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User Agreement
Welcome to the Auction Hawk web site (the "Site"). This user agreement specifies the terms
and conditions under which Auction Hawk agrees to provide you with access to the Site.
AH may amend this Agreement at any time by posting the amended terms and conditions on the Site.
You are responsible for reviewing and becoming familiar with any
changes. Auction Hawk, in its sole discretion, may add, delete, or modify some or all of the features of the
Site or Services at any time. This agreement was last revised on December 9, 2004.
1. Eligibility and Registration
Use of the Services is limited to parties that lawfully can enter into and form contracts
under applicable law. Without limiting the foregoing, the Services are not available to minors.
Further, the Services are not available to parties whose use of the Services has been suspended
or terminated.
To use the Services, you must submit a complete registration form on behalf of
yourself or the corporation, partnership or other legal entity that will be using the Services. By
accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable,
(b) you are authorized to sign for and bind the corporation, partnership or other legal entity that
will be using the Services. You shall provide current, complete and accurate registration information
(including email address and credit card information), and then update the information as required to
keep the registration information current, complete and accurate.
2. Passwords and Security
You shall at all times maintain the confidentiality of your user names and passwords. If you are a
corporation, partnership or other legal entity, you may allow employees to use user names and passwords,
provided that you are responsible for all activity and all charges by such employees. Permitting use of
the Services by a third party is prohibited and is a violation of this Agreement. If there is a breach
of security through your account, you must immediately change your password and also notify us at
this link. You will be liable for any unauthorized
use of the Services until you notify us of the security breach.
3. Fees and Payment Terms
You agree to pay the then current fees associated with using our Services and all applicable taxes.
All fees are in U.S. Dollars. The fees are set forth in the
Fee Schedule and Payment Terms, which are incorporated by reference.
You agree to be charged a $20 account handling fee for returned checks, account transfers, or other
account-related issues which require more than 15 minutes of attention.
4. User Conduct
You agree to comply with all applicable laws, statutes, ordinances and
regulations related to use of the Services. You may not use our Services engage in fraud or other
illegal activity, or to infringe the intellectual property rights of others. If you would like to review
our copyright policy, or believe that one of our users has infringed on your copyrighted materials,
please review our Copyright Notice for further instructions.
You agree to comply with the terms and conditions of all agreements you have
with third parties, including providers of Marketplaces, as such terms and conditions relate to use
of the Services including, without limitation, terms and conditions related to types of items that
may be sold or restrictions on concurrent sales.
You agree that you will not use any device, software or routine to interfere
or attempt to interfere with the proper working of the Site or any transaction conducted on the Site.
You agree that you will not take any action that imposes an unreasonable or disproportionately large
load on our infrastructure or limits our ability to provide the Services. You agree that you will
not collect, copy, reproduce, alter, modify, create derivative works, or publicly display any content
or information (except for Your Materials) from the Site without the prior expressed written
permission of Auction Hawk or the appropriate third party. You agree that you will not use any robot,
spider, or other automatic device or routine to access or interface with the Site.
5. Your Materials
"Your Materials" is defined as any information, data, text, graphics,
photographs, images or other materials you provide (directly or indirectly) to us or other users of
the Services. For example, Your Materials include information you submit to Marketplaces that we
obtain via the Services (such as, Marketplace email addresses, user ids and passwords). You are
solely responsible for Your Materials, and we act as a passive means for your online storage,
distribution and publication of Your Materials.
Your Materials (or any items included therein): (a) shall not be false,
inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen
items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret or other
proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute,
ordinance or regulation (including without limitation those governing export control, consumer
protection, unfair competition, anti-discrimination, false advertising, deceptive practices, or
securities transactions); (e) shall not be defamatory, libelous, unlawfully threatening or
unlawfully harassing; (f) shall not be obscene, contain child pornography; and (g)
shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs
or other suppliers; (h) shall not violate the terms and conditions of any agreements you have with
third parties, including providers of Marketplaces, as such terms and conditions relate to your use of
the Services; (i) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or
other computer programming routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data, or personal information.
You shall only use the space allocated to you in the image space for storing
images used in advertisements placed through the Services.
By entering into this Agreement and providing Your Materials to Auction Hawk, you
grant Auction Hawk a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through
multiple tiers) right (including a waiver of any applicable moral rights) to exercise the copyright
and publicity rights you have in Your Materials, in any existing or future media now known or not
currently known, solely for purposes related to providing the Services ("License"). You represent and
warrant that you have the authority to grant the License and that the holder of any intellectual
property or other proprietary rights in Your Materials has licensed, assigned or waived such holder's
rights to the extent necessary to grant the License.
Any communications or materials you transmit to Auction Hawk by electronic mail or
otherwise or post in a public area of the Site may be used by us or our referrals for any purpose,
including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and
posting. Furthermore, we, and our referrals, are free to use any ideas, concepts, know-how or
techniques contained in any such communication for any purpose whatsoever, including, but not limited
to, developing, manufacturing and marketing products using such information.
By using the Services, you authorize Auction Hawk to access Third-Party Marketplaces
with which you have usage agreements, on your behalf, to retrieve and post information and materials
necessary to provide the Services to you, and you hereby appoint Auction Hawk as your agent for this limited
purpose. You hereby permit Auction Hawk to use such retrieved information and materials to accomplish the
foregoing, and to communicate with your customers on your behalf. You hereby acknowledge that our
Services may or may not provide all the information and functionality that you could obtain directly
from the Marketplaces.
Auction Hawk reserves the right to access, monitor, remove, or disable access to any
of Your Materials at any time in its sole discretion.
6. Auction Hawk and Third-Party Intellectual Property
Other than Your Materials, all content included or available on the Site, such
as advertisements, text, graphics, logos, button icons, images, audio clips and software, is the
property of Auction Hawk and/or third parties and is protected by copyrights, trademarks or other
intellectual and proprietary rights. The compilation (meaning the collection, arrangement and assembly)
of all content on the Site is the exclusive property of Auction Hawk and/or its licensors, suppliers and
distributors and is protected by copyrights or other intellectual and proprietary rights. All software
used on the Site is the property of Auction Hawk and/or its software suppliers or distributors and is
protected by copyrights, patents or other intellectual and proprietary rights.
Subject to the terms and conditions of this Agreement, Auction Hawk grants a
limited license to you to make personal use of the Site and the Services only for their intended
purposes. This license expressly excludes any resale of the Site and the Services, making any
derivative of the Site or the Services, the collection and use of other users' email addresses or
other materials (for example, advertisements), or any data extraction or data mining whatsoever,
except with the express consent of the owner of such materials. You may not repost or otherwise
reuse advertisements that you create using the Services other than through the Site.
Auction Hawk retains all right, title, and interest in and to its trademarks,
service marks and trade names worldwide (collectively, the "Marks"). You shall only use Auction Hawk's
Marks with the express permission of Auction Hawk and then only in the manner authorized. Under no
circumstances may you alter, modify, or change Auction Hawk's Marks.
7. Suspension and Termination
Without limiting other remedies, we may immediately issue a warning, temporarily suspend,
indefinitely suspend, or terminate your access to the Site and Services if you breach any of the
terms of this Agreement or if you take any actions that, in our sole judgment, may cause legal
liability for or claims against you, our users, or us. In the event Auction Hawk suspends or terminates
your access to the Site or Services, you acknowledge that you may be denied any further access to
Your Materials.
8. Privacy
Auction Hawk is committed to protecting your privacy and we will only use and disclose Your Materials
in accordance with our then current Privacy Policy which is
incorporated herein by reference
9. Warranty Disclaimer
THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Auction Hawk AND OUR
SUPPLIERS OR DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.
Auction Hawk AND OUR SUPPLIERS OR DISTRIBUTORS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WITHOUT LIMITATION:
(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT;
(B) THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE,
ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE
NEGLIGENCE OF Auction Hawk OR OUR SUPPLIERS OR DISTRIBUTORS.
Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may
not fully apply to you. You may also have other legal rights which vary from state to state.
10. General Release
BECAUSE Auction Hawk AND OUR SUPPLIERS OR DISTRIBUTORS ARE NOT INVOLVED IN DEALINGS
BETWEEN OUR USERS OR BETWEEN OUR USERS AND MARKETPLACE USERS, IF A DISPUTE ARISES BETWEEN YOU AND ANOTHER
PARTY, YOU RELEASE Auction Hawk (AND ITS AGENTS AND EMPLOYEES, SUPPLIERS AND DISTRIBUTORS) FROM CLAIMS, DEMANDS
AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED,
DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. FURTHER, YOU WAIVE ANY
RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE 1542 (OR ANY OTHER SIMILAR STATUTE) WHICH STATES:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS FAVOR A THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
YOU ACKNOWLEDGE AND AGREE THAT Auction Hawk IS NOT RESPONSIBLE FOR THE
AVAILABILITY OF MARKETPLACES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICES,
CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH MARKETPLACES. YOU AGREE
THAT Auction Hawk SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS
CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH SERVICES,
CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS.
YOU ACKNOWLEDGE AND AGREE THAT Auction Hawk DOES NOT CONTROL AND IS NOT
RESPONSIBLE FOR INFORMATION PROVIDED BY OTHER USERS WHICH IS MADE AVAILABLE ON THE SITE. YOU MAY FIND
OTHER USER'S INFORMATION TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU AGREE THAT Auction Hawk
SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED
TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH INFORMATION.
11. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL Auction Hawk OR OUR SUPPLIERS AND/OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, CONTENT, FILES,
PROFIT OR GOODWILL, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES OR
THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS
ENTERED INTO THROUGH THE SERVICES. THE AGGREGATE LIABILITY OF Auction Hawk AND OUR SUPPLIERS OR DISTRIBUTORS
UNDER THIS AGREEMENT SHALL NOT EXCEED ONE MONTHLY PAYMENT OF SUBSCRIPTION DOLLARS (NO HIGHER THAN $89.99). Some states do not allow the
limitation of liability, so the foregoing limitation may not apply to you.
12. Indemnity
You hereby agree to, at your own expense, indemnity, defend and hold Auction Hawk and our subsidiaries,
referrals, officers, directors, agents, and employees harmless from and against any loss, cost,
damages, liability, or expense arising out of or relating to (a) a third-party claim, action or
allegation of infringement, misuse or misappropriation based on information, data, files or other
content submitted by you to the Site; (b) any fraud, manipulation, or other breach of this Agreement
by you; (c) any third-party claim, action or allegation brought against Auction Hawk arising out of or
relating to a dispute with you over the terms and conditions of an agreement or related to the
purchase or sale of any goods or services; (d) your violation of any law or the rights of a third
party; or (e) your use, or Auction Hawk's provision, of the Services or use of your account by any third
party. Auction Hawk will have the right to participate in its defense and hire counsel of its choice, at
your expense. You will not settle any action or claims on Auction Hawk's behalf without the prior written
consent of Auction Hawk.
13. Notices
Auction Hawk shall provide notice to you via email to the email address you provide in your
registration information. Such notice shall be deemed given 24 hours after it is sent, or earlier
if actually received by you earlier. Alternatively, Auction Hawk may choose to provide notice to you via
certified or registered mail to the mailing address you provide in your registration information.
In such case, notice shall be deemed given 3 days after the date of mailing. You shall provide notice
to Auction Hawk via email to this link, or a copy sent
via certified or registered mail.
14. Termination
Notwithstanding the notice provisions above, you may terminate this Agreement at any
time by filling out our cancellation form. Cancellations by any
other method are invalid methods and do not serve as cancellations.
PayPal subscriptions must be cancelled by visiting
PayPal.com and selecting "cancel subscription" from
the transaction detail page for the subscription. Select "cancel subscription" from
the transaction detail page for the subscription. All customer information, images, templates,
and listings are deleted upon cancellation.
Auction Hawk, in its sole
discretion, may terminate this Agreement or suspend or terminate your access to the Site or the
Services immediately without notice for any reason including, without limitation, for your
infringement of the intellectual property rights of others. All provisions of this Agreement that
by their nature should survive termination shall survive termination, including, without limitation,
provisions related to intellectual property, warranty disclaimers, general releases, limitations of
liability, indemnity and the general provisions.
15. Refunds
Auction Hawk will provide a refund totalling one (1) month of service if ALL
of the following conditions are met:
(1) When Auction Hawk Services failed to perform as described on each Services' help page.
(2) When Auction Hawk failed to provide a resolution within 48 hours of your request.
(3) If you were on the 21-day trial.
Any and all claims for refunds or other adjustments to charges on your account must be submitted via
our ticket system. E-mail requests or telephone messages may be not be honored.
16. General
This Agreement is not assignable, transferable or sublicensable by you without Auction Hawk's prior
written consent, and any such conveyance shall be null and void. Auction Hawk may assign this Agreement
in whole or in part. This Agreement shall be governed by and construed in accordance with the
laws of the state of Texas without regard to conflicts of laws provisions thereof. The sole
jurisdiction and venue for actions related to the subject matter hereof shall be the Texas
State and U.S. federal courts having within their jurisdiction the location of Auction Hawk's principal
place of business. In any action or proceeding to enforce rights under this Agreement, the prevailing
party will be entitled to recover costs and attorneys' fees. If any provision of this Agreement is
held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable. Headings are for reference purposes
only and in no way define, limit, construe or describe the scope or extent of such section. Our
failure to act with respect to a breach by you or others does not waive our right to act with
respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and
agreement between us with respect to the subject matter hereof. You agree and acknowledge that you
are not entering into this agreement in reliance on any statements or representations other than
those set forth herein. Should any term or condition be in conflict between this Agreement and any
document incorporated by reference into this Agreement, the terms of this Agreement shall control. |
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