Welcome to the AuctionInc. Web site (the "Site"), a division of Paid, Inc. This user agreement specifies the terms and conditions by which AuctionInc agrees to provide you with service and access to the Site. If you want to access the Site and use it to manage your subscribed products, such as your ecommerce store, order processing or other external web sites , create and store advertisements or use the other services we provide (collectively, "Services") you must accept this user agreement ("Agreement") in its entirety, including all of its terms and conditions.
We may amend this Agreement at any time by posting the amended terms and conditions on the Site. Unless otherwise indicated, all amended terms shall automatically be effective fourteen (10) business days after they are initially posted on the Site, and your continued use of our Services indicates your acceptance of the amended terms. You are responsible for reviewing and becoming familiar with any changes. This agreement was last revised on September 9, 2006.
AuctionInc., in its sole discretion, may add, delete, or modify some or all of the features of the Site or Services at any time.
1. Eligibility; Registration.
1.1 Use of the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Services are not available to minors. Further, the Services are not available to parties whose use of the Services has been suspended or terminated.
1.2 To use the Services, you must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. You shall provide current, complete and accurate registration information (including email address and credit card information), and then update the information as required to keep the registration information current, complete and accurate. We reserve the right to cancel your account if you do not maintain accurate and valid registration information including name, address, telephone, url of website on which you may be using any of our products, and credit card information.
2. Passwords and Security.
You shall at all times maintain the confidentiality of your user names and passwords. If you are a corporation, partnership or other legal entity, you may allow employees to use user names and passwords, provided that you are responsible for all activity and all charges by such employees. Permitting use of the Services by a third party is prohibited and is a violation of this Agreement. If there is a breach of security through your account, you must immediately change your password and also notify us at email@example.com. You will be liable for any unauthorized use of the Services until you notify us of the security breach. If your account type requires that third-party usernames and/or passwords be maintained in our system, it is your responsibility to keep them current; if they are not we reserve the right to cancel your account at any time.
3. Fees and Payment Terms.
You agree to pay our current fees associated with using our Services and all applicable taxes. All fees are in U.S. Dollars unless stated otherwise. The fees are set forth in the Fee Schedule and Payment Terms, which are incorporated by reference. Changes to fees and payment terms are effective immediately unless otherwise indicated, and it is your responsibility to check for any changes. Subscription products are automatically renewed at the expiration of the subscription period and your registered credit card charged unless we receive a WRITTEN request to firstname.lastname@example.org for cancellation of renewal BEFORE the beginning of a new subscription period. Cancellations by telephone or Live Help are NOT accepted. Your cancellation will set your account to expire at the end of your current subscription period. Cancellations cannot be processed until all pending invoices have been paid.Your renewal date is indicated in your account in "Product Subscriptions" and on your most recent invoice in "Billing History." Once the new subscription period begins, you are responsible for full payment for that subscription cycle; we do not prorate subscription fees for cancellations made after your new subscription period begins. REFUNDS ARE NOT PROVIDED AFTER YOUR ACCOUNT HAS BEEN BILLED. You are required to have a valid credit card registered in your account at all times during your subscription. Accounts with declined,expired or invalid credit cards are subject to a $10.00 service charge and account suspension 10 days after the date of the invoice. Suspended accounts are subject to a $25.00 fee for re-activation and we reserve the right to require advance payment for one or more subscription periods . We reserve the right to change, upon notice, product subscription pricing and/or subscription period length at the end of your subscription period. A valid credit card must be on file for your account at all times. You are responsible for updating this credit card as necessary, including the expiration date.
4. AuctionInc Shipping API.
Our retail version of our API licenses you to make "SS" calls into our API service at a fixed rate as defned in our Payment Terms for up to 10,000 calls during your monthly subscription term. Should you exceed this figure, AuctionInc will charge your account one cent for each additional call unless you have a prior negotiated pricing plan for overages.
5. User Conduct.
5.1 You agree to comply with all applicable laws, statutes, ordinances and regulations related to use of the Services. You may not use our Services engage in fraud or other illegal activity, or to infringe the intellectual property rights of others.
5.2 You agree to comply with the terms and conditions of all agreements you have with third parties, as such terms and conditions relate to use of the Services including, without limitation, terms and conditions related to types of items that may be sold or restrictions on concurrent sales.
5.3 You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction conducted on the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or limits our ability to provide the Services. You agree that you will not collect, copy, reproduce, alter, modify, create derivative works, or publicly display any content or information (except for Your Materials) from the Site without the prior expressed written permission of AuctionInc. or the appropriate third party. You agree that you will not use any robot, spider, or other automatic device or routine to access or interface with the Site.
6. Your Materials.
6.1 "Your Materials" is defined as any information, data, text, graphics, photographs, images or other materials you provide (directly or indirectly) to us or other users of the Services. For example, Your Materials include information you submit that we obtain via the Services (such as email addresses, user ids and passwords). You are solely responsible for Your Materials, and we act as a passive means for your online storage, distribution and publication of your Materials.
6.2 Your Materials (or any items included therein): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, deceptive practices, or securities transactions); (e) shall not be defamatory, libelous, unlawfully threatening or unlawfully harassing; (f) shall not be obscene, contain child pornography; and (g) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; (h) shall not violate the terms and conditions of any agreements you have with third parties, including providers of web sites, as such terms and conditions relate to your use of the Services; (i) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
6.3 You shall only use the space allocated to you in the "Image Vault" for storing images used in advertisements placed through the Services.
6.4 AuctionInc. reserves the right to access, monitor, remove, or disable access to any of your Materials at any time in its sole discretion.
6.5 Upon cancellation of your subscription(s), you are responsible for removing any Materials from your website which utilize our services.
7. AuctionInc. and Third-Party Intellectual Property.
7.1 Other than your Materials, all content included or available on the Site, such as advertisements, text, graphics, logos, button icons, images, audio clips and software, is the property of AuctionInc. and/or third parties and is protected by copyrights, trademarks or other intellectual and proprietary rights. The compilation (meaning the collection, arrangement and assembly) of all content on the Site is the exclusive property of AuctionInc. and/or its licensors, suppliers and distributors and is protected by copyrights or other intellectual and proprietary rights. All software used on the Site is the property of AuctionInc. and/or its software suppliers or distributors and is protected by copyrights, patents or other intellectual and proprietary rights.
7.2 Subject to the terms and conditions of this Agreement, AuctionInc. grants a limited license to you to make personal use of the Site and the Services only for their intended purposes. This license expressly excludes any resale of the Site and the Services, making any derivative of the Site or the Services, the collection and use of other users' email addresses or other materials (for example, advertisements), or any data extraction or data mining whatsoever, except with the express consent of the owner of such materials.
7.3 AuctionInc retains all right, title, and interest in and to its trademarks, service marks and trade names worldwide (collectively, the "Marks"). You shall only use AuctioInc.'s Marks with the express permission of AuctionInc. and then only in the manner authorized. Under no circumstances may you alter, modify, or change AuctionInc.'s Marks.
8. Suspension and Termination.
Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access to the Site and Services if you breach any of the terms of this Agreement or if you take any actions that, in our sole judgment, may cause legal liability for or claims against you, our users, or us. In the event AuctionInc. suspends or terminates your access to the Site or Services, you acknowledge that you may be denied any further access to Your Materials.
10. Warranty Disclaimer.
THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AUCTIOINC. AND OUR SUPPLIERS OR DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. AUCTIONC. AND OUR SUPPLIERS OR DISTRIBUTORS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WITHOUT LIMITATION:
(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
(B) THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF AUCTIONINC. OR OUR SUPPLIERS OR DISTRIBUTORS.
Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not fully apply to you. You may also have other legal rights which vary from state to state.
11. General Release.
11.1 BECAUSE AUCTIONINC. AND OUR SUPPLIERS OR DISTRIBUTORS ARE NOT INVOLVED IN DEALINGS BETWEEN OUR USERS OR BETWEEN OUR USERS AND ARCADE USERS, IF A DISPUTE ARISES BETWEEN YOU AND ANOTHER PARTY, YOU RELEASE AUCTIONINC (AND ITS AGENTS AND EMPLOYEES, SUPPLIERS AND DISTRIBUTORS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. FURTHER, YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 (OR ANY OTHER SIMILAR STATUTE) WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR A THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
11.2 YOU ACKNOWLEDGE AND AGREE THAT AUCTIONINC IS NOT RESPONSIBLE FOR THE AVAILABILITY OF WEBSITES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH ARCADES. YOU AGREE THAT AUCTIONINC. SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS.
11.3 YOU ACKNOWLEDGE AND AGREE THAT AUCTIOINC. DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR INFORMATION PROVIDED BY OTHER USERS WHICH IS MADE AVAILABLE ON THE SITE. YOU MAY FIND OTHER USER'S INFORMATION TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU AGREE THAT AUCTIONINC. SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH INFORMATION.
11.4 YOU ACKNOWLEDGE THAT AUCTIONINC DOES NOT CONTROL OUR THIRD PARTY PROVIDERS INCLUDING CARRIER RATES PROVISION AND CANNOT BE HELD RESPONSIBLE FOR ERRORS IN SUCH PROVISION.
12. Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL AUCTIONINC. OR OUR SUPPLIERS AND/OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, CONTENT, FILES, PROFIT OR GOODWILL, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. THE AGGREGATE LIABILITY OF AUCTIONINC. AND OUR SUPPLIERS OR DISTRIBUTORS UNDER THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000). Some states do not allow the limitation of liability, so the foregoing limitation may not apply to you.
You hereby agree to, at your own expense, indemnity, defend and hold AuctionInc. and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to the Site; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against AuctionInc. arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; or (e) your use, or AuctionInc.'s provision, of the Services or use of your account by any third party. AuctioInc. will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on AuctionInc.’s behalf without the prior written consent of AuctionInc.
AuctionInc. shall provide notice to you via email to the email address you provide in your registration information. Such notice shall be deemed given 24 hours after it is sent, or earlier if actually received by you earlier. Alternatively, AuctionInc. may choose to provide notice to you via certified or registered mail to the mailing address you provide in your registration information. In such case, notice shall be deemed given 3 days after the date of mailing. You shall provide notice to AuctionInc. via email to email@example.com, or a copy sent via certified or registered mail to AuctionInc., 4 Brussels Street, Worcester, MA 01610, Attn: Customer Service.
Notwithstanding the notice provision above, you may terminate this Agreement at any time by requesting termination in writing to firstname.lastname@example.org. During this process, you may be asked to contact AuctionInc. via telephone during normal business hours to complete the termination and to ensure that the termination process is completed quickly and effectively. If you were registered for any paid services, your last charge from AuctionInc. will be for the month, quarter or year, depending on the product, in which you have canceled the service. AuctionInc., in its sole discretion, may terminate this Agreement or suspend or terminate your access to the Site or the Services immediately without notice for any reason including, without limitation, for your infringement of the intellectual property rights of others. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity and the general provisions.
This Agreement is not assignable, transferable or sublicensable by you without AuctionInc.'s prior written consent, and any such conveyance shall be null and void. AuctionInc. may assign this Agreement in whole or in part. This Agreement shall be governed by and construed in accordance with the laws of the state of Massachusettes without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the Massachusettes State and U.S. federal courts having within their jurisdiction the location of AuctionInc.'s principal place of business. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree and acknowledge that you are not entering into this agreement in reliance on any statements or representations other than those set forth herein. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement shall control.