Liquidity Services Software Solutions, Inc., a Delaware corporation doing business as Auction.io (referred to in these terms of use as “us” or “we”) welcomes you to Auction.io!
These Marketplace Operator Terms of Use, all policies referenced in these Marketplace Operator Terms of Use, and all policies, guidelines and additional terms posted in and on our Auction.io platform and related web sites, applications, tools, and services (collectively, these “Terms of Use”) set out the terms on which we offer you access to and use of our services (as such services are described in paragraphs 2 through 4, below, the “Services”) and our Auction.io ecommerce platform (“Auction.io”). By registering for our Services, you are given an operator account (your “Operator Account”) on Auction.io and the opportunity to subscribe to our Services on the Auction.io Platform. The term “you” refers to you as the marketplace operator (“Marketplace Operator”) having a subscription and license to use our Services and our Auction.io platform in accordance with these Terms of Use. We may refer to each of us as a “party” to these Terms of Use or, collectively, as the “parties” to these Terms of Use.
Auction.io is an e-commerce platform with a comprehensive, multi-tenant software-as-a-service offering. Our Services include a configurable, private-label online auction-format marketplace (your “Store Marketplace”) on Auction.io. Each Store Marketplace comes with integrated tools for inventory management, listing, auction-listing, auction-format and buy-it-now sales, transaction settlement, in-store pick-up by buyer, in-store bin sale management, and online payment (our “Standard Services”). For an additional fee, we offer several additional, optional Services (“Optional Services”), such as integrated customer email/SMS marketing campaigns, artificial intelligence supported manifest processing, and other third-party integrations. Depending on what categories of merchandise you sell, we may, in our sole discretion, enable your merchandise to be simultaneously cross listed for sale on one or more aggregator marketplaces operated by us from time to time (each an “Aggregator Marketplace”).
From time to time, we may, in our sole discretion, release new updates to our Standard Services (“Updates”) or add, delete, or replace Optional Services. Updates and Optional Services are subject to these Terms of Use and included within the scope of Services for purposes of these Terms of Use. Standard Service and Optional Service subscriptions may be managed by your Administrator through his or her Administrator Account under your Operator Account.
Our Services may also include customization and configuration services related to the creation of your Store Marketplace (“Customization and Configuration Services”), which services shall be agreed on in a separate agreement. Customization and Configuration Services are divided between the two following categories:
a) “Customization Services” which include writing new software code (for example, scripts, programs, or class files) to meet your specific Store Marketplace’s unique business requirements (such Customization Services are usually set forth in a separate, standalone Service Agreement by and between you and us) and
b) “Configuration Services” which are services related to making changes to Auction.io’s default settings to meet specific requirements without modifying Auction.io’s source code (such configuration services are usually set forth in the Marketplace Operator Subscription Agreement which incorporate these Terms of Use).
The fees for our Services (the “Fees”) include the following:
a) Subscription Fee. Pursuant to the specific pricing terms set forth in a Marketplace Operator Subscription Agreement entered into by and between you and us, you agree to pay the fees applicable to your Operator Account’s subscription (the “Subscription”) with respect to our Services (the “Subscription Fee”). Your Subscription Fee may vary based on: (a) the number of physical store or warehouse locations associated with your Store Marketplace; (b) historic actual and future expected transaction volume of a Store Marketplace; and (c) the length of term of your subscription (the “Subscription Term”). Updates to our Standard Services are covered by your Subscription Fees.
b) Listing Fees. Separate from Subscription Fees are applicable listing fees (“Listing Fees”) charged by us for:
i) listings in excess of your Subscriptions listings per month limit;
ii) auction events above your Subscription’s auction events per month limit; and
iii) listing fees for cross-listing the assets that you post on your Store Marketplace on an Aggregated Marketplace(s).
c) Transaction Fees Separate from Subscription Fees are applicable transaction fees (“Transaction Fees”) charged by us for:
i) transactions completed through your Store Marketplace;
ii) transactions completed through our Aggregator Marketplace(s),
iii) online payment processing fees equal to a % of the online payment plus a fixed number of cents per online payment;
d) Customization and Configuration Service Fees. Any fees related to customization or configuration services that we provide to you (“Customization and Configuration Service Fees”). Configuration services will be set forth in your Marketplace Operator Subscription Agreement and customization services shall be set forth in a Service Agreement entered into by and between you and us.
e) Optional Fees Any fees related to Optional Services will be charged in accordance with terms selected by your Administrator with respect to your Store Marketplace through the Administrator’s interface in his or her Administrator Account.
You must keep a valid payment method on file with us to pay for all incurred and recurring Fees and applicable international, federal, state, provincial, and local taxes. We will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”). We will continue to charge the Authorized Payment Method for applicable Fees until our Services expire or are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars. Any Fees not paid within thirty (30) days of the date due, shall be subject to an interest charge equal to the lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand. Without limitation of any of our other rights to suspend or cancel accounts, we reserve the right to temporarily or permanently suspend or cancel an Operator Account (and all associated accounts) due to non-payment of Fees or failure to keep a valid payment method on file.
a) Opening an Operator Account. . To use our Services, you must register for an Operator Account and purchase a subscription for such Operator Account. By registering for an Operator Account and using our Services, you represent that:
i) you are not prohibited from receiving our Services under the laws of the United States of America or any other applicable jurisdiction in which you receive our Services;
ii) you are a sole proprietorship business registering in your own individual name or, alternatively, you are a duly authorized representative of a duly formed and validly existing legal entity (for example, a corporation, limited liability company, limited partnership, or partnership) with power and authority to register on behalf of such legal entity and bind such legal entity to these Terms of Use; and
iii) you are the older of either 18 years of age or the age of majority in the jurisdiction where you reside and from which you use our Services to open an Operator Account.
b) Administrator Accounts
i) The individual who first registers for an Operator Account is simultaneously issued an “Administrator Account” for such Operator Account (such individual being an “Administrator”). The Administrator may create one or more user accounts (each a “User Account”) under the Operator Account and additional Administrator Accounts allowing employees, independent contractors, and other authorized agents of the Marketplace Operator to access the Operator Account. Each User Account must be associated with a single individual user (each a “User”) and include such person’s full legal name, a mobile device telephone number specific to such individual, and a valid email account specific to such person. If the Operator Account is in the name of a legal entity, all Administrator Accounts and User Accounts should use a common domain name or mail server.
ii) The Administrator can add or delete User Accounts and set permissions for User Accounts setting the level of access and authority that such User Account may have.
iii) The Administrator and the user of each User Account (collectively, are referred to as the “users” and, individually, as a “user”)
The Auction.io site, software, and Services offered pursuant to these Terms of Use are licensed, not sold, and you acknowledge that you receive no title to or ownership of the Auction.io site, software, or Services. Furthermore, you receive no rights to the Auction.io site, the software or Services other those specifically granted in these Terms of Use. Without limiting the generality of the foregoing, you acknowledge that, and you understand that your license to use the Auction.io site, software, or Services is expressly conditioned upon you:
a) using our Services only for lawful purposes.
b) not using our Services to facilitate transactions involving any of the assets listed on Appendix B, the Prohibited Assets List (“Prohibited Assets”). For the avoidance of doubt, even if an asset is not listed as a Prohibited Asset, we reserve the right to refuse to cross-list any asset in our sole discretion.
c) not using our Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of our Services or any Store Marketplace.
d) not attempting to gain unauthorized access to Auction.io, Auction.io’s source code, an Operator Account, a User Account, an Aggregator Marketplace, a Store Marketplace or our Services through hacking, password mining or by any other means. Without limiting anything else contained herein, you agree that you shall not (or you shall not allow or assist any third-party to):
i) Copy, modify, adapt, translate, or reverse engineer any portion of Auction.io or its source code;
ii) Remove notices of or citations to any copyright, trademark or other proprietary rights contained in or on our Services, Auction.io, Auction.io’s source code, Aggregator Marketplace(s), or the Store Marketplaces of our other customers;
iii) Use any robot, spider, website search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of Auction.io, including Aggregator Marketplace(s) or the Store Marketplaces of our other customers;
iv) Reformat or frame any portion of the web pages that are part of our Services, Auction.io, Aggregator Marketplace(s), or the Store Marketplaces of our other customers;
v) Create User Accounts by automated means or under false or fraudulent pretenses.
vi) Collect or store personal data about other users either alone, or in connection with the prohibited activities described in this paragraph; or
vii) Seek to charge a customer for payment when payment has already been, or is scheduled to be, initiated through Auction.io’s integrated payment system
viii) Engage in fraudulent conduct, including but not limited to offering to make money transfers with intent to request a refund of any portion of a payment made through Auction.io’s integrated payment system or soliciting customers to mail cash or use other payment methods other than Auction.io’s integrated payment system.
ix) Circumvent, or seek to circumvent, payment through the Auction.io platform where payment through such platform is indicated to you as mandatory or is initiated by a customer.
We may take any legal action and implement any technical remedies to prevent the violation of this Section and to enforce these Terms of Use, including, without limitation, immediate termination of your Operator Account and revocation of your license to use the Auction.io site, software, and Services offered pursuant to these Terms of Use.
a) These Terms of Use may be revised or updated from time to time. Each time you access or use our Services, Auction.io, your Store Marketplace, or an Aggregator Marketplace, you signify your acceptance of the then-current Terms of Use. Any material changes in these Terms of Use take effect on posting and apply only to your use of our Services and information collected from you on and after the last updated date.
b) We reserve the right, at any time, to make changes to our Services, the Auction.io platform, your Store Marketplace, or any Aggregator Marketplace(s) or to otherwise modify, suspend or discontinue, temporarily or permanently, our Services, Auction.io, your Store Marketplace, any Aggregator Marketplace(s), or any portion or portions thereof, with or without notice.
c) Without limitation of any of our other rights to suspend or cancel accounts, you understand and agree that we may discontinue or restrict your use of our Services, Auction.io, your Store Marketplace, or any Aggregator Marketplace(s) at any time for any reason or no reason or no reason with or without notice. You agree that we will not be liable to you or to any third-party for any such modification, suspension or discontinuance.
In addition to the rights already set forth in these Terms of Use, our rights include the following:
i) In the event of a dispute regarding Operator Account ownership, we reserve the right to request documentation to determine or confirm Operator Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, or confirmation of your status as an employee of an entity. We further reserve the right to determine, in our sole discretion, rightful Operator Account ownership and transfer an Operator Account to the rightful owner. If we are unable to reasonably determine the rightful owner, without prejudice to our other rights and remedies and without limitation of any of our other rights to suspend or cancel accounts, we reserve the right to temporarily suspend or disable an Operator Account (and all associated accounts) until resolution has been determined between the disputing parties.
ii) Not all Services or features will be available to all operators at all times, and we are under no obligation to make any Service, including Upgrades, Optional Services, and Customization and Configuration Services, or any features or portions of such Services available in any jurisdiction.
iii) We reserve the right to provide our Services to your competitors and make no promise of exclusivity
iv) Verbal or written abuse of any kind (including threats of abuse or retribution) of our employees and we reserve the right to terminate any Administrator Account, User Account, or Operator Account immediately in response to such abuse.
v) We may offer our Services to your competitors and those competitors may operate their own Store Marketplace and may compete with you; provided, however, we will not share your Confidential Information with them as set forth below.
vi) We reserve the right to provide our Services to certain of our affiliates and subsidiaries and those affiliates and subsidiaries may operate their own Store Marketplace and may complete with you; provided, however, we will not share your Confidential Information with them as set forth below.
vii) Occasionally there may be information related to our Services, Auction.io, an Aggregator Marketplaces, or a Store Marketplace that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, availability, and other content provided by us, other registered operators operating their own Store Marketplaces, or our vendors and service providers. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information if any information is inaccurate at any time without prior notice and without liability to us.
a) The parties understand and agree that in the performance of these Terms of Use each party may have access to private or confidential information (“Confidential Information”) of the other party which either is marked as “confidential” or pertains to your or our customer marketing databases or customer transaction records (collectively, “Customer Records”). Each party shall hold the Confidential Information in confidence and not, without the consent of the other, disclose it to a third-party or use it for any purpose other than in performance of these Terms of Use. This obligation of confidentiality shall not apply to information that is (i) generally available to the public through no act or omission of the receiving party or (ii) becomes known to the receiving party through a third-party with no obligation of confidentiality, (iii) was independently developed by the receiving party through no use of the confidential information and the receiving party can demonstrate such independent development, (iv) was known by the receiving party prior to the receipt of the confidential information; or (v) is required to be disclosed by law, court or by any government or regulatory authority. All confidential information will remain the exclusive property of the owner except as otherwise set forth below.
b) Except as otherwise provided below, no public announcement, press release or public communication concerning these Terms of Use shall be made without the prior consent of the other party.
a) You are responsible for all content and materials posted or transmitted through or by use of your Operator Account (including all Administrator Accounts and User Accounts under your Operator Account and associated with your Store Marketplace (the “Marketplace Operator Content”));
b) you are representing and warranting that you:
i) either own or license all Marketplace Operator Content;
ii) no other party has any claim of ownership to any part of the said Marketplace Operator Content preventing you from using Marketplace Operator Content;
iii) all Marketplace Operator Content is true and complete to the best of Marketplace Operator’s knowledge, and
iv) the Marketplace Operator Content does not violate these Terms of Use and will not cause injury or harm to any person or entity
c) You agree to post only Marketplace Operator Content that is appropriate for general audiences and is not confidential or private.
d) In addition to your obligations stated elsewhere in these Terms of Use, you also agree that the following actions are prohibited and a material breach of these Terms of Use. By way of example and not limitation, you agree that you will not:
i) aggregate, copy, duplicate, publish, or make available any of our intellectual property to third parties outside the website in any manner;
ii) defame, abuse, harass, stalk, threaten, or otherwise violate the privacy or publicity rights of others, or impersonate anyone else or misrepresent your identity or affiliation;
iii) publish, post, upload, distribute, or disseminate any inappropriate, profane, defamatory, pornographic, offensive, infringing, obscene, indecent, or unlawful topic, name, material, content, or information
iv) upload or download files that contain any content protected by intellectual property laws or other laws, unless you own or control the rights or interests or have received all necessary consents or permissions;
v) upload or transmit files that contain viruses, malware, disabling code, corrupted files, or any other similar software or programs that may damage the operation of another’s computer;
vi) use our Services, Auction.io, and Aggregator Marketplace(s) to make available unsolicited advertising or promotional materials, spam, pyramid schemes, chain letters, or similar forms of unauthorized advertising or solicitation, or hack or violate any security measures;
vii) falsify or delete any author attributions, legal or other notices, or proprietary, designations or labels of origin or source; or engage in any other action that, in our judgment, exposes us or any third-party to potential liability or detriment of any type;
e) Any uses of our Services, Auction.io, and the Aggregator Marketplaces in any way not expressly permitted by these Terms of Use is prohibited, and may be actionable under applicable law;
f) You further grant us the right to use the name that you submit in connection with such Marketplace Operator Content in our sole discretion. WE WILL NOT BE REQUIRED TO TREAT ANY MARKETPLACE OPERATOR CONTENT AS CONFIDENTIAL AND WILL NOT INCUR ANY LIABILITY AS A RESULT OF ANY SIMILARITIES BETWEEN MARKETPLACE OPERATOR CONTENT AND SERVICES THAT MAY APPEAR IN OUR AGGREGATOR MARKETPLACES, OTHER SITES, OR OUR OPERATIONS. YOU WAIVE THE OPPORTUNITY TO INSPECT OR APPROVE SUCH USE, AND ANY OBLIGATION TO IDENTIFY YOU IN CONNECTION WITH MARKETPLACE OPERATOR CONTENT.
g) We may, but are under no obligation to, monitor and edit or remove any activity or Marketplace Operator Content at its sole discretion. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY MARKETPLACE OPERATOR CONTENT POSTED BY YOU, BY US ON YOUR BEHALF OR ANY THIRD-PARTY. WE DO NOT NECESSARILY ENDORSE ANY OPINION OR STATEMENT CONTAINED IN ANY MARKETPLACE OPERATOR CONTENT.
a) Our Proprietary Rights. You acknowledge and agree that, as between us, all right, title, and interest in and to our Services, Auction.io and any Aggregator Marketplace(s), including without limitation any patents, copyrights, trademarks, brands, trade secrets, inventions, know-how, and all other intellectual property rights, are--other than in respect of any Marketplace Operator Content solely made by you without use of our or any third-party’s intellectual property--owned exclusively by us or our affiliates, other tenants on Auction.io, suppliers, vendors, merchants, licensors, or other partners or sponsors, and are protected by United States intellectual property and other applicable laws. YOU DO NOT HAVE AND CANNOT CLAIM ANY INTELLECTUAL PROPERTY RIGHTS OR OWNERSHIP, IN WHOLE OR IN PART, TO ANY OF OUR SERVICES, AUCTION.IO, OR AGGREGATOR MARKETPLACE(S), WHETHER MODIFIED OR UNMODIFIED, OTHER THAN IN RESPECT OF ANY MARKETPLACE OPERATOR CONTENT SOLELY MADE BY YOU WITHOUT OUR OR ANY THIRD-PARTY’S INTELLECTUAL PROPERTY. Accordingly, you agree not to copy, modify, distribute, transmit, display, republish, sell, resell, or exploit, or create derivative works from, for any purpose, any portion of our Services, Auction.io, or Aggregator Marketplace(s) other than as expressly authorized in writing signed by us.
b) Data Processing Responsibilities. Both parties process buyer personal information (for example, buyer name, mobile number, e-mail address and physical address) and this means that the parties are considered separate and independent data controllers of buyers’ personal information under applicable law. That means that each party is responsible for the personal information it processes. For example, if you accidentally disclose a buyer and his or her contact information when fulfilling another buyer’s order, you will be responsible for that unauthorized disclosure. If, however, the parties are found to be joint data controllers of a buyer’s personal information, and if we are sued, fined, or otherwise incur expenses because of something that you did as a joint data controller of buyer personal information, you agree to indemnify us for such a claim in accordance with the below indemnification claims
c) Proprietary Rights and Responsibility as to Customer Records.
i) Subject to the rights of the customer with respect to his or her proprietary and personal information, you acknowledge and agree that, as between us, all right, title, and interest in any Customer Record created with respect to the registration of a customer on your Store Marketplace belongs to you. Further, you remain responsible for any such Customer Records with respect to your Store Marketplace.
ii) Subject to the rights of the customer with respect to his or her proprietary and personal information, you acknowledge and agree that, as between us, all right, title, and interest in any Customer Record created with respect to the registration of a customer on any of our Aggregator Marketplace(s) belongs to us. Further, we remain responsible for any such Customer Records with respect to our Aggregator Marketplace(s).
iii) If a customer registered on your Store Marketplace completes a transaction on an Aggregator Marketplace related to your merchandise listed by you on your Store Marketplace, we will jointly own and remain responsible for the Customer Record created with respect to such a transaction and the buyer registration will become a jointly owned customer of both the Aggregator Marketplace and the Buyer Marketplace.
iv) If a customer registered on our Aggregator Marketplace completes a transaction on your Store Marketplace with respect your inventory listed on your Store Marketplace, we will jointly own and remain responsible for the Customer Record created with respect to such a transaction.
v) On expiration or termination of these Terms of Use (such termination being through no breach of these Terms of Use), we will provide you a copy of your Customer Records (meaning active registered customers and completed transaction) for the past three (3) years upon reasonable request by you and reimbursement of our reasonable costs and records in producing such records for you. We shall be entitled to retain a copy of your Records as support with respect to our own financial books and records, and we will treat such information as Confidential Information except to the extent that we jointly own the Customer Record
vi) The foregoing remains subject to the right of any customer under applicable law to delete their personal information relating to their own Customer Records.
We are not a party to and have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, person or organization (“Your Interactions”). You must conduct any necessary, appropriate, prudent, or judicious investigation, inquiry, research, or due diligence with respect to Your Interactions.
a) Our Trademarks. The trademarks, service marks, logos, trade names, and trade dress (collectively, “Marks”) used with our Services, Auction.io, or Aggregator Marketplace(s) are proprietary to us or our affiliates, other tenants on Auction.io, suppliers, vendors, merchants, licensors, or other partners. Third-party trademarks referenced with respect to our Services, Auction.io, or Aggregator Marketplace(s) do not constitute, or imply our affiliation with, our endorsement of, or our recommendation to the respective trademark owners, or by us of the respective trademark owners. Without limitation, our Marks include trademarks registered in the United States Patent and Trademark Office or in other jurisdictions and owned by us.
b) Your Trademarks.
The Marks used with your Store Marketplace are proprietary to you or your affiliates and subsidiaries. Without limitation, your Marks include trademarks registered in the United States Patent and Trademark Office or in other jurisdictions and owned by you.
c) Limited Marketing Rights. You grant us a limited, non-exclusive, non-transferable and revocable right to use your name, logo, and your Marks solely in connection with the marketing and promotion of our Services. We agree to use your name, logo, and Marks in accordance with any usage guidelines provided by you. We shall not alter or modify your Marks in any way without your prior written consent.
a) In our sole discretion, we may disable or terminate use by users who infringe the intellectual property rights of others. If we receive a DMCA Notice, we may disable access or remove the allegedly infringing content from your Store Marketplace. If you do not think the claim is valid, you can send a counter notification. If you believe one of our merchants, other tenants on Auction.io, or such tenants’ merchants is infringing your intellectual property rights, you can send us a DMCA Notice as follows:
i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii) a description of where the material that you claim is infringing is located on the website (providing URL(s) in the body of an email is the best way to help us locate content quickly);
iv) your name, address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property right owner’s behalf.
b) For notice of claims of copyright or other intellectual property right infringement, we can be reached by sending a claim to:
Copyright Agent, c/o Legal Department
Liquidity Services, Inc.
6931 Arlington Rd, Ste 460
Bethesda, MD 20814
E-mail: copyrightagent@liquidityservices.com
Phone: (202) 467-6868
c) Once provided with a notice of takedown, you can reply with a counter notification using our form if you object to the complaint. The original complainant has fourteen business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material.
d) Aggregator Marketplace(s) may contain advertisements, postings and links to websites operated by other parties. Aggregator Marketplaces provides these advertisements, postings and links as a convenience, and your use of other websites is at your own risk. The advertisements, postings and linked websites are not under our control, and we are not responsible for their content or privacy practices. Such advertisements, postings, links, or references to other parties’ products or services do not imply our endorsement of information, material, products or services of any other party or any other website
We, at our expense, will defend and indemnify you from and against any and all third-party claims for damages, judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney’s fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against the Marketplace Operator which directly relate to a claim, action, lawsuit, or proceeding made or brought against the Marketplace Operator by a third-party alleging the infringement or violation of such third-party’s valid and enforceable patent, trade secret, or copyright (each an “Operator Claim”) by way of your authorized use of the Auction.io platform, except to the extent such Operator Claim results from (a) modification of the Auction.io platform by the Marketplace Operator or their users; (b) use of the Auction.io platform by the Marketplace Operator or their users in a manner contrary to the use of the Auction.io platform as set forth in these Terms of Use or to the instructions, guidelines, or similar documentation given to the Marketplace Operator or its users by us; or (c) continued use of the Auction.io platform by the Marketplace Operator or their users, after notice from us of an alleged infringement which is the subject of the Operator Claim. The Marketplace Operator agrees to give prompt written notice to us of any such claim at legal@liquidityservices.com. Delay in furnishing notice of any such claim will not discharge us from the indemnification obligation hereunder, except to the extent such delay results in actual prejudice to us. In the event of an Operator Claim, our obligations shall be deemed to be satisfied if we: (a) obtain a license for the Marketplace Operator to continue to use the allegedly infringing portions of the Auction.io platform, (b) refund any pro-rated fee paid for such allegedly infringing portion of the Auction.io platform during the twelve (12) month period preceding such claim, in which event the Marketplace Operator and all its users shall cease all use of such portion of the Auction.io platform or (c) replace or modify such infringing portion of the Auction.io platform with a functionally-similar service that is non-infringing.
a) EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 17, YOU AGREE THAT YOU ARE MAKING USE OF THE SERVICES AT YOUR OWN RISK, AND THAT THE SERVICES ARE BEING PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
b) WE EXCLUDE, AND OUR SERVICES OUR PROVIDED WITHOUT, ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF OUR SERVICES (INCLUDING THE AUCTION.IO PLATFORM) OR THE AGGREGATOR MARKETPLACE(S). WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES (INCLUDING THE AUCTION.IO PLATFORM) OR THE AGGREGATOR MARKETPLACE(S) WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT USE OF OUR SERVICES (INCLUDING THE AUCTION.IO PLATFORM), AGGREGATOR MARKETPLACE(S) OR YOUR STORE MARKETPLACE CREATED FROM OUR AUCTION.IO PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT LOSS OF DATA WILL NOT OCCUR. WE MAKE NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE BY OR THROUGH OUR SERVICES (INCLUDING THE AUCTION.IO PLATFORM) OR AGGREGATOR MARKETPLACE(S) OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. YOU ARE RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY SERVICES OR CONTENT YOU MAY OBTAIN FROM SERVICES (INCLUDING THE AUCTION.IO PLATFORM) OR AGGREGATOR MARKETPLACE(S) IS FREE OF VIRUSES OR OTHER HARMFUL CODE.
a) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY (EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 17 ABOVE) AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
b) NOTWITHSTANDING ANY PROVISION TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE FURTHER DISCLAIM ALL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF OUR SERVICES (INCLUDING OUR AUCTION.IO PLATFORM), OR ANY MARKETPLACE CREATED FROM AUCTIION.IO (INCLUDING YOUR STORE MARKETPLACE AND AGGREGATOR MARKETPLACES), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY EXCEED TOTAL FEES PAID TO US IN CONNECTION WITH OUR SERVICES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
c) Limitation of Liability Examples. To the extent permitted by applicable law, the limitations in this Section extend to our liability to:
i) the ability or inability of you or your users to use our Services;
ii) delays or disruptions in our Services;
iii) viruses or other malicious software obtained by accessing, or linking to, our Services;
iv) glitches, bugs, errors, or inaccuracies of any kind in our Services;
v) damage to your or your users’ hardware device or other computer systems or software from using any of our Services;
vi) suspension or other action taken regarding your Operator Account (and all associated accounts);
vii) your need to modify practices, content, or behavior or your loss of or inability to do business, because of changes to these Terms of Use or our Services;
viii) your inability to import or export assets, or fines or costs incurred related to the import or export of assets;
ix) any act or omission of a third-party, including without limitation, your vendors from whom you source merchandise, your buyers on your Marketplace Store, other Marketplace Stores, and their respective employees and agents; or
x) any dispute between a you and a third-party, including your buyers and vendors (including vendors from the Aggregator Marketplace(s) or our other auction sites).
d) Exception . Nothing in these Terms of Use shall limit or exclude liability for death or personal injury resulting from our gross negligence or willful misconduct or any other statutory or other liability that cannot be limited or excluded under applicable law.
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE AND UNDERSTAND THAT YOU WILL NOT BRING AGAINST LIQUIDITY SERVICES, OR ANY OF ITS AFFILIATES OR RELATED ENTITIES, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND PERMITTED SUCCESSORS AND ASSIGNS, ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION RELATED TO YOUR ACCESS TO, DEALINGS WITH, OR USE OF OUR SERVICES, AND ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND ONLY IN ACCORDANCE WITH THE ARBITRATION SECTION 24 BELOW.
a) IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
b) Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
i) Complaints regarding the service or requests to receive further information regarding use of this service may be sent to legal@liquidityservices.com.
ii) The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
a) You represent and warrant that (i) your use of our Services and Aggregator Marketplace(s) will be in strict accordance with these Terms of Use and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the country in which you reside) and (ii) your use of our Services and the Aggregator Marketplace will not infringe or misappropriate the intellectual property rights of any third-party; and
b) You represent and warrant that all information you provide in connection with registration, purchase of our Services, and use of our Services and Auction.io is true and complete.
c) You represent and warrant that your use of our Services and the Aggregator Marketplaces will not constitute or otherwise violate any other agreement or the right of any third-party arising therefrom.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD US, OUR AFFILIATES AND SUBSIDIARIES AND OUR OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS AND AGENTS HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM, OR DEMAND, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, MADE BY YOU OR ON YOUR BEHALF OR BY ANY THIRD-PARTY DUE TO OR ARISING OUT OF ANY CLAIM RELATING TO: (A) YOUR USE OF OR RELIANCE ON OUR SERVICES AND AGGREGATOR MARKETPLACE(S); (B) YOUR PRODUCTS, YOUR BRANDS, OR YOUR DEALINGS IN CONNECTION WITH OUR SERVICES AND AGGREGATOR MARKETPLACE(S); (C) YOUR MARKETPLACE OPERATOR CONTENT; (D) YOUR VIOLATION OF THESE TERMS, ANY APPLICABLE LAWS, OR OUR RIGHTS OR THOSE RIGHTS OF ANY THIRD-PARTY; (E) ANY ACTIVITY RELATED TO YOUR OPERATOR ACCOUNT, AN ADMINISTRATOR ACCOUNT OR A USER ACCOUNT OR ANY PASSWORD RELATED TO SUCH ACCOUNT, IF ANY; OR (F) YOUR USE OF OR RELIANCE ON ANY OTHER TENANT ON AUCTION.IO, ANY BUYER OF YOUR MERCHANDISE THROUGH YOUR STORE MARKETPLACE OR AGGREGATOR MARKETPLACE(S), OR VENDOR FROM WHICH YOU SOURCE MERCHANDISE AVAILABLE FOR SALE ON YOUR STORE MARKETPLACE, OR OTHER USER CONTENT.
a) YOU ACKNOWLEDGE THAT THESE TERMS OF USE EVIDENCES A TRANSACTION INVOLVING INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT SHALL GOVERN (I) THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS, AND (II) ALL ARBITRATION PROCEEDINGS THAT TAKE PLACE PURSUANT TO THESE ARBITRATION PROVISIONS. THE PARTIES AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY AGREED TO BY THE PARTIES IN WRITING, OR UNLESS EXPRESSLY PROHIBITED BY LAW, MARYLAND SUBSTANTIVE LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) WILL APPLY IN ANY BINDING ARBITRATION PROCEEDING OR SMALL CLAIMS COURT ACTION REGARDLESS OF WHO INITIATES THE PROCEEDING, WHERE YOU RESIDE OR WHERE THE DISPUTE AROSE.
b) In the event any dispute between you and us (each a “party,” and, collectively, the “parties”) that cannot be resolved by the parties, such dispute shall be submitted to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association that are in effect as of the date of these Terms of Use (the “Arbitration Rules”) before a “Qualified Arbitrator” assigned by the Association. The place of arbitration shall be Bethesda, Maryland. In order to avoid a prolonged dispute, the parties have agreed that notwithstanding anything to the contrary in the Arbitration Rules, the rules for “Expedited Procedures” shall apply to all disputes arising under these Terms of Use. The parties further agree that the “Optional Procedures for Large, Complex Commercial Disputes” shall not apply and not be used for any dispute under these Terms of Use. In the event that any party calls for a determination in arbitration pursuant to the terms of this Section, the parties shall have a period of ten (10) days from the date of such request to appoint the Qualified Arbitrator. The Qualified Arbitrator shall decide the issues submitted to him/her in accordance with (i) the language, commercial purpose and restrictions contained in these Terms of Use and the exhibits hereto and (ii) to the extent not governed by the written agreements of the parties to the dispute, what is just and equitable under the circumstances, provided that all substantive issues shall be determined under the laws of the State of Maryland and provided further that each issue to be arbitrated shall be arbitrated and decided as a separate issue. Because a prolonged dispute between the parties may have a serious adverse effect on the parties, the parties instruct the Qualified Arbitrator to render a decision as quickly as necessary and minimize all time periods for conducting the arbitration to the greatest extent possible. The Qualified Arbitrator shall decide the dispute based solely on the submissions of the parties and without discovery or third-party testimony unless the Qualified Arbitrator deems such discovery or third-party testimony necessary. Each party to the arbitration shall fully and in good faith cooperate with one another in the production and discovery of requested documents, and in the submission and presentation of arguments to the Qualified Arbitrator at the earliest practicable date; and the Qualified Arbitrator shall unilaterally decide the dispute in a written opinion which shall be conclusive and binding upon them. The Qualified Arbitrator conducting any arbitration shall be bound by the provisions of these Terms of Use and shall not have the power to add to, subtract from or otherwise modify such provisions. The parties hereby renounce all recourse to litigation with respect to the matters in these Terms of Use, and agree that, with respect to such matters only, (i) no reference shall be made to any court on any point of law and (ii) that the ruling and award (if any) of the Qualified Arbitrator shall be final and subject to no judicial review. Judgment on the award of the Qualified Arbitrator may be entered in any court having jurisdiction over the party against which enforcement of the award is being sought, and any party may institute judicial proceedings to compel arbitration in accordance with the provisions hereof. The arbitration costs, fees and expenses shall be borne as determined by the Qualified Arbitrator, the parties intending that a party which fail to prevail with a preponderance of the dollar items in dispute be responsible for the legal and other fees incurred by the prevailing party, including all arbitration fees. The laws of the State of Maryland, without regard to choice of law principles, shall apply to any dispute between us, except as to matters relating to arbitration, which shall be governed by the Federal Arbitration Act. The arbitration tribunal shall consist of one (1) arbitrator. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. The arbitrator shall have the authority to impose equitable and injunctive relief, as well as to award monetary relief, as the arbitrator deems appropriate. Any arbitration will be administered by the American Arbitration Association, using its Commercial Arbitration Rules, and must be commenced within six (6) months after the dispute arises or any claim arising from the dispute shall be barred.
c) If your principal place of business is in the United States then you agree that any dispute between us arising out of or relating to these Terms of Use, our Services, and the Marketplace will be decided only by arbitration, individually, and not on a class-wide basis. You knowingly waive any right to participate in any form of “class,” “joint,” or “representative” litigation (including in any “private attorney general capacity”) against us.
a) Term. The Term of these Terms of Use shall extend until such time that your outstanding subscription(s) for our Services expire or are otherwise terminated in accordance with these Terms of Use.
b) Termination by Us. We may terminate or suspend your Operator Account (and any accounts we determine are related to your Operator Account) and your access to the Services should we have reason to believe you, your Marketplace Operator Content, or your use of our Services violate these Terms of Use. If we do so, its important for you to understand that you do not have a contractual or legal right to continue to use our Services. Generally, we will notify you that your account has been terminated or suspended, unless you’ve repeatedly violated our Terms or we have legal or regulatory reasons preventing us from notifying you. We reserve the right to change, suspend, or discontinue any of the Services for you, any or all users, at any time, for any reason, including those laid out in these Terms of Use. We will not be liable to you for the effect that any changes to the Services may have on you, including your income or your ability to generate revenue through the Services.
c) Termination for Breach by Either Party.
i) Without prejudice to any rights that have accrued under these Terms of Use or any of its rights or remedies, either party may at any time terminate these Terms of Use or the Services with immediate effect by giving written notice to the other party if:
(1) the other party fails to pay any amount due under these Terms of Use on the due date for payment and remains in default not less than 10 calendar days after being notified in writing to make such payment;
(2) the other party commits a material breach of these Terms of Use (other than failure to pay any amounts due under these Terms of Use) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(3) the other party repeatedly breaches of these Terms of Use in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the these Terms of Use;
(4) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
ii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.
In the event of a termination of these Terms of Use by You for uncured breach, your fees will be prorated to the date of termination. In the event of a termination of these Terms of Use by us for your uncured fees, you will remain obligated to pay us your Fees through the term of any outstanding subscription term notwithstanding termination of these Terms of Use.
d) Voluntary Termination by You. You may terminate your Master Account at any time by contacting us in writing; provided however, that voluntary termination shall in no way relieve you of your responsibility to remit payment for all Fees associated with your Operator Account.
a) Entire Agreement. Your Marketplace Operator Subscription Agreement, these Terms of Use, any selections of Optional Services by your Administrator through his or her Administrator Account interface and the terms of such Optional Services described through the Administrator Account interface, and any applicable Service Agreement (if we have been engaged to provide customization services ), and these Terms of Use (including any policies and guidelines referenced herein) represents the entire agreement between you and us and supersede all previous written or oral agreements. If any part of these Terms of Use (including any referenced terms and conditions, guidelines, and policies) is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
b) Binding Effect and Third-Party Beneficiary. Except if specifically stated in these Terms of Use, neither party, nor any of our respective employees or agents, will have the power or authority to bind or obligate the other party. No third-party is a beneficiary of these Terms of Use.
c) Your Feedback. We are committed to continuous improvement of our Services and our Auction.io platform. Except with respect to Marketplace Content and your Marks, any ideas or materials that you submit to us are considered non-confidential and non-proprietary to you. You grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish such ideas and materials for any purpose, without compensation to you.
d) Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of these Terms of Use at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision of these Terms of Use will not affect the full right to require such performance at any time thereafter.
e) Injunctive Relief. If Subscriber breaches Sections 8, 11-13 of these Terms of Use, we will be entitled, in addition to any other rights available under these Terms of Use or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
f) Severability. If any provision or portion thereof of these Terms of Use or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability. All other provisions and portions of them hereunder will not be affected by the invalidity and will be valid and enforced to the fullest extent permitted by law.
g) Assignment. You may not assign or transfer, directly or indirectly (including by merger, change in control, or by operation of law), your rights or obligations under these Terms of Use without our prior written consent, and any assignment or transfer in violation of this provision shall be null and void.
h) Force Majeure. Any failure or delay by us in the performance of its obligations pursuant to these Terms of Use will not be deemed a default or breach of these Terms of Use or a ground for termination to the extent such failure or delay is due to computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under these Terms of Use are to be executed, strikes, supplier and third-party failure, lockouts, or labor difficulties, or any similar cause beyond our reasonable control.
i) Survival. The following obligations will survive termination or expiration of these Terms of Use for any reason: Sections 5, 6, 11, 13, 17-24, and this Section and any of your obligations to pay our Fees. We reserve the right to seek all remedies available at law and in equity for violations of these Terms of Use, including without limitation the right to block access from a particular internet address. The relationship between us is one of independent contractors. Neither of us will represent that we have any authority to assume or create any obligation, express or implied, on behalf of the other except as specifically provided herein.
j) Business Days. Business days means any day other than a Saturday, Sunday or a holiday recognized by the U.S. Government
k) Further Assurances. Each party, along with its respective employees, agents, directors, officers, and affiliates, shall, at its own cost and expense, execute any additional documents and take such further actions as may be reasonably required to carry out the provisions of these Terms of Use and give effect to the transactions contemplated hereby