PARTICIPATION AGREEMENT
Participation Agreement updated as of 05/17/2021.
By registering a user account or participating in any marketing, transaction, or other event (“Event”) for the purchase of the real property or other property listed for sale, (including any assignment contracts) (“Property”) through www.SimpliOffer.com, SimpliOffer, LLC, or its affiliates (“SimpliOffer”), you, as a participant, (“Participant”) represent and warrant that you have read, understand, and agree to the terms of this Participation Agreement (“Agreement”), and accept and agrees to abide by all of the terms and conditions contained in the Agreement, the SimpliOffer Website Terms of Use (www.SimpliOffer.com), SimpliOffer Privacy Statement (www.simplioffer.com) as well as any other terms, conditions, and property details included with each Event listing (collectively, the “Terms”). The Terms represent the final expression of the rights and obligations applicable to Participant’s participation in any of the Events, and any resulting offer for, or purchase of, any Property through the use of the www.SimpliOffer.com website and its extensions, or mobile applications (“Website”), and shall supersede any prior agreements, representations negotiations, or understandings. “SimpliOffer”, “Seller” and “Participant” shall include all respective principals, agents, brokers, and affiliates of each.
SimpliOffer reserves the right to update or amend this Agreement and any of the Terms at any time in its sole discretion, which shall be binding upon Participant for any subsequent use of SimpliOffer or any subsequent Events. Participant’s use or continued use of the Website following any such amendments acknowledges receipt of the revisions and agreement to and acceptance of any revised Agreement or amendment.
SIMPLIOFFER IS ACTING EXCLUSIVELY ON BEHALF OF THE SELLER AND IS NOT ACTING AS AN AGENT FOR PARTICIPANT IN ANY CAPACITY.
SimpliOffer System
Transparency in Offers. SimpliOffer is not an auction website, and is instead a system for marketing the sale of Property and for the organization and management of offers to purchase Property. Property is listed through a transparent system that allows all participants to see the prices offered by others on a Property. Buyers and Sellers are able to view the prices offered by others during the time period an Event is open (“Event Open Period”) as listed on the Website and Sellers able to select an acceptable offer. Except where expressly identified, Sellers retain the ultimate discretion to accept or reject any, and all, offers submitted.
SimpliOffer Not the Seller or Party to the Sales Transaction. SimpliOffer is not the Seller of any Property and is not a party to any transaction for the Property. The only parties to a transaction for the sale of the Property are the successful Participant and Seller. SimpliOffer assumes no control, responsibility, or liability with respect to any claims, disputes, or issues that may arise as a result of any transaction between Participant and Seller, and upon acceptance of an offer by a Seller, Seller and Participant shall deal directly with one another to consummate the transaction. Participant shall not have any recourse against SimpliOffer related to the transaction for the Property.
Account Registration.
Registration. All Participants must register and create a user account prior to participation in an Event. Participants must be at least 18 years old and able to form legally binding contracts under applicable law. By registering, Participant represents and warrants that Participant has the requisite mental capacity to participate in the Event and to form legal binding contracts, and that Participant is either a United States Citizen or a non-United States Citizen that is authorized and legally able to own real property in the United States. Participant’s registration shall not be construed as SimpliOffer’s review or representation of Participant’s eligibility to participate in the Event or representation as to Participant’s legal rights with respect to ownership of real property. Participant is bound by all offers submitted by his/her user profile.
Keep Username/Password Confidential. Participant’s Username and password shall be kept confidential by Participant and Participant agrees not to share any Username or password with any other persons and will not allow any third-party to use such Username. Participant is not permitted to submit offers on behalf of any third-party. Each Participant is responsible for any offers, and any other actions (including, without limitation, malicious activity), undertaken through Participant’s Username. SimpliOffer is not responsible for a breach of Participant’s account information and/or the unauthorized use of such information by others.
Additional Participation Requirements. SimpliOffer may modify, waive, or impose additional participation requirements for certain Properties or Participants in its sole and absolute discretion or at the request of Seller, including requiring Participant supplying proof of funds prior to submitting an Offer.
Right to Limit Access. SimpliOffer reserves the right to deny, limit, or impose conditions on access to the Website or any Event at any time, or the submission of any offers, for any reason (including, without limitation, Participant’s solvency, credit history, default, misconduct, transaction history, and prior defaults).
Control of Schedule. SimpliOffer, in its sole and absolute discretion, may postpone or cancel an Event, rearrange the order or sequence of the Properties in the Event, modify these Terms by posting notice of modification on the Property Page, remove any Property from the Event, or remove any or all Offers.
Property Description and Due Diligence
Description of the Property. Descriptions of the Property and any information identified in the Property Details section of the Website are supplied by the Seller or Seller’s Broker, or are otherwise supplied from public records, and such information is provided solely for identification of the Property and is provided on an “as is, as available” basis with all faults and defects. SimpliOffer has not independently verified any Property Details or any other information supplied related to a Property and SimpliOffer does not warrant any Property information, and shall in no way be liable for any condition of the Property not being as described and is not responsible for any acts or omissions of the Seller or Seller’s Broker.
Due Diligence. Participant submits an Offer at his/her own risk. All Offers should be based solely on Participant’s independent due diligence and the terms of the Purchase Documents. By submitting an Offer, Participant is deemed to be representing to SimpliOffer, Seller, and Seller’s Broker, that Participant has conducted all necessary due diligence that Bidder deems appropriate or necessary to submit the Offer upon the Terms and pursuant to the requirements for the Event. It is each Participant’s responsibility to conduct its own due diligence and investigate all matters relating to each Property that Participant is interested in purchasing, including the following:
The value, nature, quality or condition of the Property, including, without limitation, the water, soil and geology;
Income to be derived from the Property;
Suitability of the Property for Participant’s intended use;
Compliance with laws, rules, codes, or ordinances;
Habitability, merchantability, marketability, profitability or fitness of the Property for any particular purpose;
The manner or quality of the construction or materials, if any, incorporated into the Property;
The state of repair or lack of repair of the Property;
The existence or future rights to any view from the Property
Conformity of the improvements to any plans or specifications for the Property that may be provided;
Conformity of the Property to applicable zoning or building code requirements;
The existence of soil instability, past soil repairs, susceptibility to landslides and/or sinkholes, 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;
Seismic hazards zone or a state fire responsibility area, or a special flood hazard zone; and
Any other matter with respect to the Property.
Inspections. Unless otherwise set forth on the Event Page, the Property, including all Short Sales, are sold without a Property inspection. For Property where no inspection contingency is offered, Participant must complete any desired Property inspections prior to submitting an Offer. All onsite inspections must be made during a scheduled open house or coordinated with Seller. Participant is not permitted to enter onto any Property without the express permission of Seller. Participant submits all Offers where Property inspection contingencies are not permitted at Participant’s own risk. Participant is responsible for all liability, damages and/or costs directly or indirectly arising from Participant’s inspection, visit, or investigation of the Property. Participant agrees to indemnify, defend and hold harmless Seller and SimpliOffer from any such liability, damages and/or costs, and to maintain all applicable policies of insurance insuring over such liability, damages and/or costs.
AS IS SALE. PARTICIPANT ACKNOWLEDGES AND AGREES THAT ALL PROPERTY IS OFFERED, AND IS BEING SOLD, IN ITS “AS IS” AND “WHERE IS” CONDITION, WITH ALL FAULTS, DEFECTS AND LIMITATIONS, WHETHER OR NOT APPARENT.
Submission of Offer and Acceptance by Seller.
Offers. All Offers submitted during an Event are irrevocable, except where an Offer withdrawal option is expressly identified. Offers are not anonymous and the amount of an Offer or other terms of the Offer, (except for Participant’s name or personal information), may be displayed publicly or otherwise made available to other participants. Offers may be submitted during the Event Open Period. After an initial Offer, subsequent Offers may be subject to a minimum incremental increase, which increment may be modified during the course of an Event.
Security Hold. SimpliOffer may require as part of registration or prior to placing any bid or offer, that Participant authorize a charge to his/her credit card, or other acceptable payment method, in the amount identified for the Event as a “Security Hold” to ensure Participant’s compliance with the Terms, including Participant’s fulfillment of requirements of the Event if Participant is the Successful Bidder. By authorizing the Security Hold, Participant agrees that SimpliOffer may keep the Security Hold as liquidated damages if Participant is the Successful Bidder and: (1) fails to timely complete and sign the Purchase Agreement and all other necessary information and documentation, required for the Event; (2) fails to submit any required earnest money, or (3) otherwise fails to consummate the purchase of the Property pursuant to the terms of the Event and any resulting Purchase Agreement. Participant expressly agrees that the amount of the Security Hold is a reasonable estimate of any damages for Participant’s breach of the Terms and failure to proceed with any requirements upon Seller’s acceptance of Participant’s Offer, and that it would be difficult and impractical for Participant and SimpliOffer to calculate damages otherwise. SimpliOffer’s damages in such event shall be limited to the amount of the Security Hold. SimpliOffer’s recovery for such defaults shall be limited to the amount of the Security Hold.
Offer Terms. By submitting an Offer, Participant is representing that he/she has reviewed all Property Details listed on the Property Page, the purchase and sale agreement, any applicable addenda, Seller’s disclosure documentation, and all other transaction documents (collectively, “Purchase Documents”), included on the Event page. All Offers are based upon the posted Purchase Documents. By submitting an Offer, Participant represents that except as stated in the Purchase Documents, Participant has not relied upon any verbal or written representations, warranties, promises or guarantees whatsoever, expressed or implied, and in particular, that no such representations, warranties, guarantees, or promises have been made with respect to the physical condition, operation, legal condition, or any other matter or thing affecting or related to the Property and/or the offering or sale of the Property.
Purchase Documents. Unless otherwise specified on the Property Page, the Purchase Documents are non-negotiable, and by submitting an Offer Participant is accepting the Purchase Documents and agreeing to consummate the transaction with Seller pursuant to the Purchase Documents. CAUTION: Only the contingencies identified as acceptable in the Property Details section for the Event or identified in the Purchase Documents are included and the sale is otherwise not contingent on future inspections, the availability of financing, or any other contingencies. Except where a financing contingency is included, Participant will be required to consummate the purchase of the Property regardless of inability to obtain financing. Participant’s failure to consummate the transaction pursuant to the Purchase Documents will result in forfeiture of the Security Hold to SimpliOffer and forfeiture of the earnest money to the Seller.
Event Open Period. The Event Open Period is the time period within which Offers may be submitted for review by Seller. The Event Open Period may be extended by Seller at any time, including when an Offer is made near to the end of an Event Open Period. Seller may accept an Offer prior to expiration of the Event Open Period or otherwise end the Event prior to the expiration of the Event Open Period. In the event of early termination of the Event Open Period, neither Seller nor SimpliOffer will be responsible for any reimbursement of expenses incurred by Participant, including any inspection or investigation expense.
Seller Acceptance. Unless otherwise noted in the Property Details, all Offers are subject to Seller acceptance of an Offer (“Accepted Offer”). Seller is under no obligation to sell or approve the sale of the Property, but can review any offers submitted for acceptability Seller’s own discretion. Seller is not obligated to accept any Offer, and may accept any Offer submitted, whether or not the highest Offer. Seller may also reject all Offers in its absolute discretion. Seller shall not be bound by any Offer, even if accepted, unless and until the Purchase Agreement is signed by both Buyer and Seller.
Purchase Price and Purchase Documents.
Purchase Price and Buyer Premium. Unless otherwise noted in the Property Details for a particular Property, the purchase price identified in the Offer to be paid by the Participant for upon an accepted Offer will include a “Buyer’s Fee” equal to the greater of: (1) Five and one half percent (5.5%) of the Offer, or (2) $2,500. The Buyer’s Fee may be greater or less, as identified within the Property Details. Unless otherwise specified for a particular Property, the Buyer’s Fee will be added to Offer to establish the total purchase price payable by Participant for the Property. The purchase price in the Offer does not include other amounts that Participant will be responsible for upon closing of the transaction, which may include property taxes, tax or utility pro-rations, insurance, homeowner association fees, title fees, lender fees, and escrow or closing fees. Information pertaining to additional fees may be set forth in greater detail in the Property Documents. Bidders are reminded and encouraged to consult with a local attorney or other local real estate professional(s) to determine all amounts that may be due from the Participant upon closing. The Buyer’s Fee shall be paid at closing to SimpliOffer.
Signing Purchase Documents. Upon acceptance of Participant’s Offer, final Purchase Documents will be emailed to Participant for electronic signature using the email address associated with Participant’s Username. Participant agrees to sign all Purchase Documents within forty-eight (48) hours after they are sent to Participant. After the Purchase Documents have been fully signed, the Purchase Documents shall govern the relationship between Participant and Seller. Time is of the essence as to Participant’s signing of all Purchase Documents. If Participant fails to timely sign the Purchase Documents, SimpliOffer or Seller may declare Participant to be in default of these Terms, and SimpliOffer may keep the Security Hold and Seller may reject Participant’s Offer, and keep any Earnest Money.
Payment of Earnest Money Deposit. The Purchase Documents for each Property require Participant to pay a deposit to be held pursuant to the terms of the Purchase Documents (“Earnest Money”). The amount of the Earnest Money is identified in the Property Details and specified in the Purchase Documents. Unless otherwise specified in the Purchase Documents, the Earnest Money Deposit must be received in accordance with the terms of the Purchase Documents no later than two business days after Participant receives wire instructions, time being of the essence. If Participant fails to timely deposit the Earnest Money, SimpliOffer or Seller may declare Participant to be in default of these Terms, and SimpliOffer may keep the Security Hold and Seller may reject Participant’s Offer.
Proof of Funds and Additional Information. Seller may require Participant provide proof of readily available funds and/or additional information at any time. Participant must respond to such inquiries within one business day, time being of the essence. If such proof of funds or additional information is not timely received, SimpliOffer or Seller may reject Participant’s Offer. Seller and/or the escrow/closing agent may require additional documentation prior to closing.
Short Sale Properties. Some Properties involve a sale in which the proceeds may fall short of the balance of debts secured by the Property (“Short Sale”). All Offers for Short Sale Properties may be subject to the approval of the applicable lien holders.
Buyer’s Brokers/Agents
Commissions. We encourage real estate broker and agent participation. A cooperating broker commission or referral fee may be offered for some Properties. Please see the applicable Property Details which will control as to any available broker/agent participation and cooperating broker commissions or referral fees for a Property. A broker/agent must be duly licensed as a real estate broker or agent in the state in which the Property is located in order to be eligible to receive a commission. In order to be eligible to receive a commission, the Participant’s broker must be identified with the Offer. Any broker or agent commission to be paid will be based upon the Offer amount, and due and payable by Seller, only if and when the sale closes.
Broker Acting for Buyer. For certain Events, a registered broker/agent may submit Offers on behalf of a buyer identified to SimpliOffer prior to Offer submission. By submitting an Offer on behalf of a buyer, the broker/agent (i) represents and warrants that the broker/agent has received all buyer authorizations and satisfied all legal requirements necessary to submit Offers on the buyer’s behalf, and (ii) acknowledges and agrees that any Offer submitted will be binding upon the broker/agent and the buyer identified at registration to the same extent as if the buyer had submitted the Offer.
Closing
Timing. The timing of Closing will be identified in the Property Details and further subject to the terms of the Purchase Agreement, which once executed shall control between Buyer and Seller. Allocation of allowable closing costs shall be as provided in the Purchase Agreement.
Title and Property Conveyance. Except as identified in the Property Details, title shall be conveyed by Seller at Closing pursuant to the terms of the Purchase Agreement, subject to current taxes, rights-of-way, assessments, easements and other conditions of record, and any exceptions written in the preliminary title report or commitment as well as other standard title exclusions, as set forth in the Purchase Agreement and other related purchase documentation. Properties sold via Quit Claim Deed are conveyed without warranty of title and Participant will take title “as is”. For all Properties where title is conveyed “as is” Participant is responsible for ascertaining insurability of title prior to submitting its Offer, and title exceptions or encumbrances of record at the time of submission of the Offer shall not permit Participant to terminate the Offer or any resulting Purchase Agreement.
Vesting. Participants that desire to take title in the name of an entity, rather than in their individual name of a natural person, should identify that with their Offer and with the Purchase Agreement. Change in vesting of the Property will not be accepted after the Offer has been accepted. The Seller, Servicer, escrow/closing agent, Seller’s Broker and/or settlement attorney may require additional documentation prior to closing in the event an entity will take title to the Property.
Closing Process. SimpliOffer does not represent or warrant the manner in which the sale process will be managed after the Offer is accepted by Seller. Once a Purchase Agreement is signed, the Purchase Agreement shall control as to all terms and processes for closing between Seller and Buyer. SimpliOffer shall have no responsibility to coordinate or otherwise assist in facilitating the closing or any other aspects of the transaction between Buyer and Seller.
Financing. SimpliOffer does not perform lending or financing services. In order to provide users with access to additional resources and services, the Website provides links to certain third-party websites. SimpliOffer does not endorse nor does it support the content (including without limitation information in the form of text or graphics) or accuracy of content on any third-party websites. SimpliOffer is not responsible for the content of any such third-party websites and expressly disclaims any responsibility for the content on such third-party websites. By clicking on a third-party link, each user acknowledges that he/she/it is leaving the Website and that SimpliOffer is no longer responsible for the user’s experience on such sites. Privacy and security policies on such third-party websites may differ from those presented on the Website. Any business, financial or other transactions or agreements you enter into with a third party listed, advertised or otherwise accessed through the Website is solely between you and such third party.
Miscellaneous
Marketing and Publication. SimpliOffer, Seller and/or their agents may issue press releases and other public communications regarding the Event and/or any Property offered or sold during at an Event, including the sale price, number of offers, or any other information concerning the Property or Event.
Governing Law. The respective rights and obligations of the parties with respect to this Agreement and the conduct of the Event shall be governed by, interpreted and enforced under the laws of the state of Wisconsin, without reference to its conflict of laws principles. Venue for any action shall be in Milwaukee, Wisconsin. This Agreement is provided to you from Milwaukee County, Wisconsin, all payments due SimpliOffer shall be paid, and all other performance required shall be made in, Milwaukee County, Wisconsin.
ARBITRATION. All disputes, of whatever kind between SimpliOffer and Participant, arising out of or relating to the Event, this Purchase Agreement, or any Offer for the Property, shall be resolved by final and binding arbitration pursuant to the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association and shall be governed by the Federal Arbitration Act. Venue for arbitration shall be Milwaukee, Wisconsin. Participant acknowledges that, with respect to all such disputes, Participant voluntarily and knowingly waives any right it may have to a jury trial tor to participate in any class action or class litigation as a representative of any other persons or as a member of any class of persons, or to consolidate its claims with those of any other persons or class of persons. If this prohibition against class litigation is ruled to be unenforceable for any reason in any proceeding, then this prohibition against class litigation shall be void and of no force and effect in that proceeding. This paragraph is governed by Wisconsin Law. The arbitrator shall award to the substantively prevailing party, if any, as determined by the arbitrators, all of its costs and fees, including reasonable pre-award expenses of the arbitration, and all arbitrators’ fees, administrative costs, travel expenses, out of pocket costs, witness fees, expert witness fees, and attorney’s fees.
Neither Seller nor SimpliOffer will be liable for any damages or injury, including but not limited to special or consequential damages that result from the use of, or the inability to use, the Website, the materials on the Website, the Event, or any Offer. The above limitations or exclusions may not apply to you to the extent that applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, in which event the Auctioneer's, Seller's, Servicer's or Seller's Broker's liability to you for losses, damages and causes of action (in contract or tort, including without limitation negligence, or otherwise) will not be greater than the amount you paid to access the Website.
Participant agrees to comply with all applicable laws, regulations, and ordinances regarding his/her activities and use of the Website, and regarding your purchase of any Property.
In the event that any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such invalidation shall not invalidate the remaining portions of this Agreement, and those remaining provisions shall be enforced and remain in full force and effect.
LEGAL DISCLAIMERS/AUTHORIZATION.
No Warranties by SimpliOffer. SIMPLIOFFER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, CONCERNING OR WITH RESPECT TO THE PROPERTIES. SIMPLIOFFER HEREBY DISCLAIMS ALL WARRANTY OR REPRESENTATION OF THE PROPERTY AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT.
RELEASE OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, PARTICIPANT AND ANYONE CLAIMING BY, THROUGH OR UNDER PARTICIPANT HEREBY FULLY AND IRREVOCABLY RELEASES SELLER, WEBSITE, SELLER’S BROKER AND SIMPLIOFFER AND THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, ATTORNEYS, BROKERS, AUCTIONEERS, BUSINESS PARTNERS AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL CLAIMS THAT HE/SHE MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST ONE OR MORE OF THE RELEASED PARTIES FOR ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, FEE (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES), FINE, PENALTY, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING THE PROPERTIES OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY LIENS, CONSTRUCTION DEFECTS OR ENVIRONMENTAL MATTERS.
CREDIT CARD AUTHORIZATION. SIMPLIOFFER IS AUTHORIZED TO CHARGE THE CREDIT CARD PROVIDED BY PARTICIPANT AT REGISTRATION TO SATISFY ALL OR PART OF THE SECURITY HOLD/LIQUIDATED DAMAGES OWED BY PARTICIPANT.
