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 ANALYSIS OF ONLINE AUCTIONS,
INCLUDING BUT NOT LIMITED TO “RESERVE ESTIMATION”, “PRICE PREDICTIONS”, “AI FOR PREDICTIONS”, “AI CLASSIFICATION”,
AND “PREMIUM RESEARCH CONTENT”
(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.
- OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND TERMINATION
- Overview and Relation to Other Agreements. These Terms govern your use of the Site and the Software. Certain features of the Site or the Software may be
subject to additional guidelines, terms, or rules, which will be posted on the Site and the Software in connection with such features. All additional guidelines, terms, or rules, and the
or the Software.
You may use the Site and the Software only if you have the legal capacity to form a binding agreement with us (except subject to the provisions of
clause (1)(b)(ii) below), you accept these Terms by accessing or using the Site or the Software, and only if you are in compliance with these Terms and all applicable
local, state/provincial, national and international laws, rules, and regulations. Only individuals age 18 and older are permitted to act as owners of Accounts.
- The Site and the Software are not available to any users previously prohibited from using them by AuctionWiser.
- Customer Service. If you have any questions or concerns regarding the Site or the Software, or these Terms, please contact AuctionWiser.
- Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Site or the Software, until terminated in accordance
with these Terms, or your subscription to the Site and the Software ends, or you cancel such subscription, in accordance with your Subscription Registration. At any time, AuctionWiser may (i) suspend
or terminate your right to access or use the Site or the Software, (ii) terminate these Terms with respect to you if AuctionWiser in good faith believes that you have used the Site or the Software in
violation of these Terms, including any incorporated guidelines, terms or rules.
- Effect of Termination. Upon termination of these Terms, your
Account and your right to use the Site and the Software will automatically terminate. Upon termination of these Terms, all unpaid amounts due to AuctionWiser shall immediately become due and payable.
- Force Majeure. We shall have no liability to you under these Terms or the Subscription Registration if we are prevented from or delayed in providing the Site or the Software, or
performing our obligations under these Terms or carrying on our business, by acts, events, omissions, or accidents beyond our reasonable control, including, strikes, lock-outs, or other industrial disputes,
failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule regulation or direction,
accident, breakdown of equipment, plant or machinery, viruses, fire, flood, storm or default of our vendors or sub-contractors; provided that we provide you notice of such event via the Site.
- 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.
- LICENSE RESTRICTIONS
In connection with the license of the Site and the Software, you shall not:
- make the Site or the Software available to or use the Site or the Software for the benefit of anyone other than yourself, except expressly
permitted in this Agreement;
- sell, distribute, sublicense, use, modify, translate, reproduce, create derivative works from, dispose of, rent, lease,
or authorize or permit access or use of any portion of the Site or the Software except as expressly permitted in this Agreement;
reverse engineer, decompile, or disassemble the Site or the Software, except and only to the extent that such activity is expressly permitted by applicable law;
- interfere with or disrupt the integrity or performance of the Site or the Software;
- copy the Site or the Software or any part, feature, or function thereof;
- alter the Site or the Software or any part, feature, or function thereof;
- export or use the Software in violation of U.S. law, including Department of Commerce export administration regulations;
- remove any copyright and other proprietary notices contained in the Site or the Software;
- use the Site or the Software in a manner which infringes or violates any of the intellectual property, proprietary, or other rights of any third party; or
- access and use the Site or the Software in any manner that is inconsistent with terms of this Agreement.
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.
- 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.
- 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.
- 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.
- When accessing the Site and the Software, you will be directed to establish a User Account (an “Account”) Establishing an Account requires that you provide to AuctionWiser your designated email address and that you select and enter a password. AuctionWiser will then request your permission to send you notifications. You may withhold your consent to receive notifications, but doing so may impact your ability to fully utilize the Site and the Software. In addition to the information collected in the registration process described above, once you have registered, we may ask you for additional information to create your AuctionWiser user profile such as your telephone number, address, and in some cases, credit card information. Answering these questions allows us to establish and maintain your Account, and helps us to set up and maintain a customized experience. Your email address will be stored and used as an identifier for you and for communications to you from AuctionWiser.
- You represent and warrant that: (i) all required information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Site and the Software will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to maintain your password or API token securely to prevent others from gaining access without your permission. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
- The individual who creates an Account is the “owner” of that Account. Individuals who are authorized to access or otherwise provided access by the owner to the Site and the Software are “Authorized Users.” Authorized Users may have the ability to use the Site and the Software. Authorized Users are responsible for their own actions in connection with the Site and the Software, but the owner of the applicable Account also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Site and Software and the owner’s Account. If you are an owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use the Site and the Software set out above. You are responsible for the actions and omissions of Authorized Users. As a result, you should authorize only those individuals that you trust to access your Account and the Site and the Software.
- Certain materials may be displayed or performed on the Site or the Software (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Site and the Software, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. AuctionWiser reserves the right to remove any Content from the Site and the Software at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
- Security. AuctionWiser cares about the integrity and security of your personal information. However, AuctionWiser cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Modification. AuctionWiser reserves the right, at any time, to modify, suspend, or discontinue the Site or the Software, or any part thereof with or without notice. You agree that AuctionWiser will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or the Software or any part thereof.
- Access Outside Certain Countries. You understand and accept that the AuctionWiser websites are not designed for use in countries that AuctionWiser does not support (“non-Target Country”) and some or all of the features of the AuctionWiser websites may not work or be appropriate for use in such a country. To the extent permissible by law, AuctionWiser accepts no responsibility or liability for any damage or loss caused by your accessing or use of AuctionWiser’s websites or the Site or the Software in a non-Target Country. You will be bound by these Terms wherever you use the Site or the Software.
- AGREED USAGE AND LIMITATIONS
- Reliability. While we aim for the Site and the Software to be highly reliable and available, they are not intended to be reliable or available 100% of the time. You acknowledge that the Site and the Software, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Site and the Software relies and is dependent on, among other things, the transmission of data through a Bluetooth connection, your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional Cellular Backup service, for which neither AuctionWiser nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively “Service Interruptions”). You understand that Service Interruptions may result in the Site and the Software being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications in any given time or at all. You acknowledge these limitations and agree that AuctionWiser is not responsible for any damages allegedly caused by the failure or delay of the Site or the Software. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Site and the Software.
- Service Interruptions; no refund or rebate. The Site and the Software may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. AuctionWiser does not offer any specific uptime guarantee for the Site or the Software.
- System Requirements. The Site and the Software may not be accessible without: (i) an Account and (ii) other system elements that may be specified by AuctionWiser. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Site and the Software may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Site and the Software.
- Representations. You warrant, represent and agree that you will not contribute any Content or otherwise use the Site or the Software in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of AuctionWiser; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log in to the Site or the Software as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Site or the Software, or any processes that otherwise interfere with the proper working of the Site and the Software (including by placing an unreasonable load on the infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Site and the Software; or (xii) denigrates or disrupts any network capacity or functionality.
- LIMITATIONS OF AuctionWiser SERVICES DUE TO THIRD PARTIES
- General. The Site and the Software may rely on or interoperate with third party products and services. These third-party products and services are beyond AuctionWiser’s control, but their operation may impact or be impacted by the use and reliability of the Site and the Software. You acknowledge and agree that: (i) the use and availability of the Site and the Software is dependent on third party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Site and the Software operate, and (iii) AuctionWiser is not responsible for damages and losses due to the operation of these third-party products and services.
- Third Party Service Providers Used by AuctionWiser. You acknowledge that AuctionWiser uses third party service providers to enable some aspects of the Site and the Software – such as, for example, data storage, Cellular Backup, and synchronization.
- Equipment, ISP, and carrier. You are responsible for obtaining and maintaining any equipment and ancillary services need to connect to or access the Site and the Software. You are responsible for ensuring that such equipment and ancillary services are compatible with the Site and the Software.
- Release Regarding Third Parties. AuctionWiser is not responsible for third parties or their products and services, including, without limitation, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. AuctionWiser hereby disclaims and you hereby discharge, waive and release AuctionWiser and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “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.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- As described further during the commencement of your use of the Site and the Software, you hereby authorize us to access your identified third party accounts and to utilize such accounts as permitted by you and on your behalf.
- OWNERSHIP, INTELLECTUAL PROPERTY, AND CONFIDENTIALITY
- AuctionWiser Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the AuctionWiser Intellectual Property, the Site and the Software, and any data, information or derivative works developed in connection with the Site and the Software are owned by AuctionWiser or our affiliates or licensors. Your possession, access, and use of the Site and the Software, or any data, information, or derivative works, do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. AuctionWiser and its affiliates and licensors and suppliers reserve all rights not granted in these Terms.
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.
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.
- Feedback. You may choose to, or AuctionWiser may invite you to, submit comments, suggestions, or ideas about the Site or the Software, including how to improve the Site or the Software (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place AuctionWiser under any fiduciary or other obligation. AuctionWiser may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that AuctionWiser does not waive any rights to use similar or related ideas previously known to AuctionWiser, developed by its employees, or obtained from other sources.
- User Content. The Site and the Software may allow you to submit, communicate, upload, or otherwise make available ideas, suggestions, messages, documents, proposals, photographs, audio, video, and other content (“User Content”), which may be used by AuctionWiser. You are solely responsible for all User Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with the Site or the Software, or that you contribute in any manner to the Site and the Software, and once shared, it cannot always be withdrawn. You assume all risks associated with your User Content, including anyone’s reliance on its accuracy and your right to publish it. You represent that you own, or have the necessary permissions to use and authorize the user of your User Content as described herein. You may not imply that your User Content is in any way sponsored or endorsed by AuctionWiser. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, modify, transfer, distribute, create derivative works from, reproduce, perform, or otherwise use your User Content (including any and all patent, trademark, trade secret, copyright or other related intellectual property rights) in connection with providing the Site and the Software, for our business purposes, and as directed by you.
- Confidential Information. You and AuctionWiser may both be given access to Confidential Information of the other in order to perform specific obligations under these Terms. You and AuctionWiser shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than to perform obligations pursuant to these Terms. “Confidential Information” as used herein shall mean all documents, materials, information and ideas of or about (i) AuctionWiser or any of its past, current or prospective clients or suppliers or (ii) you, in each case that are not generally known to the public, including documents, materials, information and ideas relating to business plans, strategies, programs, operations, methodologies, policies, practices, procedures, products, services, equipment, systems, and facilities, whether in written, oral, electronic or any other form or media, which is designated as “Confidential,” “Proprietary” or a similar designation, or which the other party should reasonably know is confidential.
- 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.
- WARRANTY DISCLAIMERS
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR ON THE SITE:
- THE SITE AND THE SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND AuctionWiser AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
- AuctionWiser AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE AND THE SOFTWARE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AuctionWiser OR THOUGH THE SITE OR THE SOFTWARE SHALL CREATE ANY WARRANTY.
- AuctionWiser MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SITE OR THE SOFTWARE, AND AuctionWiser WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SITE OR THE SOFTWARE.
- 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.
- 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.
- 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.
- 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:
- A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
- A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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.
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.