“Application” means a desktop application, browser plug-in or so-called “bookmark” made available to You for installation, download or use in connection with Goodbid Online Services, and any updates or revised or upgraded versions of any such application, plug-in or bookmark.
“Content” means all content residing in the Application, excluding the Data.
“Data” means all data, information, functionality and content that You upload to or post on the Application, or is uploaded and posted on Your behalf, including, but not limited to, poll questions, product specifications, product descriptions, reviews, photographs, images, Marks and other user- generated content. “Data” includes, without limitation, Data that You have uploaded from your device(s) and Data that You elect to post from third party websites.
“Goodbid Sites” means www.Goodbid.com and any other url(s) maintained by or on behalf of Goodbid and/or its affiliates.
“Intellectual Property” means, with respect to any software, code, data or other asset of any kind, all copyright, patent, trademark, trade secret, moral rights, termination, authorship and other proprietary rights now known or hereafter developed, or applications for any of the foregoing rights, relating to any such software, code, data or other asset, including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such software, code, data or other asset.
“Marks” means any trademarks, service marks, names, logos, or other graphics or branding elements.
2. IMPLEMENTATION. Goodbid may make available to You an Application in connection with Goodbid Online Services. If You elect to install, download or use the Application, You agree that this Agreement does not grant You any Intellectual Property in or to the Application, and any copies You might make of the Application, other than a limited, personal right to use the Application in connection with Your Goodbid Online Services activities will terminate upon the termination of your use of the Application in accordance with the terms of this Agreement. You acknowledge that Your use of the Application is voluntary and at Your own risk. You may not: (a) modify, copy, publish, license, sell or otherwise commercialize this Application or any Content or software associated with this Application; (b) rent, lease or otherwise transfer rights to this Application; or (c) use this Application in any manner that could impair any Goodbid Site in any way or interfere with any third party’s use or enjoyment of any Goodbid Site. Goodbid makes no guarantees with respect to the availability or uptime of the Application. Goodbid may conduct maintenance on or change the method of access to the Application, at any time with or without notice to You.
3. DATA RIGHTS & OBLIGATIONS.
You represent that any Data that You upload to or post on the Application shall be free from any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, and that You own or otherwise have the unconditional right to upload or post such Data. You hereby grant to Goodbid and its affiliates a non-exclusive, worldwide, perpetual, irrevocable, limited, royalty-free, sub-licensable (through multiple tiers) and transferable right and license to exercise the copyright, trademark, patent, publicity, database, and all other Intellectual Property rights in the Data, as well as the right to host, cache, route, transmit, store, copy, modify, reproduce, distribute, publish, translate, use, publicly perform, publicly display, reformat, excerpt, analyze, and create derivative works of the Data, in any media known now or in the future, including any Goodbid Site, or application or other property owned, operated or provided by Goodbid or its affiliates.
Goodbid may elect to not display Data (or any portion thereof), in its sole discretion. Additionally, Goodbid reserves the right to remove any Data from any media on which it is displayed at any time, with or without notice to You, if, in its sole opinion, such Data conflicts with or is in breach of this Agreement or the nature or quality of the Data is inconsistent with Goodbid’s mission or standards. There are no implied licenses from Goodbid under this Agreement.
4. APPLICATION USE.
While using the Application, You will not:
•violate any laws, third party rights, or Goodbid’s policies, such as these Prohibited and Restricted Items policies;
•use our sites, services, or tools if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using any of our sites, services, or tools;
•post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
•distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;
•distribute viruses or any other technologies that may harm Goodbid, or the interests or property of Goodbid users;
•copy, modify or distribute Content or Goodbid’s Marks; or
•harvest or otherwise collect information about individuals, including email addresses, without their consent.
Please report problems, offensive content, and policy violations to Goodbid using the feedback feature in the Application. Without limiting other remedies, Goodbid may limit, suspend or terminate Application access, service and/or user accounts, prohibit access to our sites and their content (including the Application and the Content), services and tools, delay or remove hosted content, and take technical and legal steps to keep users off the Application if Goodbid suspects that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies. Goodbid also reserves the right to modify or discontinue the Application and any other websites, services or tools associated with Goodbid Online Services.
Goodbid’s Verified Rights Owner (VeRO) program works to ensure that items displayed on Goodbid Sites do not infringe upon the copyright, trademark or other intellectual property rights of third parties. If You believe that Your Intellectual Property rights have been violated in connection with the Application or Goodbid Online Services, please notify our VeRO team through our Verified Rights Owner (VeRO) Program and we will investigate. Additionally, Goodbid may, in appropriate circumstances and at our discretion, suspend or terminate accounts of users who may be repeat infringers of intellectual property rights of third parties.
This Application may utilize social networking or “share functionality” or may contain links to third party sites that are not owned or controlled by Goodbid. Goodbid has no control over, and assumes no responsibility for, any share or other social media functionality provided by third parties, or the content, privacy policies, or practices of any third party website. You are subject to the policies of those third parties when and where applicable. By using this Application, You expressly relieve Goodbid from any and all liability arising from Your use of any share or other social media functionality or third party website accessed from this Application. Upon receipt of notice addressed to Goodbid as directed below, we will delete any data about You, if any, that we receive from certain third parties’ websites that provide such social media functionality and, in the event that we receive such notice from You, this Agreement will terminate automatically without further notice to You.
5. (a) INDEMNIFICATION. You will indemnify and hold Goodbid (and our affiliates and our and their officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your breach of this Agreement, or Your violation of any law or the rights of a third party in connection with the Data, Application or Goodbid Online Services.
(b) RELEASE. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
7. LIMITATION OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND GOODBID'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. GOODBID WILL HAVE NO DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, STATUTORY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE APPLICATION OR GOODBID ONLINE SERVICES, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT THAT THE ABOVE IS NOT ENFORCEABLE, GOODBID’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE APPLICATION OR GOODBID ONLINE SERVICES IS LIMITED TO $100. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CLAIMS ARISING FROM THIS AGREEMENT, THE APPLICATION AND/OR GOODBID ONLINE SERVICES.
8. TERM, SUSPENSION, TERMINATION, SURVIVAL. The term of this Agreement will begin on the date on which You accept this Agreement online. It will continue until terminated in accordance with this Agreement. If You wish to terminate this Agreement, You must uninstall and delete the Application, and any copy thereof, and cease all use of the Application and Goodbid Online Services; any other methods used by You to terminate the Agreement will be void and will not result in a termination. In addition, this Agreement will terminate automatically without notice if You fail to comply with any of its terms. The right to use the Application that is granted hereunder is dependent on Your compliance with this Agreement and terminates automatically if You fail to comply with the terms. Goodbid reserves the right to terminate or suspend this Agreement for any or no reason at any time upon notice to You and without liability to You. Notwithstanding the expiration or termination of this Agreement, the following Sections shall survive termination of this Agreement: 5, 6, 7, 10, 11 and any other sections that expressly indicate they are to survive, such as this paragraph.
9. TERMS CHANGE. Goodbid reserves the right to make changes to this Application or Terms from time to time. Any material changes will take effect immediately for new users and upon the expiration of thirty (30) days after posting within the Application for current users. If You do not agree to any change, please uninstall and discontinue using this Application. Any use of this Application after the thirty (30) day notice period constitutes Your acceptance of any change.
10. FEES. The fees we charge for using our Services are listed on our website. We may change our seller fees from time to time by posting the changes on the Goodbid site with no advance notice required for temporary promotions.
You must have a payment method on file when selling on Goodbid and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed by charging other payment methods on file with us, retaining collection agencies and legal counsel, and, for accounts over 180 days past due, instructing PayPal to deduct the amount owed from your PayPal account balance. In addition, you will be subject to late fees. Goodbid, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Goodbid reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at Goodbid, C/O __________________. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Goodbid account, you must contact the collection agency directly.
11. LEGAL DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND GOODBID HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Goodbid agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Goodbid User Agreement your use of or access to the Services, or any products or services sold or purchased through the Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Texas, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Goodbid, except as otherwise stated in the User Agreement.
B. Agreement to Arbitrate
You and Goodbid each agree that any and all disputes or claims that have arisen or may arise between you and Goodbid relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to Goodbid's Services, or any products or services sold, offered, or purchased through Goodbid's Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non- representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND GOODBID AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GOODBID AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
2. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800- 778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). The Notice to Goodbid should be sent to Goodbid, Attn: Litigation Department, Re: Notice of Dispute, __________________________. Goodbid will send any Notice to you to the physical address we have on file associated with your Goodbid account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Goodbid are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Goodbid may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Goodbid at the following address:___________________________________________________________
In the event Goodbid initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Goodbid account. Any settlement offer made by you or Goodbid shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in Dallas County, Texas or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Goodbid may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Goodbid subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Goodbid may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Goodbid user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
3. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Goodbid prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Goodbid. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.Goodbid.com at least 30 days before the effective date of the amendments and by providing notice through the Goodbid Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.
4. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Goodbid must be resolved exclusively by a state or federal court located in Dallas County, Texas. You and Goodbid agree to submit to the personal jurisdiction of the courts located within Dallas County, Texas for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.
Headings are for reference purposes only and do not limit 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. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.Goodbid.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the Goodbid Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an Goodbid representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment. The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Goodbid site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement. There are no third- party beneficiaries hereunder.
The User Agreement, the User Privacy Notice, and all polices set forth the entire understanding and agreement between you and Goodbid and supersede all prior understandings and agreements of the parties.
Any notice to Goodbid must be sent to 3738 Madeira Court, Naples, Florida 34119, Attention: General Counsel, via first class or air mail or overnight courier, and is deemed given upon receipt.
If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
You are responsible for complying with trade regulations and both foreign and domestic laws. You represent and warrant that You are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country and You are not listed on any US Government list of prohibited or restricted parties. This Application or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department’s Denied Party or Entity List; and (c) You will not export or re-export this Application to any prohibited country, person, end-user or entity specified by US Export Laws.
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