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AuctionSHARK User Agreement
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IMPORTANT:
Please read this User Agreement (the “Agreement”) carefully. The Agreement
governs your use of the AuctionSHARK Website (the “Website”) and the
services and goods provided through or in connection with the Website (collectively,
the “Service”). Each time you use the Service, you acknowledge that
you have read and agree to be bound by the Agreement. If you do not agree to be
bound by the Agreement, you may not use the Service. Consult with an attorney. This
document affects your legal rights.
1. AUCTIONSHARK.COM IS ONLY A VENUE. The Website acts as an
online Marketplace for you to find and transact with other users, Members, buyers,
or sellers (the “Users”) showing products or services on the Service
or otherwise associated with the Service. AuctionSHARK is not a broker, buyer or
seller. AuctionSHARK is not a party to any agreement you may make with regard to
any product. Any information you provide to a user, member, buyer or seller in connection
with your application remains with that party.
a. AuctionSHARK is not responsible or liable for any products,
services, information or other materials displayed, purchased, or obtained by you
from the Website.
b. AuctionSHARK does not endorse, warrant or guarantee the
products or services of any seller, user, member, buyer, or whomever.
c. AuctionSHARK is not liable for any delays, inaccuracies,
errors or omissions with respect to the information or the transmission or delivery
of all or any part thereof, for any damage arising there from or occasioned thereby,
or for the results obtained from the use of the information. You assume the entire
risk as to the accuracy, adequacy, completeness, currency, validity and quality
of any information.
d. Any information on the Website can change without notice.
2. TRANSACTIONS. You may post content or view content posted
by others on the Service. AuctionSHARK does not monitor such content. You may act
as seller or buyer and correspond with, participate in promotions by, and conduct
transactions with the User. AuctionSHARK is not a party to the transactions between
you and the Users of the Website.
The Agreement and any terms of service established by third parties govern all transactions
through the Service. By participating in a transaction through the Service, you
agree and accept the Agreement and any terms of service established by third parties.
AuctionSHARK and any of AuctionSHARK 's Co-branded Partners, Licensees and Affiliates
(collectively "AuctionSHARK Partners") assume no liability, obligation
or responsibility in connection with any transactions between you and the Users
of the Website. If you have a dispute with the Users or any third party, you release
AuctionSHARK (and its agents and employees) and its service providers 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 dispute. If you are a California resident, you waive
California Civil Code 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," as well as any other statute or common law
principle of similar effect in any state.
3. LINKS. AuctionSHARK and AuctionSHARK Partners may provide
links to external websites or resources for your convenience and reference only.
AuctionSHARK and AuctionSHARK Partners do not endorse and are not responsible for
the availability of these external websites or resources or for any content, advertising,
products, or other materials on or available from such external websites or resources.
Your use of and dealings with the owners or operators of these external websites
or resources are at your own risk. You cannot make any claim against AuctionSHARK
or its service providers arising out of your use of external websites or resources.
4. MEMBER REGISTRATION. You must register as a Member with
AuctionSHARK to access certain functions of the Website. You must provide certain
current, complete, and accurate information about yourself (the "Registration
Data") when registering as a Member or updating your Registration Data. You
agree not to misrepresent your identity. You agree to maintain and keep your Registration
Data current and to update the Registration Data as soon as it changes. You are
responsible for maintaining the security of your password. AuctionSHARK and its
service providers are not liable for any loss that you may suffer through the use
of your password by others. You agree to notify AuctionSHARK immediately of any
unauthorized use of your account or of any other breach of security known to you
with respect to the Service. You agree to report any violations of this Agreement
by others to CustomerService@AuctionSHARK.com
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5. OWNERSHIP. All of the material included on the Website,
including but not limited to trademarks, text, graphics, logos and service marks
(collectively, the "Content"), is the property of AuctionSHARK and other
parties. U.S. and international copyright laws protects all Content available on
the Website. Your use of the Service and the Content does not transfer to you any
ownership or other rights in the Service or the Content. You may download Content
displayed on the Website for your personal, noncommercial use only, provided you
also retain all copyright and other proprietary notices contained on the Content.
You may not modify, copy, distribute, transmit, display, publish, sell, license,
or create derivative works using any of the Content for commercial or public purposes.
6.LICENSE.
a. Grant of License. You hereby grant to AuctionSHARK, on
all media, whether now known or hereinafter devised, a non-exclusive, worldwide,
assignable, royalty-free license to: display, publish, use, reproduce, reformat,
compile, archive, distribute, and transmit all materials provided by you to AuctionSHARK
that are not clearly marked as confidential ("Member Content") and display
your name, trademarks and service marks (as used in connection with Member Content).
You may submit Member Content only in accordance with AuctionSHARK’s current
content submission guidelines. AuctionSHARK shall have no obligation to post Member
Content, may remove Member Content, or may change or discontinue the Website at
any time in its sole discretion. AuctionSHARK has no obligation to monitor Member
Content submitted by you or others in connection with the Website. Unless or until
AuctionSHARK specifies another form of delivery of Member Content or another URL
address, you may submit Member Content to AuctionSHARK at
http://www.AuctionShark.com. As the sole consideration for the license and
rights granted to AuctionSHARK under the Agreement, AuctionSHARK will consider posting
Member Content on the Website.
b. Ownership, Copyright and Trademarks. You retain all right,
title and interest (subject to the license granted herein) in and to Member Content
you submit to AuctionSHARK, and represent and warrant that such Member Content and
the license granted herein (i) is factually accurate; (ii) does not violate any
intellectual property rights; (iii) does not contain information which is obscene
or defames, libels or otherwise injures or interferes with the privacy of others;
and (iv) does not require the payment of any kind by AuctionSHARK to others.
7. ACCEPTABLE USE OF THE WEBSITE. Your use of the Service
must be lawful and consistent with the security and reliability of the Service and
the World Wide Web. In addition, the following rules apply to your use of the Service:
a. You certify to AuctionSHARK that you are at least 18 years
of age.
b. You assume full responsibility for the use of the Service
by any minors.
c. Your use of the Service is subject to all applicable local,
state, national and international laws and regulations. Your conduct is subject
to Internet regulations, policies and procedures.
d. You are solely responsible for the content of your transmissions
and any products you may buy or sell through the Service. You acknowledge and agree
that AuctionSHARK does not endorse the actions, the contents of communications,
or the products of the Users.
e. You must obtain and maintain any equipment or ancillary
services needed to connect to, access or otherwise use the Service, including, without
limitation, modems, hardware, software, and long distance and local telephone service.
You are responsible for ensuring that such equipment and ancillary services are
compatible with the Service.
f. You must complete all transactions you agree to complete
in connection with the Service.
g. In your capacity as a buyer or seller, if applicable,
you will be solely responsible for all aspects of transaction order processing and
fulfillment, including but not limited to processing credit card information, authorization
and fraud detection, shipping and handling, buyer/seller support and service inquiries.
h. You must abide by all of the-then current terms of AuctionSHARK’s
Privacy Policy as set forth on the Website and as updated
from time to time by AuctionSHARK in its sole discretion.
i. You shall comply with all applicable domestic and international
laws, statutes, ordinances and regulations regarding your use of our service and
your bidding on, listing, purchase, solicitation of offers to purchase, and sale
of items.
8. PROHIBITED CONDUCT. You must not: (a) use the Service for
any illegal purpose or for the transmission of any material that is unlawful, harassing,
libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar,
obscene, tortious, or otherwise objectionable, or that infringes or may infringe
the intellectual property or other rights of another, including the sale of pornography,
firearms and ammunition, living creatures and parts of endangered species, stocks
and other securities, drugs and drug paraphernalia, human body parts and remains;
(b) directly or indirectly interfere or attempt to interfere with the proper working
of the Website, any account, or any communication or transaction being conducted
on our Website; (c) use any robot, spider, other automatic device, or manual process
to monitor or copy our web pages or the Content without our prior expressed written
permission; (d) take any action which imposes an unreasonable or disproportionately
large load on our infrastructure, (e) use or disclose (to anyone except AuctionSHARK)
any information you obtain about or from other users of the Service, or you obtain
from AuctionSHARK if such information is marked confidential, for any purpose except
fulfillment of orders initiated by the Users or negotiating prices with the Users,
(f) conduct fraud, hide or attempt to hide your identity, represent yourself as
someone else, or manipulate or attempt to manipulate prices, compromise or attempt
to compromise the security of any account, interfere or attempt to interfere with
the proper working of the Service, or (g) send any unsolicited e-mail or advertising
to any known user.
9. PRIVACY POLICY. Please see AuctionSHARK’s Privacy
Policy. By accepting the Agreement, and each time you use the Service, you consent
to AuctionSHARK’s collection, use and disclosure of your information or Registration
Data in accordance with the Privacy Policy without any further notice or any liability
to you or any other person.
10. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE
OF THE SERVICE IS AT YOUR OWN RISK. AuctionSHARK PROVIDES THE SERVICE ON AN "AS
IS" BASIS. AuctionSHARK AND ITS SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES
OF ANY KIND AND NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON-INFRINGEMENT. AuctionSHARK AND ITS SERVICE PROVIDERS MAKE NO WARRANTY THAT
THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR FREE; NOR DO AuctionSHARK OR ITS SERVICE PROVIDERS MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE,
AS TO CONFIDENTIALITY OR PRIVACY OF ANY OF USER'S INFORMATION REGISTRATION DATA,
OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE.
ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE
IS DONE 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 DOWNLOAD OF SUCH MATERIAL
OR DATA. AuctionSHARK AND ITS SERVICE PROVIDERS MAKE NO WARRANTY REGARDING ANY GOODS
OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED
INTO THROUGH THE SERVICE AND ARE NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR
PRIVATE INFORMATION BY MERCHANTS OR OTHER USERS. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY YOU FROM AuctionSHARK OR THROUGH THE SERVICE, SHALL
CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO
YOU.
While AuctionSHARK takes reasonable steps to safeguard and to prevent unauthorized
access to your information and Registration Data, we cannot be responsible for the
acts of those who gain unauthorized access, and we make no warranty, express, implied,
or otherwise, that we will prevent unauthorized access to your private information.
IN NO EVENT SHALL AuctionSHARK BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL,
DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR
IN ANY WAY CONNECTED WITH, A THIRD PARTY'S UNAUTHORIZED ACCESS TO YOUR INFORMATION
OR REGISTRATION DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT,
STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER
AuctionSHARK WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.
11. LIMITATION OF LIABILITY. AuctionSHARK AND ITS SERVICE
PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF
PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES
PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH
THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS
OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR
OTHER INTANGIBLE, EVEN IF AuctionSHARK OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE
ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL AuctionSHARK AND ITS SERVICE
PROVIDERS EVER BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIMS, PROCEEDINGS,
LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, AND COSTS, WHETHER IN CONTRACT, TORT
OR UNDER OTHER FAULT OR WRONGDOING BY AuctionSHARK OR ITS SERVICE PROVIDERS OR ANY
PERSON FOR WHOM EITHER AuctionSHARK OR ITS SERVICE PROVIDERS ARE RESPONSIBLE, IN
AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO AuctionSHARK FOR THE USE OF THE SERVICE
WHICH IS THE SUBJECT OF THE CLAIM.
12. INDEMNIFICATION. You agree to indemnify and hold AuctionSHARK,
its subsidiaries, affiliates, officers and employees, and service providers harmless
from any claim or demand, including reasonable attorneys' fees, made by any third
party due to or arising out of your use of the Service, the violation of this Agreement
by you, or the infringement by you, or other user of the Service using your computer,
of any intellectual property or other right of any person or entity. Even though
prohibited, people may provide information that is offensive, false, harmful, or
deceptive. AuctionSHARK and its Service providers assume no responsibility whatsoever
for such content or actions.
13. RELEASE. YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE
AuctionSHARK AND ITS SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS,
OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS
AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY
AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS,
LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND
KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER
EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SERVICE.
14. TERMINATION. If you breach any provision of this Agreement,
you may no longer use the Service. AuctionSHARK may, in its sole discretion, change,
suspend, or terminate, temporarily or permanently, the Service or any part of it
at any time, for any reason, without notice to you and without liability to you
or any other person. If AuctionSHARK terminates this Agreement for any reason, it
continues to apply and bind you with respect of your prior use of the Service, including
payment of any charges accrued in connection with use of the Service. Upon termination,
AuctionSHARK may remove from the Website and permanently delete and destroy any
Member Content that you or others may have posted or submitted without any prior
notice or liability to you or any other person.
15. DISPUTE RESOLUTION (The "Arbitration Clause").
In the event of a dispute, you and AuctionSHARK agree to submit to binding arbitration.
The arbitration will be held before one arbitrator on an individual basis and not
as a class action. You waive any right you may have to arbitrate a dispute as a
class action. You may select one of the following arbitration organizations and
its applicable rules: the American Arbitration Association, 335 Madison Ave., Floor
10, New York, NY 10017-4605 (http://www.adr.org/),
or JAMS, 410 17 th Street, #1600, Denver, Colorado 80202 (http://www.jamsadr.com/).
You may obtain a copy of the rules of each organization by contacting the organization.
Arbitration shall be conducted by a person licensed to practice law and knowledgeable
in the area of dispute, jointly selected by the parties pursuant to applicable rules.
The arbitrator shall apply governing substantive law in making an award. The arbitration
hearing shall be conducted in Denver, Colorado. All costs associated with the dispute
resolution shall be divided equally between the parties. Each party shall be responsible
for its own attorney, expert and other fees, unless awarded by the arbitrator under
applicable law. The prevailing party in such action shall be entitled to recover
reasonable attorneys’ fees. “Prevailing party” includes, without
limitation, a party who agrees to dismiss an action upon the other party’s
payment of the sums allegedly due or performance of the covenants allegedly breached,
or who obtains substantially the relief sought by it.
The arbitrator's award is final and binding on all parties. The Colorado Arbitration
Act governs all arbitration under this Arbitration Clause. Any court having jurisdiction
may enter judgment on the arbitrator's award. If any part of this Arbitration Clause,
other than waivers of class action rights, is deemed or found to be unenforceable
for any reason, the remainder remains enforceable.
You and AuctionSHARK retain the right to sue in small claims court in Denver, Colorado
for a dispute within that court's jurisdiction, unless such action is transferred,
removed or appealed to a different court. You and AuctionSHARK do not waive the
right to arbitrate by filing suit.
a. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN
YOU AND AuctionSHARK WILL BE RESOLVED BY BINDING ARBITRATION AND NOT IN COURT OR
BY JURY TRIAL.
b. IF A DISPUTE IS ARBITRATED, YOU GIVE UP YOUR RIGHT
TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU
MAY HAVE AGAINST AuctionSHARK INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION
OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS
TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN THE WISCONSIN CONSUMER
ACT, WIS. STATS. § 426.110.
c. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE
GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS AVAILABLE IN COURT MAY
NOT BE AVAILABLE IN ARBITRATION.
16. GENERAL. The Agreement comprises the entire agreement
between you and AuctionSHARK and supersedes all prior agreements regarding the subject
matter contained herein. AuctionSHARK may amend the terms and conditions of this
Agreement (the "amended terms") from time to time. If you continue to
use the Service after the amended terms become effective, you are deemed to have
agreed to be bound by the amended terms. If you do not agree to the amended terms,
then you agree not to use the Service. Your continued use of the Service constitutes
an affirmative: (a) acknowledgment by you of this Agreement and its amended terms;
and (b) agreement by you to abide and be bound by the Agreement and its amended
terms. Except as set forth below, you must make all notices to AuctionSHARK in writing
via conventional mail or e-mail addressed to
CustomerService@AuctionSHARK.com .
If you believe that any content posted on the Website infringes any of your intellectual
property rights or the intellectual property rights of any third party, you must
promptly provide the following notice in writing to AuctionSHARK to
CustomerService@AuctionSHARK.com ; AuctionSHARK may change this address
at any time by posting a notice to the Website: (a) a physical or electronic signature
of a person authorized to act on behalf of the owner of an exclusive right that
is allegedly infringed; (b) identification of the copyright work claimed to have
been infringed, or, if multiple copyrighted works at a single online site are covered
by a single notification, a representative list of such works at that site; (c)
identification of the material that is claimed to be infringing or to be the subject
of infringing activity and that is to be removed or access to which is to be disabled,
and information reasonably sufficient to permit us to locate the material; (d) information
reasonably sufficient to permit us to contact you; (e) a statement that you have
a good faith belief that use of the material in the manner complained of is not
authorized by the copyright owner, its agent or the law; and (f) a statement under
penalty of perjury that the information in the notification is accurate and that
the complaining party is authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed.
The Agreement shall be governed by and construed in accordance with the laws of
the State of Colorado (without regard to conflict of laws provisions thereof). If
any provision(s) of the Agreement is held contrary to law, then such provision(s)
shall be construed, as nearly as possible, to reflect the intentions of the parties
with the other provisions remaining in full force and effect. AuctionSHARK's failure
to exercise or enforce any right or provision of the Agreement shall not constitute
a waiver of such right or provision unless acknowledged and agreed to by AuctionSHARK
in writing. The section titles in the Agreement are used solely for the convenience
of the parties and have no legal or contractual significance.
If you have any questions on the AuctionSHARK User Agreement, you
may contact AuctionSHARK at CustomerService@AuctionSHARK.com
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