Terms and Conditions
Buyers Terms and Conditions (Buyers Terms)
1.Information About Us
1.1.http://www.EXITbay.com is a website (Our Site) operated by XXX Limited (We or Us). We are a limited company registered in XXX under company number XXX and have Our registered office at XXX and our IVA number is XXX.
2.1. In these Buyers Terms the following terms shall have the following definitions unless stated otherwise:
Active Bid means a Bid whilst the relevant Bidding Window remains open;
Active Listing shall have the meaning given to it in clause 4.8;
Anti-Sniping Tool shall have the meaning given to it in clause 6.2.b;
Bidding Process means the process described at clause 6.2;
Bidding Window shall have the meaning given to it in clause 4.4.c subject to any early close where a Buyer clicks the Buy Now Button in accordance with clause 6.2.g;
Bid Only has the meaning given to it in clause 4.3.a;
Bid or Buy Now has the meaning given to it in clause 4.3.b;
Buyer means a person registered on Our Site and acting in accordance with the Buyers Terms being a person interested in purchasing Property shown on Our Site;
Buy Now means an invitation for a Buyer to reserve the Property for purchase;
Buy Now Button means a button or some other similar device on Our Site which a Buyer clicks to register its desire to reserve a property for purchase;
Buy Now Price means the price, set by the Seller when creating the Listing, which the Seller would be prepared to accept to immediately reserve the Property and to make the Listing an Inactive Listing so as to prevent any further bids and/or interest being registered by any other Buyer;
Client Account means a designated account in which we shall hold Reservation Fees received from Buyers in accordance with these Buyers Terms;
Highest Bidder means the bidder who has the highest bid recorded on the bid log at any given time. Where two bidders both have bid the same amount then the highest bidder will be deemed as the bidder who bid that amount at the earliest time;
Inactive Listing shall have the meaning given to it in clause 4.7;
Late Bid shall have the meaning given to it in clause 6.2.b;
Listing Duration shall have the meaning set out in 4.4.a;
Listing means the posting on Our Site containing the detail set out in clause 4.1;
Open Day means a day or days on which invited registered Buyers invited to visit the Property to carry out a tour of the Property;
Property means the property which is referred to and which is the subject of the Listing;
Reservation Fee means the fee set out at clause 6.3 and calculated in accordance with clause 8.3;
Reservation Period shall have the meaning given to it in clause 6.3;
Reserve Price means the minimum price set by the Seller when creating the Listing;
Seller means registered on Our Site and acting in accordance with the Sellers Terms being a person who has created a Listing to market a property for sale on Our Site;
Services means those services provided by Us to the Buyer as described more fully in clause 3;
Starting Price means the price at which the bidding shall be required to start;
Termination Fee means a fee payable by the Buyer (as calculated in accordance with clause 12) in order to terminate this Agreement.
Unmortgageable means the Property cannot be mortgaged and/ or where the mortgagee provides a retention clause to the value of 100% of the Property.
Winning Bid shall have the meaning given to it in clause 6.2.c.
Winning Bidder means the bidder who is announced as the bidder that has won the auction. The winning bidder will have the highest bid recorded on the bid log and the auction has closed out with the highest bid:
a. Meeting or exceeding the original Reserve Price
b. Meeting the agreed revised Reserve Price after negotiation with the highest bidder as referred to in clause 6.2, d. ,i. ,A
3.1. We provide a marketing website to allow Sellers to offer their properties for sale and to facilitate Buyers in locating and initiating the purchase process.
3.2. We do not have possession or own any of the properties listed on Our Site and, with the exception of issuing the Memorandum of Sale (see clauses 6.4 and 6.5 below), We are not involved in the actual transaction between Seller and Buyer and the contract for the purchase of any property remains solely between the Seller and Buyer. We are not an auctioneer.
3.3. Our Site is free to access by the general public but there are areas of Our Site that are only available for access if you have formally registered with us as either a Buyer or a Seller and have accepted the additional terms which apply to Sellers and/or to Buyers.
3.4. Following registration Buyers are permitted to bid on or to reserve Properties in accordance with clause 6.
3.5. We shall:
a. make Listings which are completed by Sellers that have been verified by Us (properly and in accordance with Our Sellers Terms) available on Our Site;
b. administer the registration process for Open Days, where the Seller indicates during the creation of a Listing that it wishes Us to host one or more Open Days to allow interested Buyers to attend and view the Property;
c. make available the Bidding Process (which includes administering the process to allow bids only from Buyers that have been verified by Us) as detailed more fully in clause 6;
d. prepare the Memorandum of Sale in the circumstances set out in clause 6.4;
e. send out the Memorandum of Sale in accordance with clauses 6.4 and 6.5; and
f. provide a dispute resolution forum in accordance with clause 15.
4.1. A Listing must consist of:
a. a textual description of one Property;
b. a Starting Price;
c. details and/or links to the (EPC) Energy Performance Certificate;
d. up to 12 images of the Property (which may include floor plans); and
e. a Reserve Price (this will not be visible on Our Site).
4.2. The Seller may also specify a Buy Now Price for the Property in the Listing.
4.3. Sellers are required to specify whether the Property is to be marketed as:
a. an invitation for a Buyer to place a bid with a view to the Winning Bid reserving the Property for purchase with no option to Buy Now (Bid Only); or
b. an invitation for a Buyer to place a bid with a view to the Winning Bid reserving the Property for purchase with the alternative option being open to a Buyer to reserve the Property for purchase at any point during the Bidding Window by the Buyer clicking the Buy Now Button and agreeing to reserve the Property for purchase at the Buy Now Price (Bid or Buy Now).
4.4. At the point of creating the Listing, the Seller may choose each of the following from the options provided on Our Site:
a. the duration of the Listing, being the total duration that the Listing will be shown as either an Active Listing or Inactive Listing on Our Site (Listing Duration);
b. the period (if any) that the Seller wishes the Listing to be added as an Inactive Listing prior to the opening of the Bidding Window; and
c. the duration during which new bids may be placed (the Bidding Window) once the Listing becomes an Active Listing. The default duration of the Bidding Window shall be 2, 4, 7, 14, 21 or 28 days (subject to operation of the Anti-Sniping Tool).
4.5. Once the Listing is created and is submitted, the Listing shall be reviewed by Us to ensure that all the required information is present and to ensure that the Listing meets the Acceptable Use Policy. We will also carry out checks to confirm the Seller's identity.
4.6. Once a Listing is approved by Us, the Listing may be added to Our Site as either an Active Listing or as an Inactive Listing and We shall also arrange at this point for the Listing to be shown on third party property sales advertising websites (for example, Rightmove).
4.7. An inactive Listing shall be shown on Our Site to the general public but shall not be available for interested Buyers to bid on unless and until the Listing becomes an Active Listing and may include Listings where the Bidding Window has recently closed (an Inactive Listing).
4.8. An Active Listing shall:
a. be shown on Our Site to the general public; and
b. be available for interested Buyers to register their interest in the Property by either placing a bid or clicking the Buy Now Button.
4.9. The Listing will remain on Our Site for the Listing Duration but shall only be available to the Buyers who register their interest whilst the Listing is an Active Listing.
4.10. We reserve the right to remove any Listings which do not comply with the Sellers Terms or the Terms of Website Use. We shall also remove Listings within a reasonable period following the conclusion of the Bidding Window (unless we are requested not to in accordance with the Sellers Terms).
5. Open Days
5.1. When creating a Listing, each Seller shall be given the option of holding one or more Open Days to allow interested Buyers to view the Property.
5.2. Where the Seller has indicated that it wishes to hold an Open Day, it shall also specify the time and date on which it wishes to hold such Open Day and the duration of such Open Days.
5.3. Interested Buyers shall be required to register their interest in attending the Open Day and We shall provide Sellers with a guest list of the Buyers who have registered to attend the Open Day.
5.4. We take no responsibility for the actions of any Buyer or any Seller during the course of an Open Day.
6.1. In addition to displaying each Listing, Our Site provides a platform to allow interested Buyers to place bids against properties which they wish to purchase.
6.2. The following process shall apply where a Seller has designated that the Listing is to be marketed pursuant to the Bid Only option or the Bid or Buy Now option:
a. Once the Listing appears on Our Site and is an Active Listing any interested Buyer will have the duration of the Bidding Window (subject to any extension by operation of the Anti-Sniping Tool) in which it may enter a bid (in accordance with Our Buyers Terms) for the Property.
b. If a bid is placed by a Buyer in the last 3 minutes of the Bidding Window (a Late Bid), the Bidding Window will be automatically extended for an additional period to ensure that such Late Bid is at least 3 minutes old when the Bidding Window closes to allow other Buyers the opportunity to react to the Late Bid. This process shall continue until no further bids are placed during the last 3 minutes of the Bidding Window (as may have been extended pursuant to this clause) or until 72 hours after the Bidding Window was originally due to close. The process described in this clause shall be referred to as the Anti-Sniping Tool. By way of example, if the Bidding Window was due to close at 16:00 and a bid was placed at 15:58 (i.e. with 2 minutes to go), the Bidding Window would be automatically extended to 16:01 to ensure the bid would be at least 3 minutes old when the Bidding Window closed. Provided no other bid was placed during the period between 15:58 and 16:01, the Bidding Window shall then close. If another bid was placed during this period, the Bidding Window would be further extended in accordance with this clause.
c. The highest bid made in accordance with Our Buyers Terms during the Bidding Window (as may have been extended by operation of the Anti-Sniping Tool) which meets or exceeds the Reserve Price shall be classed as the Winning Bid.
d. Where the highest bid does not meet or exceed the Reserve Price, the Property will not be reserved and We shall carry out a review of the Bidding Process and the Seller shall be given the following options:
i. to select from any one or more of the following:
A. consider selling to the highest bidder at the highest bid recorded on the bid log or at a negotiated higher price. Under each scenario the auction would be closed out and the Highest Bidder would be announced as the Winning Bidder. Any such negotiation would be handled by the managing consultant.
B. specify another Bidding Window for the Listing (this could be for as little as 30 minutes or may be longer); and/or
C. alter the Listing to market it subject to the Buy Now option; and/or
D. alter the Listing to alter the Reserve Price; and/or
E. keep the Listing as an Inactive Listing; or
ii. withdraw the Listing from Our Site.
e. Where the Seller has chosen to relist the Listing, the Listing shall progress through the Bidding Process in the usual way as set out above.
f. A Winning Bid will not result in the immediate sale and purchase of the Property but will give the Buyer a period of 48 hours in which to pay a Reservation Fee to reserve the Property to allow both the Buyer and Seller to proceed to the formal exchange of contracts. Please note that the payment of a Reservation Fee is completely separate from any payment by the Buyer of the purchase price and the Reservation Fee will not be credited or reduce the amount of the purchase price for the Property.
g. Where the Seller has designated a Buy Now Price and, during the Bidding Window, a Buyer clicks this option and confirms (in accordance with Our Buyers Terms) that it wishes to register its interest to purchase the Property at the Buy Now Price, the Bidding Window will end immediately and, subject to Our verifying that the Buyer has acted in accordance with the Buyers Terms, the Buyer will have been successful in reserving the Property for 48 hours.
h. A Buyer clicking the Buy Now button will not result in the immediate sale and purchase of the Property but will give the Buyer a period of 48 hours in which to pay a Reservation Fee to reserve the Property to allow both the Buyer and Seller to proceed to the formal exchange of contracts. Please note that the payment of a Reservation Fee is completely separate from any payment by the Buyer of the purchase price and the Reservation Fee will not be credited or reduce the amount of the purchase price for the Property.
6.3. Where a Buyer has submitted a Winning Bid or has clicked the Buy Now Button to reserve the Property, the Buyer shall have a period of 48 hours from when the Bidding Window ends or from clicking the Buy Now Button (the Reservation Period) to pay a fee in accordance with clause 9.1, to reserve the Property (the Reservation Fee).
6.4. Once the Reservation Fee has been received, We shall prepare a Memorandum of Sale recording the intention of the Seller to sell and the Buyer to buy the Property which was the subject of the relevant Listing.
6.5. We shall send the Memorandum of Sale to each of the following:
a. the Seller;
b. the Buyer;
c. the lawyers named by the Seller (as notified to Us); and
d .the lawyers named by the Buyer (as notified to Us)
in each case via email using the information provided by the Seller and Buyer during registration.
7. Buyers Obligations
7.1. The Buyer:
a. shall comply with the Terms of Website Use and the provisions of these Buyers Terms at all times when using and acting in connection with the Website;
b. confirms that it has the necessary authority, power and capacity to agree to these Buyers Terms which includes the Buyer being 18 years or older and having full mental capacity;
c. confirms that it has the necessary authority, power and capacity to agree to place a bid and/or click the Buy Now Button to reserve a Property;
a. A bid that you or your agent submit properly and in accordance with these Buyers Terms is the Winning Bid; or
b. you or your agent click the Buy Now Button;
You shall, during the Reservation Period, pay the Reservation Fee to Us to reserve the Property for purchase.
8.2. If you fail to pay the Reservation Fee during the Reservation Period the Property will not be reserved and the Seller shall be entitled to re-market the Property to other Buyers but you shall still be liable to us for the Reservation Fee.
8.3. The value of the Reservation Fee is dependent on the price bracket.
The value of the accepted Winning Bid or the Buy Now Price where the Buyer has clicked the Buy Now Button;
a. Property purchase price from 1€ – 500,000 €: Reservation Fee: 6,000 €
b. Property purchase price: 500,001 € plus: Reservation Fee: 10,000 €
9. Reimbursement of Reservation Fee
9.1. Upon receipt, the Reservation Fee shall be held in our Client Account pending confirmation of exchange of contracts or earlier release in accordance with these Buyers Terms.
9.2. Subject to clause 9.6, we shall not release the value of the Reservation Fee to our trading accounts until the earlier of the following:
a. confirmation from the Buyer and Seller that contracts for sale have been exchanged in relation to the Property to which the Reservation Fee relates; or
b. the operation of clause 9.3 and/or 9.5(b).
9.3. Subject to clause 9.3 (a), if, having paid the Reservation Fee, you withdraw from the purchase process then you shall forfeit the Reservation Fee and We shall be entitled to retain and use the same. A Buyer does not have the right to have the Reservation Fee returned due to their own personal circumstances such as affordability.
a. Only in the following circumstances can the Buyer withdraw from the purchase and have the Reservation Fee returned:
i. There is a problem with title and the property should not have been marketed for sale.
ii. A problem uncovered during the searches that makes it unreasonable for the Buyer to continue with the purchase.
iii. other significant issue(s), such as a serious structural problem, where the cost is significant to rectify, rendering the property Unmortgageable. This does not apply if the Listing states that the property is unsuitable for purchase via a mortgage.
9.4. If, having paid the Reservation Fee, you withdraw from the sale and purchase process with good cause as We shall determine acting reasonably and in accordance with clause 9.3 above, We shall reimburse you the value of the Reservation Fee.
9.5. Subject to clause 9.6, if, after you have paid the Reservation Fee, the Seller withdraws the Property from the market and/or withdraws from the sale and purchase process, we shall reimburse you the value of the Reservation Fee and the Seller shall be liable to pay Us an amount equal to the Reservation Fee in accordance with the Sellers Terms.
9.6. Where the Seller's withdrawal from the sale and purchase process is attributable wholly or mainly to unreasonable actions on your part, clause 9.5 shall not apply and We shall treat the withdrawal as a withdrawal by the Buyer under the circumstances of clause 9.2 (i.e. a withdrawal without good cause) and you shall forfeit the Reservation Fee. For the avoidance of doubt, this shall include circumstances where the Buyer fails to engage with the sale and purchase process. In order to help assess the Buyer’s conduct the following structure (hereinafter known as milestones), shall be used:
|Stage||From date of Memorandum of Sale|
|Surveys to be completed:||No later than day 20|
|Mortgage to be finalised:||No later than day 50|
|Completion:||No later than day 60|
All reasonable endeavours must be made to exchange contracts within 28 days following the Draft Contract being received by the Buyer's Lawyer.
9.7. Subject to the extension that may be granted in the circumstances set out in clause 9.8, where after a period of 2 months from the conclusion of the Reservation Period, We have not been contacted by either the Buyer or Seller to indicate the progress of the sale and purchase, We shall be entitled to release and use the Reservation Fee and clauses 9.4 and 9.5 (reimbursement) shall no longer apply.
9.8. We consider 60 days to be sufficient time to complete the sales process. If owing to extraordinary circumstances further time is required to complete the sales process We should be notified in writing by both the Buyer and Seller before the expiry of 2 months from the conclusion of the Reservation Period. Thereupon we shall exercise our discretion as to whether further time shall be allowed and, if approved by Us, the length of any such extension. The Buyer and Seller terms shall apply to this new date.9.7. Subject to the extension that may be granted in the circumstances set out in clause 9.8, where after a period of 2 months from the conclusion of the Reservation Period, We have not been contacted by either the Buyer or Seller to indicate the progress of the sale and purchase, We shall be entitled to release and use the Reservation Fee and clauses 9.4 and 9.5 (reimbursement) shall no longer apply.
9.9. For the avoidance of doubt, where either the Buyer or Seller has withdrawn from the sale and purchase process and the relevant Property remains unsold. We shall be entitled at our discretion (and upon the request of the Seller) to re-list the Property on Our Site.
10. Your Account and Password
10.1. Where a Buyer is provided with a user identification code, password or any other piece of information as part of Our security procedures, it must treat such information as confidential and it must not be disclosed to any third party.
10.3. If a Buyer knows or suspect that anyone else knows their user identification code or password, that Buyer must promptly notify Us at admin@EXITbay.com
11. Our Rights to Suspend Your Account and/or Terminate this Agreement
11.1. Where there has been a breach by you of Our Acceptable Usage Policies or of any of your obligations under these Buyers Terms and such breach is more than a trivial breach, we reserve the right to take any or all of the following actions:
a. terminate this agreement;
b. immediate temporary or permanent withdrawal of your right to use Our Site;
c. removal without warning of any posting or material uploaded to Our Site;
d. bring legal proceedings against you for the reimbursement of any costs or expenses that We have lost as a result of a material breach of Our Acceptable Usage Policy or these Buyers Terms, and Our costs may include but would not be limited to administrative and legal costs.
11.2. If we terminate this agreement under clause Error! Reference source not found. after you have paid the Reservation Fee but before we have provided You with a Memorandum of Sale, We will either provide you with the Memorandum of Sale or refund to you the Reservation Fee.
12. Your Rights to Terminate this Agreement
12.1. You may terminate this agreement immediately at any time upon the provision of notice and payment of any applicable Termination Fee (determined in accordance with this clause 12). Where, in accordance with these Buyers Terms a Termination Fee does not apply, you may terminate this agreement immediately at any time by contacting us at admin@EXITbay.com requesting that we close your account with Us. Please note that you will be unable to request the closure of your account request the closure of this agreement where there is an outstanding Fee if you seek to close this agreement when you still have Active Bids clause 12.5 shall apply.
12.2. Where you wish to terminate this agreement to request the closure of your account and you have no Active Bids, provided that any fees previously incurred pursuant to clause 8.1 have been paid a Termination Fee will not apply.
12.3. Where you wish to terminate this agreement by closing your account and you have no Active Bids but any fees previously incurred pursuant to clause 8.1 remain outstanding you may not terminate this agreement or close this agreement until Termination Fee(s) equivalent to the value of the Reservation Fees has been paid. For the avoidance of doubt, where the Termination Fee(s) have been paid, you shall no longer be liable for any fees under clause 8.1.
12.4. Where you have one or more Active Bids and wish to terminate this agreement and close your account, the termination and closure shall not take effect unless and until:
a. an Active Bid of higher value is placed by another Buyer in respect of each Listing on which you have an Active Bid;
b. the Bidding Window(s) of the Listing(s) against which you have Active Bids has/ have ended and you do not have any Winning Bids;
c. where the Bidding Window(s) close(s) and you do have any Winning Bids, then clause 8.1 shall apply and you shall be required to pay Us the Termination Fee(s) in accordance with 12.4 prior to being able to terminate this agreement.
13. Liability and Disclaimer
13.1. Nothing in these Buyers Terms excludes or limits Our liability for death or personal injury arising from Our negligence (or otherwise where the Seller is a consumer), Our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under Spanish law. In certain circumstances it is not possible for Us to limit or exclude Our liability and this is particularly the case if you are a consumer. Where you are a consumer, the limitations and exclusions of liability that are set out in clauses 13.6 and 13.7 shall not apply to you but the remainder of this clause 13 shall apply to you.
13.2. The content on Our Site is largely user generated and is presented for general information purposes only. While We update Our Site regularly We cannot guarantee nor do We warrant or represent that the information that is contained on it is always current at the time that the information is displayed.
13.3. We make every effort to ensure so far as is reasonably possible to guard against computer viruses or other malicious programmes but you accept that by using Our Site that there is a risk and you should take your own precautions to guard against computer viruses or other malicious programmes which could be downloaded.
13.4. As part of the service We offer We also reserve the right to close or suspend the usage of it by giving you notice in writing where We deem it necessary or appropriate to do so. We will only take this action where you are in breach of the Acceptable Use Policy that is more than a trivial breach and/or We reasonably consider it to be in your interest for us to do so.
13.5. It is your responsibility to ensure that any party or representative that you appoint to represent you is aware of these Buyers Terms and that they comply with these Buyers Terms.
13.6. Subject to clause 13.1, where you are a business user, our liability for loss and damage suffered by you shall be as follows:
A. to the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to Our Site or any content on it, whether express or implied;
B. to the fullest extent permitted by law, We shall not be liable to you in respect of any losses:
i. incurred as a result of any reliance placed on any information contained on Our Site; or
ii. caused as a result of any computer virus or other malicious programme which is found to originate from Our Site.
C. to the fullest extent permitted by law, We shall not be liable to you for any indirect losses including (but not limited to):
i. loss of profits, sales, business, or revenue;
ii. business interruption;
iii. loss of anticipated savings;
iv. loss of business opportunity, goodwill or reputation; or
v. any other indirect or consequential loss or damage.
arising out of or in connection with these Buyers Terms even if such losses were foreseeable at the time that you agreed to these Buyers Terms.
13.7. Subject to clauses 13.1 and 13.6, where you are a business user, the extent of Our liability to you or to any third party whether for breach of contract, misrepresentation, tort (including negligence), breach of statutory duty arising out of or in connection with these Buyers Terms shall be limited to the higher of:
A. 3,000 €; or
B. 125% of the applicable Reservation Fee.
13.8. Subject to clause 13.1, where the Buyer is a consumer, We are responsible to you for your foreseeable loss and damaged that is caused by us. If we fail to comply with these Buyers Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill. We are not responsible to you or to any third party for:
A. losses that were not foreseeable as a probable result of the breach of these Buyers Terms to both parties when you accepted these Buyers Terms;
B. losses that were not caused by a breach of these Buyers Terms by Us or Our officers, employees, agents, contractors or subcontractors; and or
C. losses incurred in connection with the operation of a business.
14. Personal Details
15. Dispute Resolution
15.1. In the event of any dispute between us, we will endeavor to try and resolve the matter within 28 days. However should this not be possible then we reserve the right to refer the matter for independent mediation and conciliation. By accepting these Buyers Terms you consent to disputes being dealt with in this way.
16. Applicable law