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Terms of Service

LAST UPDATE: [09.8.2021] S&B INNOVATION LAB LLC. D/B/A AuctionWiser AND ITS AFFILIATES (“AuctionWiser”, “WE”, “OUR” AND “US”) PROVIDES VARIOUS PROPRIETARY TECHNOLOGY SOFTWARE SOLUTIONS FOR USE IN THE CREATION OF TEXT AND COPY, INCLUDING BUT NOT LIMITED TO “AI TEXT GENERATION”, “AI GENERATED COPY”, “AI FOR COPY”, “AI-POWERED COPYWRITING”, AND “COPY GENERATED BY MACHINE LEARNING AND NATURAL LANGUAGE PROCESSING MODELS”  (COLLECTIVELY, THE “SOFTWARE”) AND VARIOUS INTERNET-BASED PLATFORMS, INCLUDING AN ONLINE PORTAL AND AN APPLICATION PROGRAMMING INTERFACE (“API”), FROM WHICH USERS CAN ACCESS AND UTILIZE THE SOFTWARE (COLLECTIVELY, THE “SITE”).

These Terms of Service and License Agreement (“Terms” or “Agreement”) govern your access to and use of the Site and the Software. Please read these terms carefully.

The term “you,” as used in these Terms, means any person or entity who accesses or uses the Site or the Software, either pursuant to a completed subscription registration (“Subscription Registration”) or pursuant to any other agreement with AuctionWiser, and any person or entity who creates an Account and accepts these Terms, including Owners, Authorized Users, and the parents or guardians of Authorized Users, as applicable. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.

THESE TERMS ARE A LEGAL AGREEMENT. BY ACCESSING AND USING THE SITE OR THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SITE OR THE SOFTWARE, AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SITE AND THE SOFTWARE.

AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SITE OR THE SOFTWARE.

AS DESCRIBED BELOW, THESE TERMS DESCRIBE IMPORTANT LIMITATIONS OF THE SITE AND THE SOFTWARE, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

  1. OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND TERMINATION
  1. GRANT OF LICENSE

Subject to the terms of this Agreement, we grant to you a limited, non-exclusive, non-transferable, non-assignable, revocable license to access and use the Site and the Software as described herein. In connection with the license of the Site and the Software, the parties acknowledge and agree that AuctionWiser is expressly not selling to you, and you are not acquiring any right, title or interest in or to, any patents, copyrights, trade secrets, trademarks, service marks, trade names, the company name of AuctionWiser, inventions, works of authorship, or any other intellectual property of AuctionWiser (“AuctionWiser Intellectual Property”), and you will use the Site and the Software strictly in accordance with our standards, policies, and procedures as specified by us from time to time. 

You shall comply in full with all federal, state, local and foreign laws, rules, and regulations in connection with your access to, and use of, the Site and the Software. The Site and the Software may be accessed and used only in a form and manner approved by AuctionWiser in its sole discretion, and only in accordance with the terms and conditions of this Agreement.

You acknowledge that the Site and the Software contain valuable trade secret and proprietary information of AuctionWiser, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to AuctionWiser for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

  1. LICENSE RESTRICTIONS

In connection with the license of the Site and the Software, you shall not:

You may market and promote the Site, the Software, or the API only upon written approval from AuctionWiser to engage in such marketing and/or promotion activities and only with explicit reference to AuctionWiser in such marketing and/or promotion activities. This includes, but is not limited to, your promotion of “AI text generation”, “AI generated copy”, “AI for copy”, “AI-powered copywriting”, “copy using AI”, “copy generated by Machine Learning and Natural Language Processing Models” or derivatives thereof that promote AuctionWiser’s Site, Software or API. To obtain such approval, you must provide written details and documentation to AuctionWiser as to the proposed marketing and/or promotion activities you wish to undertake. AuctionWiser reserves the right, in its sole discretion, to approve or deny such marketing and/or promotion activities. Once approved, you may market the Site, the Software, and the API only if AuctionWiser is explicitly referenced in such marketing and promotion activities and only to the extent of such AuctionWiser prior approval.
  1. FEES AND PAYMENT

Monthly or annual subscription customers will be charged the fees set forth in the Subscription Registration or as otherwise agreed in a written Purchase Order (“PO”) between you and AuctionWiser.

You agree to pay all subscription fees applicable to your use of the Site and the Software (“Subscription Fees”). Unless otherwise specified in your Subscription Registration, such fees will be billed in advance for each month or year and are non-refundable. You agree that you may not be refunded or credited for partial month’s subscription, or for periods in which your Account remains open but you do not access the Site or the Software. If you exceed any usage or fee thresholds set forth in your subscription or PO, we may charge you for such overages on your next invoice. Unless otherwise agreed, all amounts and fees due: (1) shall be payable in US Dollars; (2) are non-cancellable and non-refundable; and (3) are exclusive of all taxes, which shall be added to AuctionWiser’s invoice(s) at the appropriate rate. You agree to make all payments without set-off or counterclaim and free and clear of any withholding or deduction.

By entering a credit card number, you agree that AuctionWiser, and our Third Party service providers, may store your payment card information. You expressly authorize us to charge you, where applicable: (i) Subscription Fees, to be billed during the term of your Subscription Registration and (ii) applicable taxes connected with your Subscription Registration. If the payment card you provide expires and you do not update your payment card information or cancel your subscription, you authorize us to suspend your Account until your billing details have been updated.

If you purchase access to the API from AuctionWiser, you agree to pay all applicable fees in accordance with the terms of sale and any payment terms contained in the PO. Unless otherwise agreed in the signed PO or another agreement executed by you and us, any invoices issued for your purchase of the API will be payable within ten (10) days from the date of such invoice. If we have not received payment within fifteen (15) days after the due date of such payment, we may, without liability, suspend your access to the API and the Software until payment has been made in full. Interest shall accrue on due and unpaid amounts at a monthly rate of 1%, commencing on the due date and continuing until fully paid. Unless otherwise agreed in the signed PO or another agreement executed by you and us, Payment obligations cannot be canceled, and fees paid are non-refundable.

We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting these fee changes to the Site or by notifying you via email. Should you continue to use the Site or the Software after these changes go into effect, you will be responsible for paying the new subscription/billing rate. 

  1. AUTOMATIC SOFTWARE UPDATES

AuctionWiser may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Site and the Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Site and the Software. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Site or the Software, and you agree to promptly install any Updates AuctionWiser provides. Your continued use of the Site and the Software is your agreement (i) to these Terms with respect to the Site and the Software, and (ii) any change or updates that AuctionWiser may make to these Terms over time.

  1. OPEN SOURCE

Certain items of software included with the Site and the Software may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of the Agreement. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. To the extent there are any conflicts between the terms of this Agreement and any Open Source Software license corresponding to the open source component(s) of the software included with the Site and the Software, or additional obligations by such Open Source Software license that are not set forth in this Agreement, the terms of the Open Source Software license will control. If required by any license for particular Open Source Software, AuctionWiser makes such Open Source Software, and AuctionWiser’s modifications to that Open Source Software, available by written request to AuctionWiser at the email or mailing address listed below.

  1. ACCOUNTS
  1. ACCESS
  1. AGREED USAGE AND LIMITATIONS
  1. LIMITATIONS OF AuctionWiser SERVICES DUE TO THIRD PARTIES
  1. OWNERSHIP, INTELLECTUAL PROPERTY, AND CONFIDENTIALITY

AuctionWiser understands that you are to use the Site and the Software for various purposes. AuctionWiser hereby consents to your use of the Site and the Software as detailed during your order of the Site and the Software and as mutually agreed upon. You may not use the content of the Site or the Software in any other public or commercial way nor may you copy or incorporate any of the content of the Site and or the Software into any other work, including your own web site without the written consent of AuctionWiser. You must have a license from us before you can post or redistribute any portion of the Site or the Software. Other than with respect to User Content, AuctionWiser retains full and complete title to all content on the Site and the Software, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Site or the Software or any content therein.

You hereby acknowledge and agree to AuctionWiser’s use of (i) any and all data that you provide to AuctionWiser in connection with your use of the Site or the Software (“Provided Data”); (ii) usage statistics including but not limited to clicks and types of projects (“Usage Data”); (iii) third party information such as historic and new user data on internet based platforms, creative data, media campaign data, and performance data (collectively, “Third Party Data”); and (iv) user input data including but not limited to creative data, media campaign data, and performance data (“User Input Data” and together with Provided Data, Usage Data, and Third Party Data, the “Compiled Data”), in accordance with our Privacy Policy  and the terms contained herein. AuctionWiser may use the Compiled Data to analyze, administer, support, and improve your access to and use of the Site and the Software. AuctionWiser may also compile, anonymize and/or aggregate the Compiled Data and use such anonymized and/or aggregated Compiled Data for AuctionWiser’s business purposes. In addition to the foregoing, AuctionWiser may use the Compiled Data to develop the outputs from the Site and the Software, and to analyze end user usage of the Site and the Software. Further, AuctionWiser may use the Compiled Data to improve the performance of the Site and the Software, to provide platform outcomes and personalized results according to historic data and preferences, and to provide performance statistics.

AuctionWiser does not share your Compiled Data with any third parties except as described herein. AuctionWiser specifically uses your Compiled Data to improve the Site and the Software and to improve internal models.

  1. INDEMNITY FOR THIRD PARTY ACTIONS

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD AuctionWiser AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY THE “AuctionWiser PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE AuctionWiser PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE SITE AND THE SOFTWARE, (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS, (C) ANY USER CONTENT OR FEEDBACK YOU PROVIDE; (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY; OR (E) ANY ALLEGATION THAT THAT DATA YOU INPUT INTO THE SITE OR THE SOFTWARE INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (COLLECTIVELY “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE AuctionWiser PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE AuctionWiser PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE AuctionWiser PARTIES, OR MADE BY ANY OF THE AuctionWiser PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE AuctionWiser PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE AuctionWiser PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE AuctionWiser PARTIES, OR GROSS NEGLIGENCE OF THE AuctionWiser PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, INCLUDING WITHOUT LIMITATION, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY. AuctionWiser reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify AuctionWiser and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without AuctionWiser’s prior written consent. AuctionWiser will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

  1. WARRANTY DISCLAIMERS

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR ON THE SITE:

  1. WAIVER OF SUBROGATION

You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE AuctionWiser AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.

  1. LIMITATION OF LIABILITY

IN NO EVENT SHALL AuctionWiser OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE SITE OR THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

IN EVERY EVENT, AuctionWiser’S TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SITE AND THE SOFTWARE SHALL BE LIMITED TO FIVE ($5.00) US DOLLARS.

THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR AuctionWiser TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY AuctionWiser, AuctionWiser WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.

SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.

  1. GOVERNING LAW AND ARBITRATION 

These Terms are governed by and construed in accordance with the laws of the State of New York and the United States of America, without regards to their respective principles of conflicts of law. Any disputes relating to these Terms or the Subscription Registration will – if it cannot be resolved informally by you and us – be resolved solely and exclusively by arbitration in New York City, New York under the then current rules of the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection), and judgment upon the award entered by the arbitrator may be entered in any Court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator selected by the American Arbitration Association. Costs of arbitration, including attorney’s fees in arbitration, as determined by the arbitrator, with attorney’s fees incurred by the prevailing party in Court enforcement of the arbitration award after the arbitrator renders it, must be paid to the prevailing party by the part designated by the arbitrator or Court. Either you or AuctionWiser may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either your or AuctionWiser also may, without waiving any remedy under these Terms, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Should AuctionWiser or you either dismiss or abandon their claim or counterclaim before the hearing, the other party will be deemed the “prevailing party” under these terms. Should both parties receive judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered will be deemed the “prevailing party” under these Terms.

  1. DIGITAL MILLENNIUM COPYRIGHT ACT

If you are a copyright owner of an agent thereof and believe that any Content infringes upon your copyrights, please sent notice to our designated agent identified below.  According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:

The designated agent for notice of copyright infringement claims may be reached as follows: info@AuctionWiser.com.

The preceding information is provided exclusively for notifying us that your copyrighted material may have been infringed.  All other inquiries, such as questions related to the Site or the Software, and requests or concerns regarding improper postings and/or content, will not receive a response through this process.

  1. GENERAL

We reserve the right to make changes to these Terms.  Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the AuctionWiser websites.  Your use of the Site or the Software after such notice will be deemed acceptance of such changes.  

If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

These Terms, and any documents referred to in it, set out the entire agreement between us relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements between us. These Terms are not assignable, transferable or sub-licensable by you except with AuctionWiser’s prior written consent.  These Terms shall not be construed as a teaming, joint venture, or other such arrangement, unless the parties expressly and explicitly execute an agreement to that effect.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.  Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.