In order to bid or buy on Advantage Land Company, you must first accept the terms in the User Agreement. At the bottom of this page click "I Accept" to continue with your registration.
ADVANTAGE LAND COMPANY - AUCTION SITE USER AGREEMENT
This is a legal agreement between you, the user, and website owner, Advantage Land Company, LLC ("Advantage"). Please review this Auction Site User Agreement ("Agreement") and related policies and guidelines carefully before using this website (the "Site"). Any related policies and guidelines appear on the Site and are incorporated into this Agreement by reference. Your registration on this Site, and your making of any bid, will each independently indicate and act as your acceptance of the terms and conditions of this Agreement. You may be referred to as "User" in this Agreement generally, and as "Buyer" when you are being described as a buyer in an auction transaction, and as "Bidder" when you are being described as bidding in an auction transaction. The owner of real estate subject to an auction conducted pursuant to this Site is referred to as the "Seller," and has entered into a separate agreement with Advantage with respect to the listing Seller's real estate for sale on this Site.
- 1. Services Provided. Advantage provides an online venue for Sellers to list South Dakota or Minnesota real estate for sale and for Users to locate South Dakota or Minnesota real estate for purchase in order to facilitate the transfer of ownership of real estate. The real estate available through the Site (each, a "Property") is offered by Sellers and not by Advantage. Advantage is not a party to the offer or sale of these Properties and does not own any of the Properties listed on the Site. Except as expressly provided herein, Advantage's only role is to provide the technical means via this Site for the offer and sale of the Properties. Advantage does not represent or warrant that a Seller and Buyer will complete a transaction originated through an auction conducted through this Site. Also, although Advantage may review and enter the content of Property descriptions on the Site, Advantage does not assume responsibility for verifying the material, content or information in the Property descriptions on its Site or provided in response to inquiries by Sellers or Users or as provided hereunder upon completion of bidding, and Advantage is not responsible for any damages, losses, expenses or other injuries incurred by any User or Seller as a result of relying on any material, content and information posted on the Site or provided in response to inquiries by Sellers or Users or as provided hereunder upon completion of bidding.
- 2. User Registration, Information and Conduct.
- b. User Name and Password. User will select a user name and a password. Users are entirely responsible for maintaining the confidentiality of their User names and passwords. Users are also responsible for any and all activities that occur under a User's name and password on the Site, whether through User's computer or otherwise. User agrees to immediately notify Advantage of any unauthorized use of User's name or password or any other breach of security known to User.
- c. User Conduct and Site Use. User is solely responsible for the contents of transmissions using User's name and password through the Site. User's use of the Site is subject to all applicable local, state, national and international laws and regulations. User agrees not to use the Site for illegal purposes and not to interfere with or disrupt use of the Site. User agrees not to transmit through the Site any unlawful or otherwise objectionable material of any kind or nature. User also agrees not to transmit through the Site any material that encourages conduct that could constitute a criminal offense or otherwise violate any applicable law or regulation, or could give rise to civil liability, or which encourages circumvention of the provisions of this Agreement.
- 3. Auction Procedure. Properties are listed for the specified bidding periods shown on the Site as set by the Seller and, if "sold" in an auction as provided below, are deemed "sold" at the close of bidding, including any extension of bidding under the Overtime Rules discussed below. Description and disclosure information for each Property appears on the Site, as well as any additional conditions of sale provided by the Seller.
All Property information contained on this Site and all other materials provided to a User concerning a Property was provided by Seller or under Seller's supervision and is believed by Seller to be correct. However, neither Seller nor Advantage makes any warranty as to the accuracy or completeness of the information. The Property is to be sold "as is" and "where is" even though the Purchaser may not have taken the opportunity to inspect the Property or confirm the accuracy of the information provided. Once bidding commences, a User may make a bid at any time prior to closing of the bidding as described in this Agreement. A Property may or may not have a minimum bid price disclosed on the Site. In addition, the Seller may impose a reserve price, which may or may not be disclosed on the Site. If there are no bids above the minimum bid or reserve price (whichever is higher), then the Seller is not obligated to sell the Property.
Within 24 hours after bidding closes on a Property, Advantage will send to both the highest Bidder and the Seller an email message detailing the amount of the highest bid and contact information for the Buyer and Seller (a "Sale Notice"). Buyers who receive a Sale Notice are legally bound to buy the Property at the stated bid amount, and the Seller is legally bound to enter into a written Purchase Agreement for the sale of the Property, pursuant to this Agreement, and subject to the additional conditions of sale specified by Seller in the auction listing. No further negotiations or contingencies are permitted.
The Seller, through Advantage, is obligated to contact the highest Bidder within three (3) days after the Sale Notice is sent by Advantage ("Seller Contact") about completing the transaction. The Seller Contact shall include unsigned copies of the Purchase Agreement, information concerning the amount, timing, and directions for any required payments, and any documents of transfer or other necessary settlement documents for closing. If the highest Bidder does not respond to the Seller Contact within five (5) days after the Seller Contact is sent, the Seller may, in its sole discretion (a) continue to attempt to contact the highest Bidder with assistance from Advantage; (b) through Advantage, contact other Bidders and, if Seller desires, sell the Property to another Bidder; or (c) re-list the Property on the Site. By selling a Property to another Bidder or re-listing the Property, neither the Seller nor Advantage is releasing any claims Seller or Advantage may have against the highest Bidder for non-performance.
- 4. Overtime Rules. If a bid is placed in the final 15 minutes of the ending time of an auction, the ending time for that auction is automatically extended for an additional 15 minutes. If another bid is received during the extended time, the ending time will be extended again and again, if necessary for an additional 15 minutes for each extension. This extension process will continue until no bids are received within 15 minutes of the previously extended ending time.
- 5. Property Closing. Closing on a purchase and sale of Property following a completed bidding process shall be conducted pursuant to this Section, unless otherwise provided in the Seller's conditions of sale or in any written agreement executed by the Buyer and Seller. The conditions of sale for a particular Property may require a highest Bidder to make an initial payment within a short time after the auction closes, or require that a pre-bidding payment be made prior to a Bidder being qualified to bid on a Property. Unless otherwise provided, a payment in the amount of ten percent (10%) of the final purchase price shall be wired by the Buyer to Advantage within three (3) days] of sending of the Seller Contact, and settlement shall occur no later than thirty (30) days thereafter. Buyer shall wire the full purchase price (minus any amount previously paid) to pursuant to payment information set forth in the Seller Contract at least five (5) days prior to closing. Upon receipt of the full purchase price, the Seller shall send the fully executed settlement documents, as appropriate, to Buyer by overnight mail at Seller's expense.
- 6. Registration. Users must register with Advantage as a User prior to placing any bid on a particular Property and must be capable of forming a legally binding agreement to purchase real estate under applicable law. The services provided by Advantage are not available to individuals under the age of 18 years old or to any other individuals or entities who are legally prohibited from, or otherwise incapable of, entering into binding contracts to purchase real estate. Users understand and agree that, although they may have registered on this Site, they must forward any required payment, receive any disclosures required by applicable statutes, and be authorized for bidding by Advantage prior to being activated for bidding in an auction for a specific Property.
- 7. Obligations of Bidders/Buyers and Sellers.
- a. Agreement As Contract. This Agreement, together with any additional conditions of sale provided by a Seller for a particular Property, as disclosed on the Property description, comprise a contract between a Seller and the highest Bidder in any completed auction to enter into a Purchase Agreement for the purchase and sale of the Property. The form of the Purchase Agreement, which does not include the names of the purchaser or the purchase price, will be disclosed in the Property description or is accessible using a link appearing in the Property description. By bidding on a Property a Bidder agrees, and by listing a Property on the Site a Seller agrees, to be bound by this Agreement and the Seller's conditions of sale included in the Property description. In the event of any direct conflict between this Agreement and any conditions of sale provided by a Seller, this Agreement shall prevail; except that in the event of a direct conflict regarding the timing and requirements of closing, the Seller's conditions of sale shall prevail over this Agreement with respect to such provisions.
- b. Offer and Acceptance. A bid made by a Bidder is an offer to enter into a Purchase Agreement in the form disclosed in the Property description, or which is accessible through a link from the Property description, for the purchase of the Property from the Seller at the stated bid price, payable in full in cash and with no contingencies, including without limitation financing contingencies. The bid is an irrevocable offer by Bidder, subject to revocation as provided herein only if there has been a material change in the description of a Property made after such bid is placed. A Bidder is required to conduct any inspection, research or other due diligence on a Property prior to making a bid. User agrees that, unless otherwise expressly stated in the Property description, the Property is being sold "as-is" and "where-is", without warranty or representation of any kind as to the Property, including without limitation the nature or condition or location of or access to the Property. In this regard, User acknowledges and agrees that it is User's responsibility to make arrangements with Advantage to inspect the Property before making a bid. User further acknowledges and agrees that User's bid shall act as and be User's acknowledgement that User has made all inspections desired and agrees to take the Property in its "as-is" and "where-is" condition, subject only to express terms and conditions contained in this Agreement and the express written terms and conditions of the Purchase Agreement in the form disclosed in the Property description, or which is accessible through a link from the Property description.
- If a Buyer bids on a Property and that bid represents the highest bid for that Property, and the highest bid is at or above the Seller's minimum and/or reserve price (whichever is higher), the Buyer's bid is deemed accepted by the Seller subject to this Agreement. Once Seller Contact is sent, the Buyer is obligated to enter into a Purchase Agreement to purchase the Property at the highest price offered by the Buyer pursuant to this Agreement. The Property description includes a specific form of Purchase Agreement to be entered into by the Seller and highest Bidder after the auction closes, or the form of the Purchase Agreement is accessible through a link from the Property description.] All Users acknowledge and agree that closing on a sale of a Property may be subject to final approval of a court or other agency as stated in the Property description, and that if such approval is not obtained, the Seller may withdraw such Property after a completed bidding process without any recourse against or liability on the part of Seller or Advantage.
- c. Post-Auction Sales. In the event an auction closes and no Bidder has bid an amount at or in excess of the minimum or reserve price, whichever is greater, then the Seller may, at the Seller's option, instruct Advantage to send an e-mail message to any or all Bidders who submitted bids on that Property and ask for each Bidder's final and best offer or otherwise attempt to negotiate a sale of the Property on behalf of the Seller with any of such Bidders. Except as otherwise agreed between Advantage and Seller in writing, Seller shall have the right to choose whether to accept or reject any of such offers and whether to complete the sale of the Property to any such Bidders or to re-list the Property on the Site or withdraw the Property from the Site. In the event the Seller agrees on the terms of a purchase and sale with any Bidder pursuant to this post-auction negotiation process, then the parties shall enter into a purchase agreement to memorialize the terms of their agreement.
- d. Material Change in Description of Property. In the event a Seller materially changes the description of a Property after the commencement of the bidding process, then all Bidders who have previously made a bid on such Property will be notified by Advantage (at the direction of the Seller) by e-mail that the description of the Property has been materially changed. Such Bidders will then have the period provided in Advantage's email notice to such Bidders to retract the Bidder's bid, after which time all bids will remain irrevocable notwithstanding the change to the Property description. Information and changes posted on this Site supersede information posted or provided in any other media.
- e. Enforcement. Users acknowledge and agree that User and Seller are third party beneficiaries of this Agreement and that they, in addition to Advantage, shall be entitled to enforce the provisions hereof and may pursue legal action against each other for non-performance of any provision hereof, including without limitation, non-performance of a purchase and sale after a completed bidding process. In addition, Advantage retains the right to terminate a User's rights to use the Site in the event a User violates this Agreement.
- 8. Other Responsibilities of Users / Bidders/ Buyers.
- a. Inspection and Due Diligence. All Properties are listed and sold on the Site on an "as is" and "where is" basis. Users are required to inspect and to conduct any research or due diligence of a Property that they wish to conduct prior to making a bid. Users wishing to physically inspect a Property seen on the Site shall make arrangements with Advantage to do so at Seller's discretion. The Seller's terms of sale and/or description of a Property may, but are not required to, contain information regarding inspections and other due diligence opportunities available. Users are encouraged to engage a real estate professional or legal counsel, at their own expense, to review the Property and related information, including without limitation real estate records, property tax records, and other publicly available information.
- b. Closing. After the online bidding is complete, unless otherwise indicated, Buyer is responsible for taking all necessary actions on Buyer's part to complete the purchase of the Property once a Sale Notice is given to Buyer and Seller by Advantage. User and Seller acknowledge that Advantage is not responsible for completion of the sale.
- c. Buyer's Premium. The Property description may provide for a "Buyer's Premium." User agrees to pay the Buyer's Premium, if any, stated in the Property description in the event the User is the highest Bidder for that Property, except no Buyer's Premium shall be due in the event closing on the Property fails to occur through no fault of User as the highest Bidder. The Buyer's Premium, if any, is payable at closing on the Property and is non-refundable. A User will also be liable for the Buyer's Premium, if any, if the User is activated to bid in a specific auction where there is no winning bid declared or the sale of the Property does not close as described in Section 3 above, if during the 185 days following the end of the auction the User enters into an agreement with the Seller for the purchase of the Property listed for auction on the Site. User's submission of a bid for any Property, the description for which includes a Buyer's Premium, indicates and acts as User's acceptance of and agreement to pay the Buyer's Premium with respect to that Property as described in this Agreement. User must not place a bid if User does not consent to payment of the Buyer's Premium.
- d. Exclusivity. User acknowledges that user has been informed that each Seller has agreed that this Site will be the sole venue for sale of each listed Property for at least the term of the listing online following the commencement of bidding on the Property. User acknowledges that user may not make an offer to a seller, and that Seller may not make any offer to sell, concerning any listed Property other than through this site once bidding has commenced on an auction of the Property on this Site.
- 9. Other Responsibilities of Seller.
- a. Description of Property. As between User and Seller, and without creating any rights in favor of a User, Seller is responsible for the Property description and any terms and conditions of sale for a particular Property shown in any Property listing on this Site. Users and Seller acknowledge that Advantage shall not be liable to Seller or any User for any misstatements or omissions in such description or inconsistencies of the description with this Agreement or the Purchase Agreement for the Property. Notwithstanding the placement of a listing for the Property on the Site or the placement of one or more bids thereon, Advantage retains the right to terminate Seller's right to use this Site and to terminate a listing if a Property listing includes material misstatements or omissions, although Advantage has no obligation to investigate the accuracy of a Property description or to terminate an auction listing.
- b. Compliance With Applicable Laws. As between User and Seller, and without creating any rights in favor of a User, Seller is responsible for complying with all applicable local, state, federal, or foreign laws, rules, regulations and legal approvals regarding the sale of any Property, including without limitation, court approvals, Seller disclosure laws for any Property, environmental requirements, and laws governing the sale, and all other applicable laws, rules and regulations pertaining to the sale of any Property. User and Seller acknowledge that Advantage is not responsible for any of the foregoing.
- c. Closing. After the online bidding is complete, unless otherwise indicated, Seller is responsible for taking all necessary actions on Seller's part to complete the sale once a Sale Notice is given to Buyer and Seller by Advantage. User and Seller acknowledge that Advantage is not responsible for completion of the sale.
- d. Exclusivity. Seller agrees that this Site will be the sole venue for sale of each listed Property for at least the term of the listing online following the commencement of bidding on the Property. User and Seller acknowledge that User may not make an offer to a Seller, and Seller may not make any offer to sell, concerning any listed Property other than through this Site once bidding has commenced on an auction of the Property on this Site.
- 10. Rights and Responsibilities of Advantage.
- a. Modifications to Agreement. Advantage may change this Agreement at any time and from time to time. Any amendment shall be effective immediately upon posting on the Site. Continued use of the Site by Seller or User constitutes an affirmative acknowledgment by User or Seller of this Agreement, as modified from time to time, and the agreement by User or Seller to abide and be bound by this Agreement, as modified.
- b. Supervision of Site. Advantage reserves the right, but does not assume the obligation, to supervise all material, content and information on its Site, including, but not limited to, Property listings and bidding activity, to determine compliance with this Agreement and all current and future operating procedures and rules of conduct established by Advantage. Advantage reserves the right, at its sole discretion, but does not assume the obligation, to amend, edit, remove or otherwise block any material provided by any Seller, which may violate any state, federal or local law or violate any aspect of this Agreement or which may otherwise jeopardize the business operations or goals of Advantage.
- c. Termination of Rights to Use Site. Advantage retains the right to terminate rights of a User or Seller to use the Site in the event a User or Seller violates any aspect of this Agreement, including a Seller's conditions of sale, or takes any action, or fails to take any action, which may otherwise jeopardize the business operations or goals of Advantage.
- d. Responsibilities of Advantage. Advantage agrees to act in accordance with this Agreement as amended from time to time. The duties and responsibilities of Advantage shall be limited to those expressly set forth in this Agreement and it shall not be subject to, or obliged to recognize, any other agreement concerning this Site unless such agreement is in writing and signed by Advantage. USER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT ADVANTAGE'S DUTIES ARE MINISTERIAL IN NATURE. ADVANTAGE IS MERELY A FACILITATOR AND IS NOT A PARTY TO ANY PROPERTY TRANSACTION. ADVANTAGE SHALL NOT AND WILL NOT TAKE TITLE OR OWNERSHIP OF ANY PROPERTY OR FUNDS HELD BY IT. TITLE TO SUCH PROPERTY OR FUNDS SHALL BELONG TO THE SELLER OR USER, AS THE CASE MAY BE, AND SHALL BE HELD AND DISPOSED OF IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT OR AS OTHERWISE AGREED UPON BETWEEN USER AND SELLER. ANY DISPUTES AND/OR DISAGREEMENTS BETWEEN USER AND SELLER MUST BE ADDRESSED BETWEEN USER AND SELLER, AND USER AND SELLER EACH EXPRESSLY AGREE NOT TO HOLD ADVANTAGE OR ANY OF ITS MEMBERS, AGENTS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES RESPONSIBLE IN ANY WAY OR IN ANY MANNER. USER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT NEITHER ADVANTAGE NOR ANY OF ITS MEMBERS, AGENTS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES ENDORSES ANY OF THE PROPERTIES THAT ARE LISTED ON OR TRANSFERRED PURSUANT TO AGREEMENTS REACHED THROUGH AUCTIONS CONDUCTED THROUGH THIS SITE AND THAT NEITHER ADVANTAGE NOR ITS MEMBERS, AGENTS, EMPLOYEES, REPRESENTATIVE OR AFFILIATES IS RESPONSIBLE FOR ACTION OR OMISSIONS BY ANY SELLER OR USER. ADVANTAGE AND ITS MEMBERS, EMPLOYEES, REPRESENTATIVES AND AFFILIATES SHALL ALSO BE ENTITLED TO RELY UPON ANY WRITTEN NOTICE, DEMAND, CERTIFICATE OR DOCUMENT, WHICH IT IN GOOD FAITH BELIEVES TO BE GENUINE. NEITHER ADVANTAGE NOR ITS MEMBERS, AGENTS, EMPLOYEES, REPRESENTATIVES AND AFFILIATES SHALL INCUR ANY LIABILITY WHATSOEVER EXCEPT FOR THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ADVANTAGE.
- 11. Intellectual Property. The right of a User or Seller to use this Site is personal to the User or Seller. All materials provided on this Site, other than Properties listed, including but not limited to information, documents, products, logos, graphics, images, auctions, and services are or may be the wholly owned and copyrighted work of Advantage or owned and copyrighted by another and under license to Advantage. None of the materials posted herein may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of Advantage. Neither User nor Seller may "mirror" any materials contained on this Site on any other server or website without the prior written consent of Advantage. Neither User nor Seller shall resell the Site or the services offered or otherwise use the Site other than for purposes described herein without the prior written consent of Advantage. Nothing herein shall limit or restrict any Buyer from reselling any Property purchased through this Site after closing on the Property with Seller as described in this Agreement.
- 12. Denial of Service. Notwithstanding any other provision of this Agreement, Advantage reserves the right, in its sole discretion, to refuse service to anyone using the Site at any time and for any reason.
- 13. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of South Dakota, without regard to its choice of law provisions.
- 14. Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms and shall be enforced to the fullest extent permitted by law.
- 15. Disclaimer. User and Seller expressly agree that the services on this Site are provided solely on an "as is" and "as available" basis and that use of the Site is at the sole risk of the User or Seller, as applicable. Advantage hereby disclaims any and all express or implied representations, warranties, guarantees, and conditions, including but not limited to any implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement. Advantage makes no warranties that this Site will always be available, accessible, uninterrupted, timely, secure or operate without error, or that the information, content, materials or Properties located on this Site or furnished by Advantage pursuant to this Agreement are true, correct and complete, as represented, available for sale, lawful to sell, or that the Seller or User will perform as described in the Agreement. User assumes all responsibility for determining whether the Property the User is bidding on is sufficient for User's purposes. Advantage does not make any representations, warranties, or guaranties as to the quality and suitability of any Property. No advice or information, whether oral or written, obtained by a User or Seller from Advantage or any of its members, agents, employees, representatives or affiliates or through this Site or otherwise shall create any warranty on behalf of Advantage expect as expressly stated herein.
- 16. Limitation of Liability. Advantage and its members, agents, employees, representatives and affiliates shall not be liable for any direct or indirect damages suffered as a result of listing, bidding on (or registering to bid on), purchasing or selling Property on this Site. In no event shall Advantage or its members, agents, employees, representatives and affiliates be liable for any direct, indirect, punitive, special, incidental, or consequential damages (including but not limited to loss of business, revenue, profits, use, data or other economic advantage), however arising, whether in an action of contract, negligence or other tortuous actions, arising out of or in connection with the use, accuracy or performance of this Site or information obtained from or available on this Site by Seller or User, even if Advantage has been advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy. User and Seller each agree to hold Advantage harmless from, and User and Seller each covenant not to take any legal or other action against Advantage, asserting any claims based on or related to the use of this Site or any Property listed on this Site, whether such damages arise under theory of contract, tort, strict liability or otherwise. User and Seller each agree that these limitations of liability are agreed upon allocations of risk and are reflected in the fees agreed upon by User and Advantage, and by User and Seller, as applicable. Further, Advantage's aggregate liability arising with respect to the use of this Site shall not exceed the lesser of (a) $1,000 or (b) the total amount paid by the User or Seller, as applicable, to Advantage with respect to matters arising out of the use of this Site.
- 17. Notice of Agency Relationship. Advantage is acting as the agent of the Sellers with respect to the sale of all Properties listed on the Site. Advantage is not acting as the agent of any User. Any User, or any broker acting on behalf of anyone other than the Seller, is not an agent of Advantage and must cause the party who or which would be the Buyer of a Property to register on the Site before placing a bid on the Property.
- 18. Notices - Definitions. Sale Notices and Seller Contacts and other notices given by Advantage, a User or a Seller shall be valid when sent by email to the email address of User registered with Advantage or, with respect to Advantage or Seller, to the email address of Advantage as set forth on this Site. Advantage shall be copied on any notices directly between User and Seller. E-mail notification shall be deemed to have been provided immediately upon the e-mail notification being sent by Advantage (for itself or on behalf of Seller) and upon email receipt by Advantage of the message (or a copy thereof) if sent by User or Seller.
- 19. Release and Indemnification. User and Seller hereby waive, release, forgive, discharge and relinquish any and all claims that User or Seller now has or may have against Advantage, and its members, affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental use of the Site. User and Seller each hereby agree to indemnify, defend and hold Advantage, and its members, affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from and against any and all claims, loss, damage, tax, liability and/or expense that may be incurred by Advantage, its members, affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives arising out of or in connection with the performance of Advantage's duties as described in this Agreement (except as caused by Advantage's gross negligence or willful misconduct) including the legal costs, fees and expenses of defending Advantage and its members, affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives against any claim arising out of the use of this Site by any User or Seller and/or by any other person and/or as a result of the User or Seller taking any action or refraining from taking any action or instituting or defending any action or legal proceeding relating thereto. User and Seller each further agree to indemnify and hold Advantage and its members, affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of use of the Site by Seller or User, the violation of this Agreement by User or Seller, or the infringement by User or Seller of any intellectual property or other right of any person or entity.
- 20. Resolution of Disputes. USER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT ANY DISPUTE INVOLVING ADVANTAGE AND RELATING IN ANY MANNER TO THE SITE SHALL BE SETTLED BY ARBITRATION IN BROOKINGS, SOUTH DAKOTA, IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION. USER, SELLER OR ADVANTAGE MAY SEEK INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN SOUTH DAKOTA IF NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF USER, SELLER OR ADVANTAGE PENDING THE COMPLETION OF ARBITRATION.
- 21. Relationships. Except as expressly disclosed herein, User and Advantage are independent as to each other, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
- 22. Waiver and Other Terms. Advantage's failure to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver by Advantage of such right or provision. This Agreement may not be amended by User or Seller except by a writing signed by Advantage effective at or prior to the time the User or Seller claims such amendment is effective. The titles and headings in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. Time is of the essence to this Agreement and is determined with reference to the time a communication (or copy of communication) or payment is received or sent by Advantage, whether transmitted electronically or via physical document or instrument. Physical deliveries and electronic transmission must be received or sent by Advantage by 5:00 p.m. CST on the applicable date unless another time of day is expressly stated. User or Seller, as applicable, shall pay any expenses and costs incurred by Advantage, including attorney fees, to enforce the provisions of this Agreement; provided that Advantage shall have no obligation to enforce this Agreement for the benefit of itself, User or Seller.