no responsibility for the temporary unavailability of Hubzu and the Affiliated Websites or the timeliness, transport, outage, deletion, misdelivery or failure to store/retrieve any user commands, data, communications or personalization settings in connection with Hubzu and the Affiliated Websites. We reserve the right to rerun Auction Marketing cycles if there is an interruption, website defect, delay in operation of transmission, or other failure during the Auction Marketing cycle. As a service to you, we may email you information regarding properties marketed on Hubzu which may be of interest to you. Those email notifications may include updates regarding bidding activity, property status or other relevant information. From time to time, technical issues may delay or prevent emails from being sent or received, so we cannot guarantee timely delivery of such email notifications. As such, you should not rely on such emails, particularly for status updates, recent bid activity notifications or any other updates that may be provided within the final twenty-four hours of the Auction Marketing process. Subject to the limitations set forth in this Section 3(e), the most up-to-date information regarding properties marketed on Hubzu will be on the Property Details Page for the particular property.
4. Bidding and Buying.
(a) Your Intent to Purchase. Sellers who market properties on Hubzu are inviting users to make a proposal to contract with them; Sellers are not making an offer to users to contract. This means that the Seller can withdraw the property from the Auction Marketing process at any time. Bidding on a property indicates your intent to purchase that property and is considered your acceptance of the Seller’s invitation to make a bid or offer to enter into a contract with the Seller, which bid or offer remains open until the earliest of (i) the Seller accepting the bid or offer, which acceptance can only be effectuated by Seller’s execution of the Purchase Agreement after the Purchase Agreement has been executed by all parties required by the Purchase Agreement, (ii) the Seller selling the property to another Buyer, or (iii) the property being remarketed on Hubzu in a separate Auction Marketing or No Time Limit Marketing. As a Bidder, you are obligated to complete the transaction with the Seller if you submit a Selected Bid. NOTWITHSTANDING THE FOREGOING OR ANYTHING IN THIS AGREEMENT OR ANY OTHER DOCUMENTATION TO THE CONTRARY, BY RECEIVING ANY BID, INCLUDING WITHOUT LIMITATION A SELECTED BID, THE SELLER IS NOT OBLIGATED TO SELL THE PROPERTY TO THE BIDDER, OR ANY OTHER PERSON OR ENTITY UNTIL A PURCHASE AGREEMENT HAS BEEN EXECUTED BY THE SELLER AND ANY OTHER PERSONS OR ENTITIES REQUIRED BY THE PURCHASE AGREEMENT.
(b) Consequences of Failure to Purchase. Any person who fails to consummate a purchase after submitting a Selected Bid may be charged the Bid Deposit amount, if applicable, which is NON-REFUNDABLE, and/or may barred from using Hubzu and its Affiliated Websites. Similarly, if you default in payment of any Earnest Money, Technology Fee or Buyer’s Premium, you may be barred from using Hubzu and its Affiliated Websites. By making a bid on a property, you agree to be bound by these terms and conditions. Bids cannot be withdrawn once placed. Additionally, if you, as a Selected Bidder or Buyer, fail to complete the transaction, you may be in breach of contract and subject to legal claims by the Seller, and/or other parties to the transaction.
(c) Protections Against Auction Sniping. The Seller of a property marketed for sale using the Auction Marketing process will have an option to extend the time remaining for the Auction Marketing by fifteen (15) minutes when there is bidding activity in the last fifteen (15) minutes before the scheduled auction end time. After the Auction Marketing end time has been extended once, the Auction Marketing will be automatically extended for successive fifteen (15) minute periods until fifteen (15) minutes have passed with no bidding activity, in which case the Auction Marketing will be closed. The extension of the Auction Marketing in this manner allows Bidders time to respond.
(d) Seller Responses. We make every effort to inform Bidders of Sellers’ responses to bids or offers on properties in a timely manner via email. Sometimes, technical issues may delay or prevent emails from being sent, so we cannot guarantee email notifications. Please visit the “Messages” section of “My Hubzu” for updates on pending bids or offers from Sellers.
(e) Seller Acceptances. With all properties marketed on Hubzu, all bids are subject to review and approval from the Seller, which acceptance or deletion is wholly within the Seller’s sole discretion. Seller may accept or reject any bid, including the highest bid received during the Auction Marketing process, and regardless of whether the Reserve Price has been met. The Selected Bidder will receive a communication if the Selected Bid is approved by the Seller.
(f) Prequalification Letters; Proof of Funds. For certain properties, you may be required to upload a copy of a prequalification letter or provide evidence of proof of funds satisfactory to the Seller. By uploading a prequalification letter, you represent that the document is a bona fide prequalification letter and that its contents are true and accurate in all respects. By uploading proof of funds documentation, you represent that the documents are true and accurate in all respects.
5. Property Status; No Warranties.
(a) Property Status. ALL PROPERTIES MARKETED FOR SALE ON HUBZU AND ITS AFFILIATED WEBSITES ARE FOR SALE WITH NO EXPRESS OR IMPLIED GUARANTEES OR WARRANTIES WHATSOEVER BY THE APPLICABLE SELLER, ALTISOURCE, AOA AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES AND AFFILIATES, UNLESS REQUIRED BY LAW. Without limiting any other provision of this Agreement or the applicable Purchase Agreement, you acknowledge and agree that if you are bidding for a property and, if you are ultimately the purchaser of the property, you are acquiring it in its present state and condition as of the date you submit the bid, with all defects, both patent and latent, and with all faults of the property whether known or unknown, presently existing or that may thereafter arise. Furthermore, the property is subject to all terms and conditions set forth on the Property Details Page for such property (including any linked pages containing additional information) and any other terms and conditions specified by the Seller. You acknowledge and agree that Seller, Altisource, AOA and their respective parents, subsidiaries and affiliates have not made, do not make and, moreover, specifically negate and disclaim any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to the Property, including without limitation: (a) the value, nature, quality or condition of the property; (b) the income to be derived from the property; (c) the suitability of the property for any and all purposes, activities and uses which you may conduct thereon; (d) the compliance of or by the property or its operation with any laws, rules, ordinances or integrity of the land or any buildings or improvements of any applicable governmental authority or body; (e) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the property; (f) the manner or quality of the construction or materials, if any, incorporated into the property; (g) the manner, quality, state of repair or lack of repair of the property; (h) the conformity of the improvements to any plans or specifications for the property that may be provided to you; (i) the conformity of the property to applicable zoning or building code requirements; (j) the existence of soil instability, past soil repairs, susceptibility to landslides, sufficiency of under-shoring, sufficiency of drainage, or any other matter affecting the stability or integrity of the land or any buildings or improvements situated thereon; (k) whether the property is located in a special studies zone under the public resources code or a seismic hazards zone or a state fire responsibility area, or a special flood hazard zone; or (l) any other matter with respect to the property. You acknowledge that the property may not be in compliance with applicable zoning, building, health or other law or codes, that the Seller may not have occupied the property and that the property may not be in habitable condition. You further acknowledge and agree, without limitation, that the Seller, Altisource, AOA and their respective parents, subsidiaries and affiliates have not made, do not make, and specifically disclaim any representation regarding compliance with any laws, including the Americans With Disabilities Act or with any federal, state or local environmental protection, pollution or land use laws, rules, regulations or orders or requirements, including as defined by the U.S. Environmental Protection Agency regulations or the disposal or existence, in or on the properties, of any hazardous substance, as defined by the comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated there under. You and anyone claiming by, through, under, or on behalf of you hereby fully and irrevocably release all Sellers, Altisource, AOA, and their respective parents, subsidiaries, affiliates, (and their respective employees, officers, directors, representatives, attorneys and agents) from any and all claims that you may now have or hereafter acquire against Sellers, Altisource, AOA, and their respective parents, subsidiaries, affiliates, (and their respective employees, officers, directors, representatives, attorneys, and agents) for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or relating to any construction defects, efforts, omissions, or other conditions, including environmental matters, affecting the property(-ies), or any portion thereof. You should consider these matters when registering on Hubzu and placing bids for properties marketed on Hubzu. Additionally, the availability of any property for an inspection, and the process by which you may arrange for an inspection, is solely within the discretion of the Seller; Altisource and AOA have no control or input regarding such inspections.
(b) No Warranties. HUBZU AND THE RELATED SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. ACCORDINGLY, ALTISOURCE, AOA, SELLER AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES DO NOT MAKE ANY, AND HEREBY EXCLUDE ALL EXPRESS OR IMPLIED WARRANTIES, ENDORSEMENTS OR REPRESENTATIONS WHATSOEVER, INCLUDING BUT NOT LIMTIED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, ALTISOURCE, AOA, SELLER AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES AND AFFILIATES (AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE FUNCTIONALITY OF HUBZU OR THE AFFILIATED WEBSITES, THE ACCURACY OF THE INFORMATION, CONTENT OR MATERIALS CONTAINED ON HUBZU OR THE AFFILIATED WEBSITES.
7. Indemnity. You agree to indemnify, defend and hold the Seller, the Licensed Real Estate Agent, Altisource, AOA and their respective parents, subsidiaries, affiliates, officers, directors, agents, employees, and representatives harmless from any claim or demand, including a claim for attorneys’ fees, made by any third party due to, or arising out of, (a) your breach of any terms of this Agreement or any of the documents incorporated by reference herein, (b) your acts or omissions in connection with your use of Hubzu, (c) your negligence, gross negligence, willful misconduct, (d) your violation of any law, rule or regulation or (e) your violation of the rights of a third party.
8. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALTISOURCE, AOA, SELLER AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES ARE NOT AND SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OTHER INTANGIBLE LOSSES, OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES) ARISING DIRECTLY OR INDIRECTLY FROM: (A) YOUR USE OR INABILITY TO USE HUBZU OR THE AFFILIATED WEBSITES, (B) THE CONTENT ON HUBZU OR THE AFFILIATED WEBSITES, (C) THE AVAILABILITY OF, AND NOTIFICATIONS MADE BY HUBZU OR THE AFFILIATED WEBSITES, (D) OUR PROVISION OF ANY SERVICES IN CONNECTION WITH HUBZU, (E) DAMAGE TO YOUR HARDWARE DEVICE FROM USE OF HUBZU, THE AFFILIATED WEBSITES OR ANY RELATED SERVICES, AND (F) ANY ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT ON HUBZU OR THE AFFILIATED WEBSITES. IN NO EVENT SHALL ALTISOURCE, AOA OR THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES’ COLLECTIVE AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).
9. Legal Compliance. You shall comply with all applicable local, state, federal and international laws, statutes, ordinances and regulations regarding your use of Hubzu and its Affiliated Websites and your bidding on, marketing, purchase, solicitation of offers to purchase, and sale of property.
10. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
(a) 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.
(b) Assignment. You agree that this Agreement and all referenced or incorporated agreements may be automatically assigned by Altisource without your written consent to a third party. You may not assign any of your rights hereunder without our prior approval. You may not assign any rights you may have in any bid, including to an entity that you own or control, without the consent of the Seller.
(c) Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(d) No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
(e) Entirety. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
(f) Fees are Nonrefundable. You agree to pay all fees you incur from your use of Hubzu to AOA. All fees incurred in connection with this site are non-refundable.
(g) Relationship. This site is not intended for use by Bidders, Buyers or brokers with any personal relationship, familial or otherwise, to individuals involved with the operation of the site, including employees of Altisource, AOA, or our respective parents, subsidiaries, or affiliates. By registering on Hubzu or its Affiliated Websites, you warrant that no such relationship exists, and you agree to be solely liable for any claims that may arise in the event such representation proves to be false.
(h) Disputes. This Agreement shall be governed by and construed in accordance with Georgia law. All parties agree that any and all disputes, brought in the United States, arising from your use of Hubzu or its Affiliated Websites will be resolved solely in the United States Northern District of Georgia, Atlanta Division.
(i) Acceptance. All persons registering on this site unconditionally accept the terms of this Agreement, plus the specific terms and conditions for each individual marketing posted on this site. You agree to abide by all such terms and conditions fully and without recourse to Altisource, AOA or our respective parents, subsidiaries, or affiliates.
(j) Intellectual Property Notice. Altisource, Hubzu, the Hubzu logo and all other marks identified herein, and on referenced and incorporated agreements, are trademarks or service marks of Altisource or one or more of its affiliates. These marks may be registered with the United States Patent and Trademark Office and Intellectual Property Offices of other countries.
(k) Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION, OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF HUBZU SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
12. Other Terms & Conditions for Licensed Real Estate Agents:
The provisions of this Section 12 apply only to Licensed Real Estate Agents.
(a) Acknowledgments and Responsibilities of Licensed Real Estate Agents. Any Licensed Real Estate Agent who markets a property on Hubzu or the Affiliated Websites on behalf of a Seller hereby:
(i) acknowledges that marketing the property on Hubzu or the Affiliated Websites does not ensure or guarantee that the property will receive offers, receive bids, or be sold;
(ii) represents and warrants to Hubzu that the marketing is made on behalf of, and with permission from, the Seller of such property;
(iii) agrees to load the property on Hubzu or the Affiliated Websites correctly, and to contact Hubzu with any questions as to proper loading;
(iv) agrees to enter the correct Listing Price or Reserve Price under proper authority of the Seller;
(v) agrees to enter a proper description of the property and to ensure all other information regarding the property is correct during the entire time the property is marketed on Hubzu or the Affiliated Websites;
(vi) agrees to specify in the appropriate MLS listing(s) that all property offers should be made and entered through the Hubzu platform;
(vii) agrees to enter or have entered on Hubzu or the Affiliated Websites any offer such Licensed Real Estate Agent or the Seller of such property receives to purchase such property outside of Hubzu or the Affiliated Websites; and
(viii) agrees to indicate on Hubzu or the Affiliated Websites within a reasonable timeframe whether the Seller of the property has accepted a Selected Bid for the property.
(b) Licensed Real Estate Agent Indemnification. Any Licensed Real Estate Agent who adds a property to Hubzu or the Affiliated Websites shall indemnify, defend, and hold Altisource, AOA and their respective parents, subsidiaries, affiliates, and their respective officers, employees, agents and representatives harmless from and against any and all damages, costs, fees (including actual attorney’s fees incurred) arising out of any disputes relating to the marketing of such property on Hubzu or the Affiliated Websites.
13. Additional Terms and Conditions for Ohio Foreclosure Auctions.
The additional provisions of this Section 13 apply to each Foreclosure Auction of a property located in the state of Ohio where a private selling officer (“PSO”) is appointed by an Ohio court to conduct the marketing and sale of the property either online or in-person (each, “Ohio Foreclosure Auction”). To the extent the provisions of this Section 13 conflict with any other provision(s) in these Terms and Conditions, the provisions of this Section 13 shall apply.
(a) Bid Deposit and Funds Verification. In most Ohio Foreclosure Auctions, an authorization hold – known as the “Bid Deposit” as further described in Section 1(i) above - is required. If it is required, the Bid Deposit amount will be displayed on the Property Details Page and a step-by-step process for the processing of the Bid Deposit will be provided at the time you choose to place a bid. For those Bidders who are not chosen as the Selected Bidder, the Bid Deposit hold will be released, typically five to ten business days after the end of the Auction Marketing cycle. For the Selected Bidder, the Bid Deposit hold will be released following confirmation of the Selected Bidder’s timely delivery of the Sale Deposit pursuant to Section 13(b) below. If the Selected Bidder fails to timely deliver the Sale Deposit pursuant to Section 13(b), then the hold will be converted into a transaction and the amount will be charged to the Selected Bidder’s card; this charge is NON-REFUNDABLE.
(b) Sale Deposit. For all Ohio Foreclosure Auctions, the Selected Bidder is required to pay a sale deposit to the PSO’s designated title company in the amount required by Ohio law (the “Sale Deposit”). The Sale Deposit amount will be displayed on the Property Details Page for each Ohio Foreclosure Auction. For a Foreclosure Auction conducted online, the Sale Deposit must wired by the Selected Bidder and received by the designated title company no later than 12:00 p.m. the following business day after the end of the Auction Marketing cycle. For an Ohio Foreclosure Auction conducted in-person, the Selected Bidder must pay the Sale Deposit to the PSO immediately at the end of the live, in-person Ohio Foreclosure Auction. If you, as the Selected Bidder, fail to pay the Sale Deposit in the required timeframe, then (1) the sales transaction is deemed invalid; (2) the property may be re-auctioned by the PSO on the provisional sale date; (3) the Bid Deposit amount will be charged to your credit card in accordance with Section 13(a); and (4) you may be subject to penalties imposed by the applicable Ohio court.
The amount of the Sale Deposit is as follows (as required by Ohio law):
Appraised Value of Property
Less than or equal to $10,000
Greater than $10,000, but less than or equal to $200,000
Greater than $200,000
(c) Sales Subject to Court Confirmation. All sales of properties resulting from an Ohio Foreclosure Auction are subject to confirmation by the court pursuant to applicable Ohio law. Altisource does not guarantee the court’s confirmation of any sale or the timing of the confirmation of sale. To the extent permitted by applicable law, the PSO, Altisource, AOA and the Seller are not responsible for any costs incurred by you, as the bidder, in the event the court does not confirm the sale.
(d) Payment of Balance of Purchase Price and Costs. The balance of the purchase price (i.e., the selected bid amount less the Sale Deposit) must be paid by the Selected Bidder within thirty (30) days after the confirmation of sale by the court. In accordance with Ohio law, the Selected Bidder is responsible for any costs, allowances and taxes that the proceeds of the sale are insufficient to cover. Failure to fulfill any of the obligations required to purchase the property, including but not limited to timely payment of the required balance, may nullify the sale and result in a court ordered forfeiture of the Sale Deposit.
(e) Property Conveyance. A property subject to Ohio Foreclosure Auction is conveyed by a PSO deed in the form prescribed by Ohio law and executed by the PSO in accordance with court order and Ohio law. In accordance with Ohio law, by placing a bid at an Ohio Foreclosure Auction, you appoint the designated PSO as your agent for the sole purpose of accepting delivery of the deed.
(f) Proxy Bids. In Foreclosure Auctions, the creditor or lienholder is usually required to place a bid that is based on or related to the amount of indebtedness owed by the borrower. In nearly every Ohio Foreclosure Auction marketed on the Hubzu platform, the creditor or lienholder has authorized the PSO to place bids on their behalf up to a maximum amount that they designate. These bids are known as “Proxy Bids” and you may see these bids in the bid history during an Ohio Foreclosure Auction marketed on the Hubzu platform. Proxy Bids will be automatically generated as directed by the PSO in response to bids and counterbids placed by other bidders up to the maximum Proxy Bid amount established by creditor or lienholder. Proxy Bids placed by the PSO will be clearly labeled in the bid history found on the Property Details Page for the relevant property.
14. Communication Consent: By submitting your contact information on Hubzu, you are providing your electronic signature and your consent to receive telemarketing calls, text messages and email messages from Altisource Online Auction, Inc., Altisource and its affiliates. By submitting your contact information on Hubzu, you further agree that (i) we, our employees, agents, representatives, affiliates, or third parties may call, email or SMS message (including text messages) you at the numbers and addresses you have provided for purposes of describing goods and services that may be of interest to you, offered by us, our affiliates, and/or third parties; and (ii) these calls, SMS messages (including text messages)and emails may be made using an automatic telephone dialing or email system technology and/or involve prerecorded and/or artificial voice messaging, even if it is a cellular phone number or other service for which the called person(s) could be charged for such call. Your consent, if provided, will be effective even if the number you have provided is registered on any state or federal Do-Not-Call (DNC) list.
This consent shall remain in effect until you revoke it. You may revoke your consent to these calls or other forms of communications from us by contacting Customer Care at (855) 882-1314, emailing us at email@example.com or any other method that ensures we receive the revocation. You may also reach us in writing at the following address: Altisource Online Auction, Inc., 1000 Abernathy Rd, Suite 245, Atlanta, Georgia 30328-5604.
Your consent to telemarketing calls is not a condition of obtaining any services from us. Should you prefer not to provide the consent detailed above in this Section 13, you may call contact Customer Care at (855) 882-1314 or firstname.lastname@example.org.
14.1 SMS Messages: You may subscribe (“opt-in”) to receive SMS messages from us in the Account Settings page or My Profile page on the Hubzu.com website or the Hubzu mobile app, wherein you provide express consent to be contacted by AOA and its affiliates using an automatic telephone dialing system. By opting-in, you are providing your consent to receive SMS messages from us which may include marketing messages and/or transactional notifications. These messages are recurring and on-going and may be sent outside of normal business hours based on the services and/or alerts you’ve requested. Message and data rates may apply. This means that you may be charged by your carrier for receiving the SMS message. You are not required to opt-in to receive SMS messages from us as a condition of obtaining any services from us. To unsubscribe (“opt-out”) from receiving SMS messages from us, the recommended (and fastest) way is to reply to our SMS message at any time using only the word “STOP”. Please note that failure to reply using only the word “STOP” will likely result in an unsuccessful opt-out. You may alternatively opt-out from SMS messages in the Account Settings page or My Profile page on Hubzu.com, by calling Hubzu Customer Service at (855) 882-1314 or by emailing us at email@example.com. Even if you opt-out by calling or emailing Customer Service, we highly recommend you also reply to our SMS message using only the word “STOP”, as it may take up to two business days to process an opt-out request via our Customer Service.