BidNTime provides software programs (”Software“) that enable manufacturers, dealers and liquidators, retailers and other commercial parties (“Merchants”) to create private-labeled, auction websites through which they can sell their products and services online by various methods. BidNTime may also provide related services, including hosting of the online auction house, site design, email services, marketing services, and other related services as may be offered from time to time (collectively, “Services“).
This Agreement is effective upon Your acceptance in registration. By accepting this Agreement, and subject to the terms and conditions of this Agreement, including all those terms and conditions that are set forth on the BidNTime website located at www.bidntimeauctions.com (”BidNTime Site“) that are incorporated herein by reference and may be accessed through or referenced by this Agreement, BidNTime will provide You with a limited license to use the Software and receive the Services.
By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Except as stated below, all amended terms shall automatically be effective seven (7) days after they are initially posted on the BidNTime Site.
You authorize BidNTime to process any and all of Your BidNTime account transactions initiated through the use of the password and/or passphrase that You establish through registration on the BidNTime Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.
Notwithstanding anything contained in the foregoing, this Agreement will not bind BidNTime unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
1. ELIGIBILITY CRITERIA.
The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. BidNTime uses many techniques to verify the accuracy of the information You provide when You register on the BidNTime Site. If for any reason, BidNTime, in its sole discretion, believes such information to be incomplete or incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
2. BIDNTIME SOFTWARE AND TRADEMARK OWNERSHIP AND LICENSES.
2.1. SOFTWARE OWNERSHIP. Software provided by BidNTime, and all worldwide intellectual property rights therein, are the exclusive property of BidNTime. All rights in and to the Software not expressly granted to You in this Agreement are reserved by BidNTime.
2.2. SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, BidNTime grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for BidNTime (”BidNTime Servers“) through the BidNTime Site or embedded on Your own website solely for the purpose of building and maintaining an interactive auction house hosted by the BidNTime Servers on which You offer Your or a third party’s products or services to your customers (“Your Auction House”).
2.3. SOFTWARE LICENSE RESTRICTIONS. You acknowledge that the Software and its structure, organization, and source code constitute copyrighted material and valuable trade secrets of BidNTime. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software, or the right to use the Software, to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (d) transfer your interest in and to Your Auction House to any third party.
2.4. BIDNTIME TRADEMARK OWNERSHIP, LICENSE AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for certain features of the Software, BidNTime grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to you by BidNTime under this Agreement (“BidNTime Marks”), solely for use in the display on those locations on Your Auction House’s web pages as designated by BidNTime in its sole discretion, and solely in accordance with BidNTime’s written approval. BidNTime grants no rights in the BidNTime Marks other than those expressly granted in this Section 2.4. You acknowledge BidNTime’s exclusive ownership of the BidNTime Marks. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the BidNTime Marks or in such a way as to create combination marks with the BidNTime Marks. At BidNTime’s request (in its sole discretion), You will immediately discontinue any use and display of the BidNTime Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the BidNTime Marks, no licenses are granted by BidNTime to any other trademarks, service marks, or trade names owned by BidNTime, its parent, or affiliates.
2.5. ADDITIONAL FEATURES. Certain additional features that BidNTime may make available to You may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions (”Additional Software“). Similarly, BidNTime may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (”Additional Services“). You agree that You will not use such Additional Software or Additional Services unless You have agreed to the applicable terms and conditions, including but not limited to Your payment of additional fees as required.
3.1. SERVICES. Upon activation of Your account and subject to the payment of applicable fees, BidNTime will provide certain hosting, support and other miscellaneous Services for the Software licensed by You under this Agreement and Your Auction House during the term of this Agreement as published on the BidNTime Site. Your Auction House shall be hosted on a BidNTime Server on which several merchants may share the resources and network capacity of that BidNTime Server.
3.2. AUCTION HOUSE DESIGN AND CUSTOMIZATION. At Your request, and subject to BidNTime’s acceptance of your request and Your payment of applicable fees, BidNTime will provide design and customization Services for Your Auction House as provided in this Section 3.2 and in accordance with BidNTime’s then current customization terms and conditions. You shall provide all text, photographs, graphics, logo data, software, design, information and all other content for Your Auction House to BidNTime within a time period designated by BidNTime. BidNTime shall transfer all Your content into electronic form and a user-accessible format. You shall be solely responsible for obtaining and determining your rights to use such media in connection with Your Auction House.
3.3. CHANGES IN SERVICES. BidNTime reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from BidNTime in regards to the Software, Services, Your account, policy changes and system updates.
4. YOUR AUCTION HOUSE & CONTENT CONTROL
4.1. CONTROL OF YOUR AUCTION HOUSE. You will be solely responsible for the operation and maintenance of Your Auction House, including the operation of Your Auction House, accepting, processing and filing customer orders generated through Your Auction House, obtaining payment for goods, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Auction House. You agree that BidNTime has no obligation to back-up any data related to Your Auction House’s operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
4.3. CONTROL OF YOUR AUCTION HOUSE’S CONTENT. Except as noted in Section 4.2, You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Auction House, regardless of whether BidNTime provides any design or customization Services to You under this Agreement, including all descriptions of the products and services You offer to customers of Your Auction House and user-generated content on and related to Your Auction House. As a conduit, BidNTime will give You complete discretion over Your content provided it is compatible and interoperable with the Software and Services provided by BidNTime under this Agreement. You retain all rights, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by BidNTime. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in Section 5.1 of this Agreement, BidNTime is entitled to suspend or terminate Your Auction House and/or any access to information or data related to Your account and the Software in accordance with Section 12 of this Agreement.
4.4. PASSIVE CONDUIT. You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, BidNTime and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Auction House. BidNTime has no obligation to You or any third party, and undertakes no responsibility, to review Your Auction House, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Auction House to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if BidNTime believes in its sole discretion (as applicable) that Your Auction House or any products, services, content or other materials in the Auction House or on BidNTime Servers may create liability for BidNTime, You agree that BidNTime may take any actions with respect to the content or materials or Your Auction House that BidNTime believes are prudent or necessary to minimize or eliminate BidNTime’s potential liability. BidNTime shall, as applicable, be the sole judge of what content or materials may create liability for BidNTime.
4.6. CONTENT LICENSE. During the period that BidNTime provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to BidNTime and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content (including any copyrightable content or trademarks) solely for the purposes provided in this Agreement.
4.7 OTHER BIDNTIME CUSTOMERS’ AUCTION HOUSES. You expressly acknowledge and agree that BidNTime has no ability to control or prevent, and no liability to you as a result of, customers of Your Auction House ultimately making purchases of similar goods or services available on the auction houses of other BidNTime customers.
5.1. COVENANTS BY YOU. You covenant that any products, services, or content published and distributed on Your Auction House and Your related activities shall not:
a. be false, inaccurate or misleading; b. be fraudulent or involve the sale of counterfeit or stolen items; c. infringe or misappropriate any party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; d. violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising); e. be defamatory, trade libelous, unlawfully threatening or harassing, or advocate, promote or provide assistance involving violence, significant risk of death or injury, or other unlawful activities; f. be obscene, contain child pornography, or contain any other illicit material; g. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; h. involve the transmission of any unsolicited commercial or bulk email (known as “spamming”), involve the use of Your account or Your Auction House as a return address for unsolicited commercial mail originating elsewhere or involve any activities related to so-called pyramid or ponzi schemes; i. involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express consent of that person or entity; j. be harmful or potentially harmful to the BidNTime Server structure as determined in BidNTime’s sole discretion, including without limitation overloading the BidNTime technical infrastructure; k. involve subleasing Your account or offering “free space” on or other access to Your account or Your Auction House to third parties; l. create liability for BidNTime and its subcontractors or expose them to undue risk or otherwise engage in activities that BidNTime, in its sole discretion, determines to be harmful to BidNTime’s affiliates, operations, reputation, or goodwill ; or m. link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation.
5.2. BREACH OF COVENANT. Your failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 12 of this Agreement.
6. FEES; TAXES; & AUDIT RIGHTS
6.1. FEES. You shall pay the fees set forth for the Software license and Services purchased by You in accordance with the Fee Schedule in any applicable SLA between You and BidNTime. BidNTime may change such fees from time to time, and BidNTime’s fee changes are effective after BidNTime provides You with at least fourteen (14) days’ notice of the changes by posting the changes on the BidNTime Site. Your continued use of the Software and/or Services after any price increase becomes effective constitutes your agreement to pay the increased amount. Any fees or transaction fees charged will be the fee in effect at the time the transaction takes place, and any price increases will only apply to transactions taking place after such fee changes.
Unless otherwise stated, all fees are quoted in U.S. Dollars. You acknowledge and agree that You are bound by the terms and conditions of the SLA, including without limitation, those provisions relating to pricing, fees, term, commitment, and exclusivity.
6.2. PAYMENT TERMS. BidNTime will invoice You and You agree to pay for (i) all fees, including fees for the license of Software and Services to be rendered to You by or on behalf of BidNTime, within ten (10) days upon Your receipt of BidNTime’s invoice, and (ii) transaction fees and all other fees designated in the Fee Schedule in any applicable SLA to be paid within (10) days upon Your receipt of BidNTime’s invoice based on the value of goods and services sold through Your Auction House during the previous calendar month, in accordance with the invoicing and payment requirements set forth in the SLA. BidNTime will debit all fees payable by You to BidNTime directly by check, wire transfer, PayPal, or other means expressly permitted by BidNTime. Without limiting BidNTime’s other remedies, any amount that is not received from You or Your designated account within thirty (30) days after they become due will accrue a late fee at a rate of interest of one and one half percent (1½%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
6.3. TAXES. All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on BidNTime’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.
7. DISCLAIMER OF WARRANTIES. We cannot and do not guarantee or warrant that files available for downloading from the Internet or the BidNTime Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE BIDNTIME SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE BIDNTIME SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SOFTWARE AND THE BIDNTIME SITE IS AT YOUR OWN RISK. THE SOFTWARE AND THE BIDNTIME SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BIDNTIME NOR ANY PERSON ASSOCIATED WITH BIDNTIME MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SOFTWARE OR THE BIDNTIME SITE. WITHOUT LIMITING THE FOREGOING, NEITHER BIDNTIME NOR ANYONE ASSOCIATED WITH BIDNTIME REPRESENTS OR WARRANTS THAT THE SOFTWARE OR THE BIDNTIME SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SOFTWARE OR THE BIDNTIME SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BIDNTIME EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT BY POSTING ANY ITEM USING THE SOFTWARE OR THE BIDNTIME SITE, THE POSTED ITEM WILL BE SOLD. BIDNTIME EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY OF YOUR CUSTOMERS.
BIDNTIME HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL BIDNTIME, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SOFTWARE OR THE BIDNTIME SITE, ANY CONTENT ON THE BIDNTIME SITE, OR ANY SERVICES OR ITEMS OBTAINED THROUGH BIDNTIME OR THE BIDNTIME SITE. THIS DISCLAIMER INCLUDES ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO CASE SHALL BIDNTIME’S, ITS AFFILIATES’ AND THEIR LIECENSORS’, SERVICE PROVIDERS’, EMPLOYEES’, AGENTS’, OFFICERS’ OR DIRECTORS’ CUMULATIVE LIABILITY TO YOU OR TO ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED AMOUNTS PAID AS FEES BY YOU TO BIDINTIME AS PROVIDED UNDER THIS AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to indemnify and hold BidNTime, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (a) any breach of the covenants in Section 5.1 of this Agreement, (b) any content provided by You or generated by users of Your Auction House, (c) any claims arising from the sale or license of goods or services in Your Auction House, (d) Your Auction House’s failure to meet its legal obligations, and (e) any breach of this Agreement or the documents it incorporates by reference. BidNTime’s, its suppliers’ and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by BidNTime.
10.2. BidNTime shall collect, store and process Customer Data and Your Data on computers that are protected by commercially reasonable security devices. If You object to Customer Data or Your Data being collected, stored or processed in this way, your choice is not to use the Software or Services.
Without limiting other remedies, BidNTime may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Auction House, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) BidNTime is unable to verify or authenticate any information You provide to BidNTime; or (e) BidNTime believes that Your actions may cause financial loss or legal liability for You, Your Auction House customers, or BidNTime.
12. SUSPENSION AND TERMINATION
12.1. SUSPENSION. At the discretion of BidNTime and for any reason set forth in Section 12 of this Agreement, BidNTime may suspend Your account by deactivating any access by You or by Your customers to any information contained on the BidNTime Servers related to Your account while maintaining the information and data related to Your account upon the BidNTime Servers. Suspension shall specifically include the disabling of Your Auction House and/or any access to information or data related to Your account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.
12.2. TERMINATION. This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated by BidNTime (a) immediately as provided in this Agreement, (b) after a period of suspension as set forth in Section 12.1 of this Agreement, or (c) upon thirty (30) days written notice for any reason. You may terminate this Agreement if BidNTime commits a material breach of this Agreement, You provide written notice to BidNTime specifically identifying such material breach, and such breach is not cured within a thirty (30) day period following Your delivery of such notice.
12.3. RIGHTS UPON TERMINATION. In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as otherwise set forth in the SLA between You and BidNTime and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of BidNTime to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys’ fees or expert witnesses’ cost or other costs of any kind under this Agreement.
13. LIMITATION ON TIME TO FILE CLAIMS.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE, THE SERVICES, OR THE BIDNTIME SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
14.1. GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the State of North Carolina without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction.
14.2. LEGAL COMPLIANCE. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Auction House.
14.3. NO AGENCY. You and BidNTime are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
14.4. FORCE MAJEURE. Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
14.5. DISPUTES. In the event a dispute arises between You and BidNTime, BidNTime goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and BidNTime agree that any claim or controversy at law or equity that arises out of this Agreement, the Software, or Services (”Claims“) shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, BidNTime strongly encourages You to first contact BidNTime directly as provided in Section 14.6 to seek a resolution and BidNTime will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
a. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, You or BidNTime may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association (”AAA“) or the Judicial Arbitration and Mediation Service (”JAMS“) in accordance with their applicable rules, or any other established Alternative Dispute Resolution provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
b. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Raleigh, North Carolina or where the defendant is located (in BidNTime’s case Raleigh, North Carolina, and in Your case Your home address or principal place of business). You and BidNTime agree to submit to the personal jurisdiction of the courts located within the County of Wake, North Carolina.
c. Alternative Dispute Resolution. Alternatively, BidNTime will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Wake County, North Carolina or another location mutually agreed upon by the parties. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section 14.5 by the first party to file a Claim. Should either party file an action contrary to this Section, the other party may recover attorneys’ fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
14.6. NOTICES. Except as explicitly stated otherwise, any notices shall be given by postal mail to BidNTime Auctions, Inc., 6800 Jericho Turnpike, Suite 120W, Syosset, NY 11791 (in the case of BidNTime) or to the email address You provide to BidNTime during the registration process (in Your case). Notice shall be deemed given twenty four (24) hours after email is sent, unless BidNTime is notified that the email address is invalid. Alternatively, BidNTime may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to BidNTime during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
14.7. ASSIGNMENT. You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by BidNTime, in BidNTime’s sole discretion.
14.8. NO THIRD PARTY BENEFICIARY. You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
14.9. SEVERABILITY; WAIVER. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. BidNTime’s failure to act with respect to a breach by You or others does not waive BidNTime’s right to act with respect to subsequent or similar breaches.
14.10. CONSTRUCTION. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
14.12. DISCLOSURES. The services hereunder are offered by BidNTime Auctions, Inc., 6800 Jericho Turnpike, Suite 120W, Syosset, NY 11791.
14.13. ADDITIONAL TERMS. This Agreement may be amended from time to time and the amended Agreement shall be automatically effective fifteen (15) days after it is initially posted on the BidNTime Site. In addition, when using particular services on the BidNTime Site, You agree that You are subject to any posted policies or rules applicable to services You use through the BidNTime Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement.
14.14. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding and agreement between You and BidNTime with respect to the subject matter hereof.