LAST REVISED: July 10, 2016
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "ACCEPTED AND AGREED TO", CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER'S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1 .DEFINITIONS The following capitalized terms shall have the following meanings whenever used in this Agreement.
1. "Customer Data" means any data, information or material in electronic form input or collected through the System by Customer, including without limitation from Customer's Users or from individuals or business entities doing business with Customer or that Customer has invited to use the System.
2. "Documentation" means Bidazzle's standard manual related to use of the System, as well as any other written documentation provided to Customer by Bidazzle to facilitate Customer's use of the System under the terms of this Agreement.
3. "Order" means an order for access to the System created either electronically through the System when Customer opens a Bidazzle account or in the form of a document signed by both Bidazzle and Customer, including by electronic signature.
5. "System" means Bidazzle's hosted online contract creation and management system. The System includes, without limitation, Bidazzle's proprietary software and other technology, including any enhancements, modifications, and derivative works to any of the foregoing.
6. "Term" is defined in Section 12.1 below.
7. "User" means any individual who uses the System on Customer's behalf or through Customer's account or passwords, whether authorized or not. Users do not include individuals or business entities that open their own Bidazzle account, even if such individual or business entity is doing business with Customer or has been invited by Customer to use the System.
2. THE SYSTEM.
1. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; (b) this Agreement; and (c) Bidazzle's policies posted on its Website at www.Bidazzle.com, as such policies may be updated from time to time.
2. System Access Options. The Order may specify a free account, for which no fee is required, or a paid subscription plan. Bidazzle may change its policies and procedures for free accounts, or terminate any free account, at any time by written notice to Customer.
3. Order Requirements. Customer agrees: (a) that it shall submit each proposed Order through the System or sign it, as applicable, through a representative having the authority to bind Customer; and (b) that Bidazzle may presume that such representative has such authority. Customer shall include in each proposed Order its accurate name, email address, or other identifying information, the free account or paid subscription plan option selected by Customer, any transaction-specific terms and conditions, and (if Customer has chosen a paid plan), the Term for which Customer has subscribed to the System and the applicable fees, if any. No proposed Order shall be considered an Order until accepted by Bidazzle.
4. Technical Support. "Support" refers to reasonable efforts to address questions and provide solutions related to the System operations. Bidazzle shall provide Support to Customer 24 hours per day, Monday through Friday during the Term, provided Customer is in compliance with this Agreement and is current on payments due and otherwise in compliance with this Agreement. Notwithstanding the foregoing, Bidazzle is not obligated to provide Support with respect to any modifications to the System that were not made by Bidazzle or any interface of the System with other software, platforms, or networks used by Customer. Customer may submit Support requests by email to support@Bidazzle.com or directly in the System via the Help feature.
5. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users' use of the System.
6. System Revisions. Bidazzle may revise System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
7. Customer's Partners. Customer recognizes and agrees that its business partners may not access the System as Users and, in order to interact with Customer via the System, shall be required to become Bidazzle customers and execute separate contracts with Bidazzle.
1. Bidazzle's System has been designed to address the key requirements of:
1. The Electronic Signatures in Global and National Commerce (E-SIGN) Act , Pub. L. No. 106-229, 114 Stat. 464 (2000) (15 U.S.C. 7001-7031);
2. The Uniform Electronic Transactions Act (UETA), as approved by the National Conference of Commissioners on Uniform State Laws in 1999 (7A Pt. 1 U.LA. 211, 211-99 (2002)), as well as the state laws modeled after UETA.
3. Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures.
2. Exceptions to applicability of electronic signature. Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. Bidazzle shall not be responsible or liable to determine whether any particular contract is subject to an exception to applicable electronic signature laws, or whether it is subject to any particular agency promulgations, or whether it can be legally formed by electronic signatures.
3. Electronic transactions and "consumers". Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more "consumers," such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. Bidazzle shall not be responsible to: (a) determine whether any particular transaction involves a "consumer;" (b) furnish or obtain any such consents or determine if any such consents have been withdrawn; (c) provide any information or disclosures in connection with any attempt to obtain any such consents; (d) provide legal review of, or update or correct any information or disclosures currently or previously given; (e) provide any such copies or access, except as expressly provided by the System for all transactions, consumer or otherwise; or (f) otherwise to comply with any such special requirements; and (g) Customer undertakes to determine whether any "consumer" is involved in any document presented by Customer or its Users for processing by the System, and, if so, to comply with all requirements imposed by law on such documents.
4. SUBSCRIPTION FEES, BILLING, & PAYMENT.
1. Subscription Fees. Fees for paid plans are determined based on the number of Users using the System during a monthly or annual subscription period ("Billing Period"). Unless otherwise stated in the Order, all subscription fees are payable in advance.
2. Payment. Customer will make payment only by credit card, Single Euro Payments Area (SEPA) direct debit, or automatic clearing house (ACH) transfer (the "Payment Method"). Bidazzle will only accept credit card as the Payment Method if Customer's monthly fees total less than $1,000 (or the foreign currency equivalent thereof). Customer authorizes Bidazzle to transmit Customer's Payment Method information to Bidazzle's third-party payment processing vendor, which may store such information in order to facilitate payments. Customer shall promptly notify Bidazzle in writing of any change in Customer's invoicing address or changes related to the Payment Method, which will be effective 5 days after Bidazzle's receipt of Customer's notification. Customer authorizes Bidazzle or its payment processing vendor to bill Customer, through Customer's authorized Payment Method, for the applicable subscription fees, along with any applicable taxes and any other charges Customer may incur in connection with its use of the System. Customer acknowledges that it is solely responsible for any and all fees charged to Customer by its credit card issuer, bank, or other financial institution including, but not limited to, membership, overdraft, insufficient funds, and over-the-credit-limit fees. All fees and charges are nonrefundable, and no credits are required if Customer uses the System for only part of a Billing Period.
3. Invoices. Bidazzle may: (a) send invoices generated through the System, via email, or such other means as it may select from time to time; and (b) invoice Customer through Customer's Payment Method at the beginning of each Billing Period. Customer may request an additional invoice or an invoice in a different format by emailing billing@Bidazzle.com. Increases in the number of Users on a paid plan or increases in paid subscription plan tiers will be effective and invoiced at the time of the increase, on a pro-rated basis if the change is made during a Billing Period. Decreases in the number of Users on a paid plan or decreases in paid subscription plan tiers will be effective upon renewal of the next Billing Period. If Customer does not notify Bidazzle in writing of a billing problem or discrepancy within 20 days of the relevant invoice date, Customer waives any right or dispute related to such problem or discrepancy.
4. Taxes. All fees are exclusive of taxes, levies, and duties, and Customer will be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), withholding, or similar taxes, but excluding United States (federal or state) income tax and any other taxes based solely on Bidazzle's income. Bidazzle may calculate taxes based on the billing information Customer provides.
5. Effect of Nonpayment. Bidazzle may suspend Customer's access to the System without advanced notice if Customer fails to pay any invoice in full when due. In addition to such other rights as Bidazzle may have, including without limitation pursuant to Section 12.2(Termination without Cause) and Section 12.3(Termination for Cause) below, Customer shall continue to pay fees during any suspension. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Bidazzle to collect any overdue amount. Bidazzle may accept any check or payment in any amount without prejudice to its right to recover the balance or to pursue any other right or remedy. Customer may not withhold amounts due to Bidazzle under this Agreement for any reason or offset them against amounts that Customer asserts are owed to Customer by Bidazzle.
5. CUSTOMER DATA & PRIVACY.
1. Use of Customer Data. Bidazzle requires all its employees to sign strict confidentiality agreements as part of their employment agreement. Unless it receives Customer's prior written consent, Bidazzle: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System, to prevent or address service or technical problems, or at Customer's request in order to provide Support; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Bidazzle's other customers, except subcontractors that are subject to a nondisclosure agreement. Notwithstanding the foregoing, Bidazzle may access, preserve and disclose Customer account information and Customer Data if required to do so by law or by proper legal or governmental authority, or if Bidazzle believes that such actions are required (i) to comply with legal process; (ii) to enforce the Agreement; (iii) to respond to claims that Customer Data violates the rights of third parties; or (iv) to protect the rights, property or personal safety of Bidazzle, its customers and the public. Bidazzle shall give Customer prompt notice of any legal or governmental demand and will reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
4. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Bidazzle offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
5. Data Accuracy. Bidazzle shall have no responsibility or liability for the accuracy of data uploaded to the System by Users, including without limitation Customer Data.
6. Treatment of Customer Data Following Termination. Within 30 days following termination of this Agreement, upon Customer's request and provided that Customer has paid all amounts due to Bidazzle, Bidazzle will provide Customer with a copy of the Customer Data in a format chosen by Bidazzle. Customer further agrees that Bidazzle will not be liable to Customer or to any third party for any deletion of Customer Data after such 30-day period.
7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 5, in order to maintain, provide and improve the System, Bidazzle may use, reproduce, analyze, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. ("Aggregate Data" refers to Customer Data with the following removed: personally identifiable information of individuals, the names and addresses of Customer and any of its Users or other parties with which it is doing business, and the identity of any such party linked to specific contract terms or other business information.)
6. CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS.
1. Acceptable Use. Customer shall not:
1. use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System;
2. use the System to harm minors in any way;
3. impersonate any person or entity, including, but not limited to, a Bidazzle employee, account administrator, or other Customer or User, or falsely state or otherwise misrepresent Customer's affiliation with a person or entity;
4. provide System passwords or other log-in information to any third party;
5. share non-public System features or content with any third party;
6. manipulate identifiers in order to disguise the origin of any of Customer's Data;
7. use the System to upload, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
8. use the System to upload, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
9. interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System, including by using any device or software;
10. modify, adapt, or hack the System, including by using any non-public Bidazzle APIs, or otherwise attempt to gain unauthorized access to the System or its related systems or networks; or
11. access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System.
2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer is on notice that it and Users increase their safety through "strong passwords," which use a combination of upper and lower case letters, numbers and symbols. Customer shall notify Bidazzle immediately of any known or suspected unauthorized use of the System, breach of security, or unauthorized use of Customer's account and shall use best efforts to stop such unauthorized use or breach.
3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
4. Users & System Access. Customer is responsible and liable for: (a) Users' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer's account, whether authorized or unauthorized.
5. Bidazzle's Remedies for Breach. If Bidazzle suspects any breach of the requirements of this Section 6, including without limitation by Users, Bidazzle may suspend Customer's access to the System without advanced notice, in addition to such other remedies as Bidazzle may have. This Agreement does not require that Bidazzle take any action against Customer or any User or other third party for violating this Section 6 or this Agreement, but Bidazzle is free to take any such action it sees fit.
7. IP & FEEDBACK.
1. IP Rights to the System. Bidazzle retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
2. Feedback. Bidazzle has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Bidazzle, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Bidazzle's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Bidazzle's products or services.)
8. CONFIDENTIAL INFORMATION.
"Confidential Information" refers to the following items that one party to this Agreement ("Discloser") discloses to the other party ("Recipient"):
(a) any document marked as "Confidential";
(b) any information Discloser orally designates as "Confidential" at the time of disclosure, provided Discloser confirms such designation in writing within 5 business days;
(c) the Documentation, whether or not marked or designated confidential;
(d) any technology incorporated into or used by the System, as well as the System's non-public features, for which Bidazzle will be Discloser; and
(e) any other nonpublic, sensitive information disclosed by Discloser, whether or not marked or designated "Confidential." Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser.
1. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to fulfill Recipient's obligations or exercise its rights pursuant to this Agreement (the "Purpose"). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of thisArticle 8; and (b) shall not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense.
2. Injunction. Recipient agrees that breach of this Article 8 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8.1above (Nondisclosure) will terminate 3 years after the date of disclosure. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
9. REPRESENTATIONS & WARRANTIES.
1. From Bidazzle. Bidazzle represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Bidazzle's representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Bidazzle. In the event of a breach of the warranty in this Section 9.1, Bidazzle, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Bidazzle's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 9.1 and for potential or actual intellectual property infringement by the System.
2. From Customer. In addition to Customer's representations and warranties concerning Customer Data in Section 5.2, Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement, (b) it has obtained all permissions, releases, rights or licenses required to engage in Customer's activities (and allow Bidazzle to perform its obligations) in connection with the use of the System, (c) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (d) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (e) it is a corporation or another entity authorized to do business pursuant to applicable law, an individual with the legal capacity to enter into a contract, or the sole proprietorship of such an individual.
3. Warranty Disclaimers. Except to the extent set forth in Section 9.1 above, CUSTOMER ACCEPTS THE SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) Bidazzle HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; AND (b) Bidazzle DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS OR WILL BE ERROR-FREE, WILL MEET SUBSCRIBER'S REQUIREMENTS, OR BE TIMELY OR SECURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO CUSTOMER'S USE OF THE SYSTEM. CUSTOMER CONSENTS TO Bidazzle'S INTERCEPTION AND STORAGE OF CUSTOMER DATA AND OF ELECTRONIC COMMUNICATIONS TO AND FROM CUSTOMER, ITS USERS AND OTHER Bidazzle CUSTOMERS DOING BUSINESS WITH CUSTOMER. CUSTOMER UNDERSTANDS THAT SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT ARE NOT OWNED, OPERATED, OR CONTROLLED BY Bidazzle. CUSTOMER ACKNOWLEDGES THAT CHANGES TO CUSTOMER DATA MAY OCCUR IN ORDER TO CONFORM AND ADAPT CUSTOMER DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES. CUSTOMER AGREES THAT Bidazzle IS NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR CUSTOMER DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER'S DECISION TO USE THE SYSTEM IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES OR MADE IN RELIANCE ON ANY ORAL OR WRITTEN STATEMENTS MADE BY Bidazzle REGARDING FUTURE FUNCTIONALITY OR FEATURES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, Bidazzle MAY USE INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION, AND THAT Bidazzle SHALL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION.
1. Indemnified Claims. Customer shall defend, indemnify, and hold harmless Bidazzle and the Bidazzle Associates (as defined below) against any "Indemnified Claim", meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer's own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including without limitation by Customer Data; and (d) claims that use of the System through Customer's account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Bidazzle's negligence. Customer's obligations set forth in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at Customer's expense and payment of judgments. Bidazzle will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "Bidazzle Associates" are Bidazzle's officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
2. Indemnity Process. Customer's indemnification obligations are conditioned on Bidazzle's (a) promptly giving written notice of the claim to Customer; (b) giving the indemnifying party sole control of the defense and settlement of the claim, except as stated in Section 10.1 above; (c) providing necessary information and reasonable assistance in connection with the claim, at Customer's request and expense; and (d) not compromising or settling such claim. Bidazzle may participate in the defense of the claim at its own expense.
11. LIMITATION OF LIABILITY.
1. Dollar Cap. Bidazzle'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED (a) FOR A FREE ACCOUNT, $100 AND (b) FOR A PAID SUBSCRIPTION, ALL AMOUNTS CUSTOMER PAID TO Bidazzle IN THE 6 MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.
2. Exclusion of Consequential Damages. IN NO EVENT WILL Bidazzle BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF Bidazzle IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 11, Bidazzle's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Bidazzle's liability limits and other rights set forth in this Article 11 apply likewise to Bidazzle's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. TERM & TERMINATION.
1. Term. This term of this Agreement (the "Term") shall begin on the Effective Date and continue for any Billing Period designated in the Order, including any renewals, or if no Billing Period is designated in the Order, until terminated by one of the parties. If a Billing Period is designated in the Order, the Term will renew automatically on the last day of each Billing Period for an additional such period.
2. Termination without Cause. Customer may terminate this Agreement as set forth below, by emailing billing@Bidazzle.com or by otherwise notifying Bidazzle as set forth in Section 12.2. Customer's termination of this Agreement pursuant to a free account will be effective upon Bidazzle's receipt of Customer's notice. Customer's termination of this Agreement pursuant to a paid subscription will be effective at the end of the Billing Period during which Bidazzle receives Customer's notice. For example, if Bidazzle receives notice of termination on the first day of a new Billing Period, termination will be effective at the end of that new Billing Period. Bidazzle may terminate a free account at any time, without advanced notice, for any reason or no reason.
3. Termination for Cause. Bidazzle may terminate this Agreement (including without limitation Customer's access to the System) without advanced notice if Customer fails to pay applicable fees when due. Either party may terminate this Agreement for any other material breach by the other party via written notice, effective in 30 days unless the other party first cures such breach.
4. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 7(IP & Feedback), 8 (Confidential Information),9.3 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. The parties agree that no Bidazzle employee or contractor will be an employee of Customer.
2. Notices. Bidazzle may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to billing@Bidazzle.com, and such notices will be deemed received 24 hours after they are sent.
3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Bidazzle's express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California.
9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
10. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Bidazzle or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
13. Marketing. Unless Customer notifies Bidazzle in writing that it does not want its name used in Bidazzle's marketing, Bidazzle may identify Customer as a Bidazzle customer in Bidazzle's marketing materials. In case of such notice: (a) Bidazzle shall not include Customer in any future printed customer lists, provided Bidazzle will not be required to modify any existing printed materials; and (b) Bidazzle will remove Customer's name from any online materials within a reasonable period, not to exceed 30 days.
14. Dispute Resolution. Any claim arising out of or related to this Agreement, including without limitation claims related to the parties' negotiations and inducements to enter into this Agreement, shall be submitted to mandatory, binding arbitration under the auspices of American Arbitration Association (the "AAA"), in San Francisco, California, with the parties sharing equally the costs of arbitration. Arbitration will proceed according to the standard commercial arbitration rules of the AAA. This Section 13.14 does not limit either party's right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after the pendency of any arbitration, and the exercise of any such remedy does not waive either party's right to arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on an arbitration award may be entered by any court with competent jurisdiction. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
- Amazon Web Services, Inc.
- P.O. Box 81226
- Seattle, WA 98108-1226
By accessing, using or downloading any materials from the Site, you agree to follow and be bound by the Website General Conditions.
The content of the www.Bidazzle.com website, including trademarks and logos, general structure, software, texts, images, videos, sounds, know-how, animations, and generally the information published on the website is the property of Bidazzle or is subject to an authorization of use. Any representation, modification, reproduction, misrepresentation, total or partial, of all or part of this website or its content, whatever the process or medium used, is strictly prohibited. Unauthorized use of Materials from this Site may violate copyright, trademark and privacy laws.
CONTENT The data available on www.Bidazzle.com is provided only for informational purposes. Although Bidazzle attempts to provide accurate information on the Site, Bidazzle assumes no responsibility for the accuracy of the information. Visitors to the Site shall be responsible for conducting their own analysis of the information provided. ALL INFORMATION ON THIS SITE IS PROVIDED "AS IS" WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. Bidazzle DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
COOKIES AND MANAGING PERSONAL INFORMATION
Visitors to the Site are informed that information ("cookies") may be temporarily saved on the hard disk of their computer in order to facilitate Site navigation. Visitors authorize these cookies. Cookies send data that is not used for identification but to record information relating to your navigation of the Site. They enable analysis to be made about visitors to the Site and about their visit, etc., in order to improve the quality of the Site. The settings from the Internet browsers are usually programmed by default to accept Cookies, but Visitors can easily adjust it by changing the settings of your browser. However, if Visitors choose to disable the Cookies on their browsers, they might not be able to benefit from all the functionalities offered by Bidazzle's website.
For more information on the setting of Cookies, please consult the following links:http://www.aboutcookies.org/
For Internet Explorer: http://windows.microsoft.com/en-us/windows7/how-to-manage-cookies-in-internet-explorer-9
For Safari: http://support.apple.com/kb/HT1677?viewlocale=en_US
For Chrome: https://support.google.com/chrome/answer/95647?hl=en
For Firefox: https://support.mozilla.org/en-US/kb/enable-and-disable-cookies-website-preferences
For Opera: http://help.opera.com/Windows/10.20/en/cookies.html