BIDWRANGLER AUCTION SOFTWARE FOR AUCTION COMPANIES - TERMS OF USE

1.  Software.  This BidWrangler Software ("Software") is licensed, not sold, on the terms set forth below.

2.  License.  Subject to the terms below, you have a nonexclusive license to use the Software.

3.  Intellectual Property and other Rights.  BidWrangler remains the sole owner of all right, title, and interest in the Software, including without limitation all patent, trademark, copyright and other intellectual property rights.  BidWrangler reserves all rights to the Software not granted under these Terms of Use.

4.  Your Content.  BidWrangler does not own any of the data or other content that you may use in connection with the Software.

5.  Device-Based Software License.  Subject to your compliance with these terms and the license scope specified in the documentation accompanying the Software, BidWrangler grants you a non-exclusive license to install and use the Software on one server or device for each unit of Software purchased

6.  Distribution from a Server. You may copy an image of the Software onto a computer file server within your Intranet for the purpose of downloading and installing the Software onto computers within the same Intranet. “Intranet” means a private, proprietary computer network you and your authorized employees and contractors can access. Intranet does not include portions of the Internet, network communities open to suppliers, vendors, or service providers, or network communities open to the public (such as membership or subscription-driven groups, associations, and similar organizations).

7.  Restrictions and Requirements.

(a) Proprietary Notices. You must ensure that any permitted copy of the Software that you make contains the same copyright and other proprietary notices that appear on or in the Software.

(b) Restrictions. Unless permitted in these terms, you must not:

(1) modify, port, adapt, or translate the Software;

(2) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software;

(3) use or offer the Software on a service bureau basis;

(4) (i) circumvent technological measures intended to control access to the Software or (ii) develop, distribute, or use with the Software, products that circumvent the technological measures; or

(5) rent, lease, sell, sublicense, assign, or transfer your rights in the Software, or authorize any portion of the Software to be copied onto a device owned by another person or entity.

8.  Misuse. You must not misuse the Software. For example, you must not:

(a) copy, modify, host, sublicense, or resell the Software except as expressly permitted in these Terms of Use;

(b) enable or allow others to use the Software using your account information;

(c) use Software to construct any kind of database other than the database that is part of the Software;

(d) access or attempt to access the Software by any means other than the interface provided with the Software;

(e) circumvent any access or use restrictions put into place to prevent certain uses of the Software;

(f) Share content or engage in behavior that violates anyone’s Intellectual Property Rights (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);

(g) Share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;

(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

 

(i) use the Software to engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;

(j) market or advertise any products or services through the Software other than real and personal property to be sold at auction;

(k) use any data mining or similar data gathering and extraction methods in connection with the Software; or

(l) violate any applicable law through use of the Software.

9.  Your Warranty. By uploading your content to the internet through use of the Software, you agree that you have all necessary licenses and permissions, to use and share your content.

10.  Indemnification. You will indemnify BidWrangler and its members and employees from and against any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your content, your use of the Software, or your violation of these Terms of Use.

11.  Disclaimer of Warranties.  The Software is provided “AS-IS.”  To the maximum extent permitted by law, BidWrangler disclaims all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. BidWrangler makes no commitments about the content within the Software. We further disclaim any warranty that (a) the Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Software will be effective, accurate, or reliable; (c) the quality of the Software will meet your expectations; (d) the Software will be compatible with your other software products or hardware; or that (d) any errors or defects in the Software will be corrected.  We specifically disclaim any liability for any actions resulting from your use of any Software. You may use the Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Software.

12.  Limitation of Liability. BidWrangler is not liable to you or anyone else for any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (a) resulting from loss of use, data, or profits, whether or not foreseeable, (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (c) arising from any other claim arising out of or in connection with your use of the Software. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.  BidWrangler's total liability in any matter arising out of or related to these terms is limited to US $100 or the aggregate amount that you paid for the Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.

13.  Limitations and Exclusions Apply to Maximum Extent Allowed by Law.  The limitations and exclusions set forth in these Terms of use apply to the maximum extent permitted by law.

14.  Termination by You. You may stop using the Software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.

15.  Termination by BidWrangler. BidWrangler may at any time terminate these terms with you if:

(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);

(b) you fail to make the timely payment of fees for the Software, if any;

(c) BidWrangler is required to do so by law (for example, where the provision of the Software to you is, or becomes, unlawful);

(d) BidWrangler elects to discontinue the Software, in whole or in part; or

(e) there has been an extended period of inactivity in your account.

16.  Specific Software Terms Related to Auctions.

(a)  By using the Software to receive bids on auctions, you acknowledge that you have reviewed the Terms of Use that apply to the software application that allows bidders to place bids, and that you are in agreement with all such terms.  You further acknowledge that the Terms of Use for the Software Application may change from time to time, in which case the version that is in effect on the date of any given auction is the version that controls.

(b)  BidWrangler provides no support services for the Software of the Software Application.  BidWrangler  shall not be held responsible for a missed bid or the failure of the Software or the Software Application not to function properly for any reason.  You acknowledge that the Software and the Application may not be operational at any given time for various reasons, including repairs, maintenance, upgrades to the application, and many causes that are not within the control of BidWrangler, including without limitation power failures, defects in third-party equipment, and acts of God.  In the event that the Software or the Application fails to properly operate for any reason during any auction, thus preventing you from receiving a bid, you acknowledge and agree that you are subject to the limitation of liabilities set forth within these Terms of Use.

(c)  BidWrangler is not responsible for any false or inaccurate information that may be provided by a bidder, including without limitation credit card and other payment information.

(d)  You acknowledge that the Software Application cannot function without internet service.  BidWrangler is not liable to you or any bidder in the event that bids cannot be sent or received due to the lack of or loss of internet service at the locations where the bids are being sent or received.

(e)  You are responsible for notifying bidders of Terms and Conditions that apply to any given auction that are in addition to the Terms and Conditions that BidWrangler has in place for bidders use of the Software Application that allows them to place bids.

(f)  Before using the Software for an auction, you are responsible for insuring that the Software Application functions with the Software in a manner that is satisfactory to you for conducting the auction.  If you have any concerns that the Software Application or the Software may not function properly, then you must take such measures as you deem appropriate to allow bidders to participate.  In no event will BidWrangler be responsible for making alternate arrangements for bids to be made or received.

17.  Governing Law.  The terms set forth herein, including without limitation all conditions, limitations, and exclusions, shall be governed by the laws of the Commonwealth of Virginia.

18.  Venue and Jurisdiction.  In the event that redress to a court of law is necessary to resolve any dispute that arises between you and BidWrangler concerning these Terms of Use or your use of the Software, then the proceedings shall be initiated in one of the following courts that has appropriate subject matter jurisdiction:  the General District Court of Rockingham County, Virginia; the Circuit Court of Rockingham County, Virginia, or the United States District Court for the Western District of Virginia, Harrisonburg Division.  With respect to any proceedings that are appropriately brought in one of the foregoing courts, you agree that the court shall have exclusive jurisdiction and venue to adjudicate the dispute.  You consent to venue and jurisdiction and waive all questions and defenses of personal jurisdiction, improper venue, or forum non conveniens for the purpose of any proceedings brought to resolve a dispute described in this section.

19.  Entire Agreement. These terms constitute the entire agreement between you and BidWrangler regarding your use of the Software and the terms supersede any prior agreements between you and BidWrangler relating to the Software.

20.  Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without BidWrangler's written consent. BidWrangler may transfer or assign its rights under these terms to a third party.

21.  Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.

22.  No Waiver. BidWrangler's failure to enforce or exercise any of these terms is not a waiver of that term in the event of a subsequent violation by you.