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Sale Event Terms & Conditions / Bidder Confidentiality

Scope

These Sale Event Terms and Conditions (the “Terms”) apply to each sale event (each, a “Sale Event”) conducted for real property, mortgage notes and certain mezzanine notes (each a “Property” and collectively the “Properties”) featured on this website, RealINSIGHT Marketplace (“RIM”), that are being sold on behalf of the owners of such Properties (each an “Owner” and collectively the “Owners”). For the purposes of these Terms, an entity or individual who participates in a Sale Event is referred to as a “Bidder” and the amount a Bidder submits as an offer to purchase a Property is referred to as a “Bid”.  The Bidder that is notified that its Bid is the winning Bid is referred to as the “Buyer”. The terms “Buyer,” “Bidder,” and “Owner” shall also refer to the agents, principals and affiliates of each.

CWFS-REDS LLC (“CW REDS”) holds an exclusive license to use and maintain RIM from CWFS Insight LLC (“RI”).  CW REDS, together with its retained brokers, auctioneers and auction firms, shall be referred to as “REDS”.

These Terms apply to all RIM Property sales and RIM’s Terms of Use and Conditions, Privacy Terms (the “Privacy Terms”) and FAQs (the “RIM FAQs”) are incorporated into these Terms by reference.  By using RIM and any related services, Bidder agrees to be bound by these Terms.  By submitting a Bid on any Property, Bidder further agrees to any additional terms and conditions included on the Property Webpage (as defined herein) at the time of the Bid.

From time to time, CW REDS may update these Terms and will notify each registered Bidder that changes have been made to these Terms using the email address provided in such Bidder’s registered account.  RIM will, at all times, reflect the most updated version of these Terms and other applicable policies and Bidders are advised to read these Terms and all other terms and conditions posted on any Property Webpage prior to bidding on any Property.  Additionally, the RIM FAQs include important information about these Terms and the conduct of Sale Events that each Bidder is advised to review prior to bidding on any Property.  In the event that a Bidder does not agree with these Terms or any other terms, conditions or policies (including the RIM FAQs) included on RIM, such Bidder’s sole recourse is to cease use of RIM.

Registration

Only Bidders with an active registration and account may participate in a Sale Event(s). In order to register, each Bidder must provide the following:
  • Full name
  • Address
  • Phone number
  • Confirmation that a registered Bidder that is a natural person is over the age of 18
  • Certain billing and financial information
  • Current email address


CW REDS reserves the right to accept a registration, waive registration requirements, require additional registration information or reject or terminate any registration of any party at any time in its sole and absolute discretion.  For information regarding the disclosure and use of the information that Bidders provide through registration, please consult the Privacy Terms. The RIM FAQs also provide important information about the registration process.

No registration fee is required, however CW REDS reserves the right to change this policy in the future.

Bidding and Buying

By bidding on a Property, Bidder represents and warrants that Bidder (i) is a sophisticated purchaser with knowledge and experience in financial and business matters, particularly with respect to matters relating to the purchase, financing, sale, origination, or ownership of Properties, and (ii) can evaluate the merits and risks of investment in the Properties and can bear the economic risks of purchasing such Properties. Bidder further represents and warrants that Bidder will independently make its own investment analysis of the Properties and decision about whether to submit a Bid for any Property, based on Bidder’s own findings and conclusions, with such other due diligence and investigations as Bidder may choose to perform. If bidding on a Property that is a mortgage note or mezzanine note, Bidder further represents and warrants that Bidder is an “accredited investor”, a representative of an institution that qualifies as an “accredited investor”, or a “qualified institutional buyer”, as each of those terms are defined by the Securities Act of 1933.  Each Bidder further understands and agrees that each Owner is under no obligation to enter into a Purchase Agreement (as defined herein) with any Bidder and each Owner reserves the right, exercisable in such Owner’s sole and absolute discretion, to reject or accept any Bid for any reason.

(a) Review of Sale Event Documents on Property Webpages; Due Diligence

Each Bidder is responsible for reviewing the form of purchase agreement, any addenda related to such purchase agreement and other related documents (such documents, collectively, the “Purchase Agreement”) accessible on each Property webpage (each, a “Property Webpage”) prior to placing a Bid.  If after reviewing the posted form of Purchase Agreement on a Property Webpage, a potential Bidder would like to propose revisions to such Purchase Agreement, the potential Bidder must submit in writing to CW REDS a detailed explanation of such Bidder’s concern about the Purchase Agreement and any proposed revisions at least thirty (30) days prior to the start of the Sale Event. Any such proposed revisions that are accepted by Owner will be posted to the Property Webpage prior to the start of the Sale Event. No proposed revisions to the terms of the Purchase Agreement will be considered if submitted less than thirty (30) days before the start of the Sale Event.  By placing a Bid on any Property, Bidder agrees to the terms, disclosures, representations, and warranties as set forth in the Purchase Agreement. CW REDS and Owner reserve the right to make changes to the Purchase Agreement prior to the start of the Sale Event.

A Property Webpage may include documents and statements relating to the condition of the Property (“Property Information”), such as the environmental and structural conditions of the Property and the type of encumbrances that may exist on the Property. Each Bidder is responsible for reviewing the Property Information and conducting its own due diligence and inspections of the Property. Any Bidder that wishes to inspect a Property, must make the request to the Owner through the listing broker provided on the Property Webpage. Bidder must coordinate all inspections with the listing broker for the Property, and assumes all risks associated with any inspections with respect thereto. Bidder acknowledges that, in some instances, the Owner may be unable to provide physical access to a Property for inspections. REDS does not assume any liability or responsibility for any inspections or the outcomes thereof. If a Bidder does not inspect the Property prior to the end of the Sale Event, its Bid indicates that it would accept the Property as-is if it becomes the Buyer.

For the avoidance of doubt, if a Property is a mortgage note or mezzanine note, then Bidder shall not (i) contact the Owner of the real property securing such mortgage note or mezzanine note (“Collateral”), (ii) visit the Collateral, or (iii) make contact with any of the parties providing services to the Collateral including, without limitation, any receivers. For the avoidance of doubt, Bidder shall not contact property managers or any tenants with respect to any Property or any Collateral. All Bids should be based solely on Bidder’s independent inspections and due diligence as well as review of the Purchase Agreement and the Property Information. Bidder must submit its Bid at its own risk.

The Property Information available on RIM has been collected by a variety of sources and has not been verified by REDS.  REDS makes no representations whatsoever about the accuracy or completeness of any Property Information or any property webpage. All Bidders are encouraged to seek advice and guidance from independent professionals prior to making any bidding decision with respect to any Property.

Bidder and/or Buyer are responsible for any claim, loss, injury, liability, damage or expense, directly or indirectly arising out of or related to Bidder and/or Buyer’s inspection, visit or other investigation of the Property. Bidder and/or Buyer agree to indemnify, defend and hold harmless RIM, REDS and Owner from any such claim, loss, injury, liability, damage or expense, including all reasonable attorneys’ fees and costs with respect to the foregoing, and further agree to maintain sufficient insurance coverage to fully satisfy its indemnification obligations set forth herein.  Owner and CW REDS each reserve the right to require any Bidder to provide satisfactory evidence that demonstrates its ability to enter into the Purchase Agreement, to pay the amount of any required deposits and to consummate the purchase of a Property and pay the amount of the winning Bid (the “Purchase Price”) and any associated fees should such Bidder be selected as the Buyer. Bidder/Buyer agrees to provide such evidence within the time frame requested by Owner and CW REDS. If a Bidder and/or Buyer fails to provide the requested evidence within the required time frame, Owner may deem the Bidder/Buyer to be in breach of these Terms and Owner may reject Bidder’s Bid.

(b) Intent to Purchase; Failure to Purchase

Bidder agrees that by placing a Bid on any Property, it is confirming its intention to purchase such Property and its ability to pay the full amount of the Purchase Price of such Property in the manner set forth in the Purchase Agreement.  Except as otherwise set forth on the applicable Property Webpage, each placed Bid is IRREVOCABLE, final upon submission and constitutes a legally binding commitment to purchase such Property in accordance with these Terms in the event that such Bid is designated as the winning Bid.  Except as set forth in paragraph (h) [Bidding and Buying] or the applicable Purchase Agreement, a Bid will be considered final when Owner both executes and delivers the Purchase Agreement.

If a Buyer fails to enter into or consummate a Purchase Agreement within the specified time periods after being notified that it has the winning Bid (a “Purchase Failure”), CW REDS may permanently revoke Bidder’s RIM registration.  Each Bidder/Buyer hereby agrees to indemnify, defend, and hold harmless REDS and Owner for any damages (including all reasonable attorney fees) directly or indirectly arising out of or related to any Purchase Failure with respect to such Buyer.

(c) Sale Event Timing

The countdown clock on RIM constitutes an official “time keeper” for each Sale Event. Bidder understands that varying connection speeds, loss of connection, processor speeds and many other factors may delay or cause the loss of the countdown clock interface, as it appears on Bidder’s screen. Each Bidder is solely responsible for maintaining adequate internet connectivity to participate in the bidding process and under no circumstance will REDS and/or its affiliates be responsible for placing a Bid on Bidder’s behalf, or leaving the bidding open beyond the Sale Event end time.

CW REDS reserves the right, exercisable in its sole and absolute discretion, to extend the time period during which bidding is open.  In the event that a Bid is submitted when the countdown clock has two (2) minutes or less remaining before the end of the Sale Event, the countdown clock will automatically reset to three (3) minutes. Bidder understands and acknowledges that such resets may not occur or may occur multiple times in the course of a Sale Event.

(d) Bidding Conduct

By using RIM, Bidder agrees to conduct itself fairly, honestly, and in good faith. Any attempts by a Bidder to use RIM for Bidder’s own benefit, as a marketing platform, in bad faith or in such a way that would violate any applicable rules, laws, or regulations can result in a complete and permanent revocation of such Bidder’s RIM registration.  By using RIM, Bidder agrees to refrain from submitting any harmful, misleading, fraudulent, or otherwise unlawful materials.

Owner may place a Bid on its own Property (an “Owner Bid”) directly or through a broker or other authorized person unless making an Owner Bid is prohibited by applicable law. No Owner Bid will be disclosed to Bidders unless required by applicable law, in which case such Owner Bid shall be disclosed in accordance with such law(s).  Owner Bids may not exceed the Reserve Price (as defined herein).

Notwithstanding anything contained in these Terms, each of CW REDS and Owner reserve the right, each in in their respective sole and absolute discretion, to accept any Bid, regardless of whether or not such Bid is the highest Bid for the applicable Property.

(e) Winning Bids; Purchase Agreement

Once the Sale Event has concluded and the Buyer has been selected, Buyer will be sent an electronic copy of the Purchase Agreement and instructions for electronic execution thereof (the “Email Instructions”) to the email address provided in Buyer’s registered accounts.  The Email Instructions are part of these Terms and Buyer must execute the Purchase Agreement in accordance with such Email Instructions and within the time frame provided therein (usually within two (2) hours). Failure to execute the Purchase Agreement in accordance with the Email Instructions will constitute a breach of these Terms and may result in the rejection of Buyer’s Bid.

If a Bidder is bidding on behalf of an entity, Bidder may be required to provide sufficient documentation demonstrating its authority to Bid on Property and enter into the Purchase Agreement on behalf of Buyer (which documentation may include, but shall not be limited to, organizational documents and other corporate or entity authorizations with respect to the Bidder).

(f) Deposits

The Purchase Agreement may require Buyer to pay a deposit to the escrow agent associated with the Property sale (an “Earnest Money Deposit”). Such Earnest Money Deposit must be received by the escrow agent in the time frame provided for in the Purchase Agreement. Failure to provide such Earnest Money Deposit in the required time frame may result in Buyer being in breach of the Purchase Agreement and these Terms. In the event that Owner fails to consummate the transaction through no fault of Buyer, the Earnest Money Deposit will be returned promptly by the escrow agent.

(g) Platform Fee

Certain Property Webpages may specify that Buyer must pay a “Platform Fee” at closing. Any required Platform Fee is in addition to the Purchase Price and is due at closing along with the amount of the Purchase Price for the Property (as provided in the Purchase Agreement).

(h) Sale Event Terms; Definitions

Each Property being sold as part of a Sale Event will have an unpublished minimum selling price that Owner is willing to accept for the Property (a “Reserve Price”). If the highest Bid is below the Reserve Price, Owner is under no obligation to sell the Property to any Bidder; provided, however, that Owner, in its sole and absolute discretion, may elect to sell a Property to a Bidder who submits a Bid that is below the Reserve Price.

Certain Bids may be designated as “Subject to Seller Approval” regardless of whether a Bid is below, at or above the Reserve Price. Where a Bid is so designated, Owner reserves the right to approve a Buyer’s purchase, so long as such approval is issued or withheld within the time frame provided in the Purchase Agreement. If Owner withholds its approval through no fault of Buyer, Buyer shall be entitled to the return of any fees or deposits paid in connection with the pending purchase of the Property.

Eligibility

The services offered on RIM are available only to individuals and entities that have the capacity and authority to form legally binding contracts. By using RIM, Bidder represents that it (i) is over the age of eighteen (18) and (ii) has the authority and capacity to form legally-binding contracts. If Bidder is an entity, by using RIM, the individual placing the Bid on such entity’s behalf represents and warrants that (i) he/she is authorized to place such Bid, (ii) that such individual has the authority to execute and deliver the Purchase Agreement and (iii) that Purchase Agreement will be binding upon the entity. Use of RIM is prohibited for individuals under the age of eighteen (18) and for individuals who are not actively registered on RIM or whose registration has been revoked and not reinstated.

Bidder Privacy Terms and Conditions

Use of RIM and participation in any Sale Event may require that Bidder register and disclose certain Personally Identifiable Information (“PII”), including financial information, credit card data, and other payment information, through RIM.  CW REDS will only store Bidders’ PII to the extent necessary for Bidder’s participation in the Sale Event(s). Once such Sale Event(s) has/have concluded and the Buyer has been selected, CW REDS will only retain sufficient PII from each Buyer as is necessary to associate each Buyer with its original transaction.

General Terms and Conditions

(a) DISCLAIMERS

REDS, RI AND THEIR RESPECTIVE EMPLOYEES, AGENTS, PRINCIPALS, AFFILIATES, DIRECTORS, ATTORNEYS, ADVISORS AND SUBSIDIARIES (“REPRESENTATIVES”) MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY PROPERTY, INFORMATION RELATED TO ANY PROPERTY, OR THE SUFFICIENCY OF ANY INFORMATION AND/OR DOCUMENTS ON RIM OR AFFILIATED WITH ANY SALE EVENT. EACH BIDDER RELEASES REDS, RI AND THEIR REPRESENTATIVES FROM ANY AND ALL CLAIMS, WHETHER CURRENT OR FUTURE, AGAINST REDS, RI OR THEIR REPRESENTATIVES. THIS WAIVER IS INCLUSIVE OF ANY AND ALL CLAIMS OF WHICH BIDDER IS CURRENTLY UNAWARE, REGARDLESS OF WHETHER SUCH CLAIMS WOULD AFFECT BIDDER’S RELEASE OF REDS AND/OR RI.

EACH BIDDER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY OTHER SUBSTANTIALLY SIMILAR STATE STATUTES IN OTHER JURISDICTIONS), WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

CW REDS AND/OR OWNER RESERVE THE RIGHT, EACH IN THEIR RESPECTIVE SOLE AND ABSOLUTE DISCRETION, TO REJECT A BID WHERE THE BUYER THAT PLACED SUCH BID IS IN BREACH OF THESE TERMS, IN WHICH CASE THE BUYER WILL PAY TO CW REDS LIQUIDATED DAMAGES IN THE AMOUNT EQUAL TO THE AMOUNT OF ANY EARNEST MONEY DEPOSIT OR IF NO EARNEST MONEY DEPOSIT WAS REQUIRED, TWO PERCENT (2%) OF THE BUYER’S BID FOR THE PROPERTY. IF BIDDER PAID ANY EARNEST MONEY DEPOSIT BY CREDIT CARD, CW REDS RESERVES THE RIGHT IN ITS SOLE AND ABSOLUTE DISCRETION TO CHARGE SUCH CREDIT CARD IN THE AMOUNT EQUAL TO THE REQUISITE LIQUIDATED DAMAGES AS SET FORTH HEREIN. BIDDER/BUYER RECOGNIZES THE DIFFICULTY OF ESTIMATING THE ACTUAL LIQUIDATED DAMAGES TO WHICH CW REDS WOULD BE ENTITLED IN THE EVENT OF A BREACH, AND THEREFORE AGREES THAT THE PRE-DETERMINED VALUE OF LIQUIDATED DAMAGES SET FORTH HEREIN DOES NOT REPRESENT A FORFEITURE OR PENALTY.

Subject to and in accordance with paragraph (a) [Bidding and Buying], Bidder acknowledges and agrees that Bidder will be bidding on the Property pursuant to Bidder’s independent examination, study, inspection and knowledge of the Property, and Bidder is relying upon its own determination of the value and condition of the Property and not on any information provided or to be provided by REDS.  Bidder is relying solely upon its own inspections, investigations, research and analyses in entering into the Purchase Agreement and is not relying in any way upon any representations or warranties, statements, plans, specifications, cost estimates, studies, reports, descriptions, guidelines or other information or material furnished by Owner, REDS or any of its Representatives to Bidder or its representatives, whether oral or written, express or implied, or of any nature whatsoever regarding any such matters.

(b) Online Venue

RIM is a website used by real estate brokers, auctioneers, and auction firms to host the bidding on, and transfer of, Properties and commercial mortgage loans associated with such Properties. RIM itself does not function as an Owner, real estate broker, auctioneer, auction firm or agent of any of the foregoing.

(c) Refusal of Service; Cancellation of Sale Events

CW REDS reserves the right in its sole and absolute discretion to terminate and/or reject a Bid, revoke any registration or approval to Bid and refuse service to any individual or entity, at any time. CW REDS may also, in its sole and absolute discretion, impose conditions on submitting Bids or accessing RIM.

CW REDS reserves the right in its sole and absolute discretion to combine, group together or separate any Properties for sale within a Sale Event, at any time.

CW REDS reserves the right in its sole and absolute discretion to cancel or postpone any Sale Event or the sale of any Property within a Sale Event at any time, whether or not such Sale Event is already in progress.

(d) Forum; Choice of Law

These Terms shall be governed and construed in accordance with the laws of the State of Maryland and any disputes arising under these Terms shall be adjudicated in the state and federal courts located in Maryland with the exception of disputes arising from, or in relation to, Properties located in the State of California, in which case such disputes shall be governed and construed in accordance with the laws of the State of California.

(e) Binding Agreement

No Bid shall be binding on any Owner and an Owner shall only be bound by a Purchase Agreement once such Purchase Agreement has been fully and properly executed and delivered and once the full amount of the Earnest Money Deposit has been paid by Buyer.

(f) Marketing; No Offer to Solicit or Sell

From time to time, REDS may provide marketing materials, including digital advertisements, emails, flyers, and postcards. These materials, and any information posted on websites, shall not constitute an offer to sell any Property, nor shall it constitute a solicitation of Bids.

(g) Waiver of Class Action

Any suit brought by an individual and/or entity against REDS and RI and any of their Representatives must be brought in that entity or individual’s sole capacity. Use of RIM and any associated services with respect to RIM constitutes a waiver of any class action proceedings.

(h) Intellectual Property

Any and all logos, images and other marks displayed on RIM are the sole property of CW REDS or RI.

(i) Compliance with Laws and Regulations

Bidder and any of its associated broker(s) are responsible for compliance with all applicable laws and regulations. Bids submitted during a Sale Event are void where such Bids are prohibited by law. In the event that any Sale Event or sale of Property requires registration under any state securities law, such registration must be completed and verified by the applicable Owner in its sole and absolute discretion prior to consummating any sale.

(j) Licensure

Any brokers, auctioneers and/or auction firms that add any Property to RIM or sell any such Property/Properties shall indemnify CW REDS and Representatives for all damages and costs directly or indirectly arising out of or related to the advertisement and marketing of such Property/Properties on RIM.

(k) Brokers; Cooperating Broker Fees

Real estate brokers are permitted to register and use RIM provided that such real estate brokers shall be fully subject to and bound by these Terms.  Proxy bidding is strictly prohibited on RIM.

Certain Sale Events may offer a commission for cooperating brokers, so long as (i) the cooperating broker has registered on RIM as a broker, (ii) the cooperating broker is identified by the Bidder with whom it is associated and (iii) the Bidder represented by such cooperating broker actually purchases the Property, if Owner determines such Bid to be the winning Bid. A cooperating broker may only be entitled to a commission if such broker meets the following conditions: (i) the broker agrees to these Terms and all other terms and conditions posted on the applicable Property Webpage(s); (ii) the broker is not a family member or an affiliate of the Bidder such broker represents; (iii) the broker is properly licensed in the state(s) in which the applicable Property or Properties is located; (iv) the broker identifies the Bidder such broker is representing prior to the start of the Sale Event (the timing of which shall be determined in CW REDS’s sole and absolute discretion) and (v) the broker is identified by the Bidder/Buyer at the time that such Bidder/Buyer registers on RIM.

Buyer and/or Bidder each agree to indemnify, defend and hold REDS, RIM and their respective Representatives, free and harmless from any claims of any broker(s), representative(s), employee(s), agent(s) or other intermediary(ies) claiming to have represented Owner, Buyer and/or Bidder, respectively, or otherwise to be entitled to compensation, including a cooperating broker fee, directly or indirectly arising out of or relating to the Purchase Agreement or the sale of the Property. This indemnity shall survive both the closing and any termination of the applicable Purchase Agreement.


Updated: June 18, 2018