Updated April 25, 2020
Registration and Privacy
To register with us and use the Site or Application, we require that you provide certain information, including your name, email address, username and password (collectively, your “Account Information”). If you provide any information that is untrue, inaccurate, not current or incomplete, or if you impersonate someone else, or we have reasonable grounds to suspect so, we may terminate your account and refuse any and all current or future use of the Site and Application by you.
You are solely responsible for maintaining the confidentiality of your user name and password. You must notify us immediately of any unauthorized use of your Account Information. We will not be responsible for any losses arising out of the unauthorized use of your account and you will indemnify and hold us harmless from and against any losses, damages, claims or liabilities relating to the improper, unauthorized or illegal uses of your account.
If you are a user accessing Services from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the Services, which is governed by U.S. law, you are transferring your personal information to the United States and you consent to such transfer.
Use and Restrictions
All text, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork and computer code, including but not limited to design, structure, “look and feel” and arrangement of the content available on the Site and Application (collectively, “Content”) is owned, controlled or licensed by or to us, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Links to Other Sites
The Application and Site contain links to other independent third-party web sites, and we provide links to third-party websites as part of the Services (in all cases “Linked Sites”). These Linked Sites are provided solely as a convenience to you and based upon your Account Information or the Content you elect to view. Such Linked Sites are not under our control, and we are not responsible for and do not endorse the content of such Linked Sites, including any products, information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites. Some of the content served by us will be from affiliated merchant sites, and sales through these affiliated sites may generate a commission payable to us. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of third party web sites, including, without limitation, Linked Sites and websites linking to the Application and/or Site. You should review applicable terms and policies, including privacy and data gathering practices, of third party web sites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You may not use the Application, Site or Services for illegal or unlawful or malicious activities or for activities that we deem improper for any reason whatsoever in our sole judgment. While using the Application, Site and Services, you may not: (a) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, intimidate, bully, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another user’s account without permission, or solicit another user’s login information; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Application, Site or Services; (f) “frame” or “mirror” any portion of the Application, Site or Services; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Application, Site or Services; (h) harvest or collect information about or from other users of the Application, Site or Services; (i) use the Application, Site or Services for any illegal activity; (j) probe, scan or test the vulnerability of the Application or Site, nor breach the security or authentication measures on the Application or Site or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Application or Site, such as a denial of service attack; (k) access or use any portion of the Content or Services if you are a direct or indirect competitor of the Company, or provide, disclose or transmit any portion of the Content to any direct or indirect competitor of the Company; (l) use or distribute any Content to directly or indirectly create or contribute to the development of any database or product; or (m) facilitate or encourage any violations of this Section.
Warranties, Disclaimers and Limitations of Liability
Disclaimer of Warranties
ALTHOUGH WE MAKE EFFORTS TO PROVIDE AN ACCURATE APPLICATION AND SITE, THE APPLICATION, SITE AND ALL PARTS THEREOF ARE PROVIDED “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WITH RESPECT TO THE APPLICATION, THE SITE, THE SERVICES, AND ANY INFORMATION OR DATA WE PROVIDE TO YOU, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (4) THAT ACCESS TO OR USE OF THE APPLICATION, SITE, CONTENT OR SERVCIES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE APPLICATION, SITE AND SERVICES IS AT YOUR OWN RISK.
Please note that we do not have control over, and cannot guarantee the existence, quality, safety or legality of any item offered by the Auction House, the truth or accuracy of Auction House representations, or the ability of Auction House to sell any item.
Your reliance upon the information available on the Application and/or Site or through use of the Services and your interactions with third parties identified through the Services is SOLELY AT YOUR OWN RISK. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet, mobile devices and electronic communications and mail delivery systems. We are not responsible for any delays, delivery failures or other damages resulting from such problems. We reserve the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Application, Site and Services, or any portion thereof; and (2) to interrupt the operation of the Application, the Site and/or provision of Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes, or to comply with laws.
Some jurisdictions do not allow the above disclaimer of warranties, so such disclaimers might not apply to you.
Limitations of Liability
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, APPLICATION OR THEIR RESPECTIVE CONTENT, WITH THE DELAY OR INABILITY TO ACCESS OR USE THE SITE, THE APPLICATION OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY CONTENT, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE OR OBTAINED THROUGH THE SITE, THE APPLICATION OR THEIR RESPECTIVE CONTENT, OR OTHERWISE ARISING OUT OF THE USE OR ACCESS OF THE SITE, USE OF THE APPLICATION OR USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE OR THE APPLICATION, AND ALL OTHER USE OF THE SITE OR APPLICATION, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM.
THE AGGREGATE AND CUMULATIVE LIABILITY OF COMPANY TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THESE TEMRS OF USE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
Some jurisdictions do not allow the above limitation of liability and/or exclusion of damages, so such limitations and exclusions might not apply to you.
If you have a dispute with the Auction House, you release Company (and its affiliates and subsidiaries, and its and their respective officers, directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
Consent to Electronic Notice
By using the Site, the Application or the Services, you agree that Company may communicate with you electronically regarding administrative, security and other issues relating to your use of the Site, Application and Services. You agree that any notices, agreements, disclosures or other communications that Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights.
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the Commonwealth of Massachusetts, United States, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute between you and Company.
Binding Bilateral Arbitration and Applicable Law (Continued from Section titled “Binding Arbitration” above)
Agreement to Arbitrate
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. YOU THEREFORE AGREE TO WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO FILE, COMMENCE OR PARTICIPATE IN ANY CLASS ACTION OR CLASS ARBITRATION AGAINST COMPANY OR ANY PUTATIVE CLASS ACTION OR CLASS ARBITRATION AGAINST COMPANY. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any limitations in this Agreement as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Company’s right to appeal the court’s decision. All other claims will be arbitrated.
Notwithstanding any contrary provision in the FAA or the applicable AAA rules, all issues in a Dispute are for the arbitrator to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable) (“AAA Rules”), as modified by this Agreement to Arbitrate. The rules promulgated by the AAA concerning class arbitration shall not apply. The AAA Rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to Company at the Notice address below. You acknowledge that you have access to the AAA Rules and consent to them and that you can obtain a printed copy of the AAA Rules from Company or AAA. In the event of any conflict between the AAA Rules and this Agreement to Arbitrate, this Agreement to Arbitrate shall control and the arbitrator is bound by the terms of this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute that identifies your name, contact information, a description of the dispute, and your requested relief (“Notice”). The Notice to Company should be sent to Auction Mobility, attn. President, 192 South St., Suite 600, Boston, Massachusetts 02111, United States. Company will send any Notice to you to the physical address we have on file associated with your Company account, with a copy to your email address on file; it is your responsibility to keep your physical address and email address up to date.
If you and Company are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Company may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Company at Auction Mobility, attn. President, 192 South St., Suite 600, Boston, Massachusetts 02111, United States. If Company initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Company account, with a copy to your email address on file. Any settlement offer made by you or Company shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in Boston, Massachusetts, United States.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Company user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
The arbitrator shall have the authority to compel adequate discovery for the resolution of the Dispute and to award such relief as would otherwise be permitted by law; provided, however, that in no event shall the right to discovery granted to the parties exceed 25 interrogatories, 35 documents requests, 10 third-party subpoenas, and three depositions (of not more than seven hours each), including third-party depositions, per side. The parties may submit such pre-arbitration and post-arbitration briefs (including briefs during arbitration) as they choose, provided that no party shall submit briefing exceeding a reasonable page limitation to be set by the arbitrator. If any party submits a motion, the arbitrator shall consider the motion and either deny it or request opposition briefing by the non-moving party, which shall not be required until requested by the arbitrator. The arbitrator may not grant a motion without allowing the opposing party an opportunity to oppose. The total length of the arbitration hearings on the merits shall not exceed 25 hours of hearing time, to be divided equally between the opposing sides. All discovery shall be completed no later than one hundred 120 days after appointment of the arbitrator. The hearing shall be concluded no later than 180 days after appointment of the arbitrator, unless the arbitrator’s schedule requires a later hearing. The arbitrator may only extend these limits at the request of a party when the arbitrator finds exceptional cause for the extension. The parties may extend these limits upon their agreement.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate.
With the exception of any of the provisions in Section 1 above (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
Your Opt-Out Notice must include your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Company account(s) to which the opt-out applies. You must sign and date the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Company.
This Agreement to Arbitrate shall survive termination of this Agreement.
Judicial Forum for Legal Disputes
Unless you and Company agree otherwise, if the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Company must be resolved exclusively by a state or federal court located in Boston, Massachusetts, United States. You and Company agree to submit to the personal jurisdiction of the courts located within Boston, Massachusetts, United States for the purpose of litigating all such claims or disputes.
Term and Termination
Questions? Contact us at firstname.lastname@example.org.