This Subscription Agreement (this "Agreement") is by and between AUCTION NINJA, LLC ("AuctionNinja"), a Connecticut limited liability company and the vendor/subscriber ("User") and is effective upon its complete execution and payment of the Setup Fee (the "Effective Date").
The parties agree as follows:
AuctionNinja provides auctioneers with access on a subscription basis to its hosted AuctionNinja Platform, which consists of cloud hosted software-as-a-service applications and an online marketplace (the "Services"). The Services facilitate sellers' interaction with participating bidders. AuctionNinja agrees to provide to User, and User agrees to purchase, access on a subscription basis to the Services. Access to the Services include integration with User's domain, unlimited auctions and bidding, hosting, free support and integration of banking system with authorize.net and stripe.com.
2. FEES & PAYMENT
User agrees to pay AuctionNinja a $250 non-refundable set up fee ("Setup Fee") due upon the signing of this Agreement, a monthly (or part month) fee of $19.19, which will be debited from a credit/debit card on file in the first 10 days of each month, and 2% of the total paid hammer prices of each auction payable by auto-debit within the first 10 days of the following month after the conclusion of each auction. User authorizes AuctionNinja to charge the User's credit/debit card on file as outlined above.
User may charge a "Buyers Premium" on the hammer price of their sales (payable by the respective winning bidder) which will go directly to the User. The buyers premium is not subject to commission fees by AuctionNinja.
All fees are exclusive of any applicable sales, use, excise, value-added taxes, services, consumption and similar transaction taxes imposed by any national, state, provincial or local government taxing authority on the transactions contemplated by this Agreement.
Notwithstanding Section 1, use of any other financial institutions and/or banking platforms other than authorize.net or stripe.com may result in additional charges as determined the sole discretion of the AuctionNinja, and may not be supported. AuctionNinja will furnish an estimate for these services if requested by the User and agreed upon by AuctionNinja.
A. AuctionNinja shall make the Services available to User during the term of this Agreement.
B. AuctionNinja hereby grants to User a non-transferable, non-sub-licensable, non-exclusive, worldwide right during the term of this Agreement to access and use the Services from any location within the United States, provided that such access and use is on behalf of User.
C. User is prohibited from transferring the Services except to a subsidiary or affiliated entity.
4. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and continue until terminated by either party by such terminating party providing ten (10) days advance written notice to the other party. AuctionNinja may terminate this Agreement immediately if User is in default of any of the terms of this Agreement.
5. AUCTIONNINJA OBLIGATIONS
User shall not: (i) make the Services available to anyone; (ii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material; (iii) use the Services to store or transmit material in violation of third party privacy rights; (iv) use the Services to store or transmit malicious software; (v) interfere with or disrupt the integrity or performance of the Services; (vi) attempt to gain unauthorized access to the Services; (vii) decompile, disassemble, reverse engineer, reverse assemble, or otherwise prepare derivative works of, modify, or attempt to derive any source code or algorithms of the AuctionNinja Platform except to the extent permitted by applicable law; (viii) rent, lease, loan, sell, sublicense, distribute or otherwise transfer any of the access rights granted to User in this Agreement, except as expressly authorized herein; or (ix) remove, circumvent, disable, damage or otherwise interfere with any security-related features of the AuctionNinja Platform or features that enforce limitations on the use of the AuctionNinja Platform.
6. PROPERTY RIGHTS AND OWNERSHIP
A. Ownership. AuctionNinja and the User acknowledge and agree that (i) AuctionNinja owns all right, title, and interest in and to the AuctionNinja Platform, any modifications or customizations thereof, and any and all intellectual property or proprietary rights anywhere in the world, irrespective of whether such rights arise under U.S. or foreign intellectual property, unfair competition or trade secret laws (collectively, "Proprietary Rights"), in or to any of the foregoing and (ii) subject to AuctionNinja's underlying ownership of the AuctionNinja Platform and the Proprietary Rights therein and thereto, the User owns all right, title, and interest in and to the User Material.
B. Feedback. AuctionNinja may freely use and exploit without any restrictions all feedback or suggestions conveyed to AuctionNinja by User and User's personnel and agents in connection with the AuctionNinja Platform.
C. User Material. Subject to the terms and conditions of this Agreement, User hereby grants to AuctionNinja a nonexclusive, worldwide and royalty-free right and license to store, reproduce, adopt, modify, display, perform, transmit and use all information, data, text, images, audio, video and audiovisual material, trademarks, marketing materials, and other materials uploaded to the AuctionNinja Platform or otherwise provided by or on behalf of the User or its agents in connection with the AuctionNinja Platform, and any updates, modifications or derivatives thereof (collectively, the "User Material").
A. Definition. "Confidential Information" means (i) any information disclosed (directly or indirectly) by one party ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment), and or is (ii) information, including that communicated orally, which is otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself.
B. Exceptions. Confidential Information shall not, however, include the User Material, or any information that: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by Disclosing Party to Receiving Party through no wrongful action or inaction of Receiving Party; (iii) is in the rightful possession of Receiving Party without confidentiality obligations at the time of disclosure by Disclosing Party to Receiving Party as shown by Receiving Party's then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by Receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party's obligations of confidentiality; or (v) is independently developed by Receiving Party without use of or reference to Disclosing Party's Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
C. Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees or subcontractors other than the employees, subcontractors or authorized users who use such information solely in the performance of services for or on behalf of such party.
D. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid unauthorized disclosure or use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees, consultants or authorized users who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement substantially as protective of the other party's Confidential Information as the provisions hereof, prior to any disclosure of Confidential Information to such persons. Each party agrees that the unauthorized use or disclosure of the other party's Confidential Information may cause irreparable injury to the party concerned. Accordingly, both parties agree that the remedy at law for any breach of this Section 7 may be inadequate and that the party suffering from the unauthorized use or disclosure shall be entitled to ex parte injunctive relief to prevent any such breach or the threat of such a breach.
E. Compelled Disclosure. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.
F. Return of Confidential Information. Upon the termination of this Agreement, the Receiving Party shall deliver to the Disclosing Party or destroy all of the Disclosing Party's Confidential Information obtained hereunder, and all copies thereof, that the Receiving Party may have in its possession or control.
8. WARRANTY DISCLAIMER
User accepts the Services as-is. AuctionNinja makes no warranties as to the function or use of the Services, whether express, implied or statutory, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. The entire risk as to the quality and performance of the Services is with User. AuctionNinja does not warrant that the Software will meet User's requirements or that the operation of the Software will be uninterrupted or error free.
A. By AUCTIONNINJA. Subject to Section 9.C, AuctionNinja shall, at its own expense, defend or at its option settle any third party claim (except for a claim which gives rise to the User's indemnification obligations as set forth in Section 9.b) brought against the User to the extent the third party claim alleges the use of the AuctionNinja Platform by the User infringes any copyright, trade secret, patent, or trademark of any third party. The foregoing provisions of this Section 9.a states the sole and exclusive liability of AUCTIONNINJA, and the sole and exclusive remedy of the User with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
B. By User. AuctionNinja shall have no liability for, and the User shall, at its own expense, defend or at its option settle any claims by a third party or governmental authority arising out of User's use of the AuctionNinja platform.
C. Procedures. Each party will notify the other party promptly upon learning of a claim, demand, suit, or proceeding that might give rise to an indemnified loss, and the potentially indemnifying party may control defense and settlement thereof provided it does so diligently, in good faith, and using reasonably experienced counsel with expertise in the relevant field. The potentially indemnified party will reasonably cooperate in such defense and/or settlement at the potentially indemnifying party's request and expense and may participate at its own expense using its own counsel.
10. LIMITATION OF LIABILITY
AuctionNinja's liability to User under this Agreement shall be limited to the amounts actually paid hereunder by User to AuctionNinja for the twelve consecutive month period immediately preceding the date of the subject occurrence. In no event shall AuctionNinja be liable for indirect, incidental, special or consequential damages, including loss of use, loss of profits or interruption of business.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
If to AuctionNinja:
Christie Spooner, Member
1720 Fairfield Avenue
Bridgeport, CT 06605
AuctionNinja may assign this Agreement to a third party.
13. ENTIRE AGREEMENT & AMENDMENT
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof, and is the complete and exclusive statement of the rights and liabilities of the parties with regards to the subject matter herein. This Agreement may be modified only by a further writing that is duly executed by both parties.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
15. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the State of Connecticut and the parties consent to exclusive jurisdiction and venue of the state and federal courts in the State of Connecticut, County of Fairfield.
Welcome to AuctionNinja. This agreement describes the terms and conditions by which AuctionNinja offers you, "the User," access to AuctionNinja's services. Herein after the term, "you," shall mean the User whether a Buyer or Seller (Vendor and/or Auction House). By using the services on the AuctionNinja website (the "Site"), you are agreeing to the following terms (collectively, the "User Agreement") with AuctionNinja, Inc., the Owner and Operator of the Site. If you have any questions, please use the Contact AuctionNinja form to send AuctionNinja your question to the appropriate party.
Use of the Site's services and features are strictly limited to those who are at least 18 years old in age and can form legally binding contracts under applicable law. Further, services and features of the Site are not available to temporarily or indefinitely suspended AuctionNinja members. If you do not meet these requirements, do not use the Site's services and features.
1. USE OF SITE
AuctionNinja is an online venue for Sellers to post auctions containing items for sale, and Buyers to browse these listings and opt to bid on and buy these items. AuctionNinja facilitates the selling and buying of items, but is not involved in the actual transactions between Sellers and Buyers. As such, AuctionNinja has no control over the authenticity, quality, safety and legality of the items; the accuracy and truth of the item descriptions; and the abilities and capabilities of the Sellers and Buyers to sell and buy items. AuctionNinja cannot ensure that the Seller or Buyer will satisfactorily complete a transaction.
You must also authorize AuctionNinja to charge the credit or debit card you have entered on this site for the hammer price of an item which you were the high bidder plus the buyer's premium and all applicable sales tax. (Note: buyer's premiums may vary from one SELLER to another. Please review the terms of sale for each SELLER before bidding.) Your card will be charged within 24 hours of auction end. Failure to keep valid credit card information on file will result in your use of the site being terminated.
To initiate your ability to bid with AuctionNinja, an initial $1.00 pre-authorization transaction will appear on your statement. This pending transaction will not settle and will drop off after 5 -7 business days depending on your card's issuing bank (American Express & Discover may take longer).
Periodically, AuctionNinja may perform re-authorizations on your credit card to ensure that your card is still valid or in "good standing." Hereto, a $1.00 pre-authorization transaction will appear on your statement. This pending transaction will not settle and will drop off after 5 -7 business days depending on your card's issuing bank (American Express & Discover may take longer).
You certify that you are an authorized user of this credit card and that you will not dispute the purchase payments with your credit card company provided the transactions correspond to the terms indicated in this authorization outline. There are no options for payments by cash or check on AuctionNinja.
2. MEMBERSHIP ELIGIBILITY
The Site is available to members who are 18 years and older and who have not been suspended or removed by AuctionNinja for any reason. By becoming a member you represent that you are of legal age. As a member, you agree to provide true accurate, current and complete information about yourself as prompted by the Site's registration forms. In addition, as a member, you agree and acknowledge that you will maintain valid credit card info within your membership profile so long as you maintain an account with AuctionNinja.
User Ban Policy: Users who violate AuctionNinja's policy may be banned from the AuctionNinja site for a period of time, or indefinitely and permanently, depending on the severity and nature of the violation. Furthermore, Users who violate AuctionNinja's policy may also be subject to other penalties, fines and/or punishment imposed by regulatory and enforcement agency(ies) in accordance with applicable law.
3. BUYER'S CONTRACT
Bids placed on the AuctionNinja website are a binding contract and you are responsible for paying all amounts due to AuctionNinja including sale price, buyer's premium and all applicable taxes (rules for applicable taxes vary by state). Please do not bid if you are unable to pay and take possession of the items in the specified time periods for each auction, sale or event. All sales are final. No returns, credits or exchanges.
4. SELLER'S CONTRACT
5. ITEM DESCRIPTIONS
All items are sold as-is, where-is. While AuctionNinja Sellers are expected to do their best to list any damage, repairs or restorations, the absence of these descriptions or conditions must not be taken to imply that the lot is in perfect condition. Most of the items sold by Sellers on the AuctionNinja platform are antique, vintage or used. You should expect signs of wear consistent with age. AuctionNinja Sellers often offer preview inspections for the sole purpose of allowing Buyers the opportunity for personal inspection before placing bids, but are not required to do so. Condition reports may also be available, depending on the Seller. If you have any doubts or questions about any lots being offered by Sellers, be sure to reach out directly to the AuctionNinja Seller BEFORE bidding. Seller contact information may be found on the individual auction landing page. All sales are final. No returns, credits or exchanges.
6. BUYER'S PREMIUM
A buyer's premium (typically 18%, but may vary from one Seller to another) will be added to the hammer price in all auctions and will be charged along with the hammer prices and applicable sales tax to the credit or debit card you have on file with AuctionNinja within 24 hours of the auction end. Please review the terms of sale for each Seller before bidding.
7. SALES TAX
All sales are subject to appropriate sales tax laws in the states where the sale is being held. Tax exempt Buyers must provide the appropriate state sales tax exemption certificate prior to the end of the sale. Upon receipt of such information by AuctionNinja, your future purchases will not be taxed. Tax resale forms can be submitted in your membership profile. Your profile name and address must be the same as your resale certificate.
8. NO BID RETRACTION OR MODIFICATION; NO AUCTIONNINJA INVOLVEMENTT
Buyers must be very careful in placing bids, as once their amount is entered, it is NOT retractable. Buyers may increase their maximum bids at anytime. Any subsequent coordination for adjustment, cancellation, refund, etc. needs to be done directly between the Seller and Buyer, independent, separate and without involvement of AuctionNinja. AuctionNinja is NOT responsible for-and, will NOT perform-any corrective actions or adjustments.
By entering a bid amount in an auction and clicking on "Submit Bid," the Buyer commits to buying the listed item from the Seller if they end up becoming the winning bidder. Furthermore, AuctionNinja does NOT offer any sort or type of Buyer or Seller protection plans, programs, warranties and/or guarantees. AuctionNinja also does NOT offer any sort or type of price matching or best price programs and/or guarantees.
9. RETENTION OF CREDIT CARD INFORMATION
By providing your credit card information to AuctionNinja, you authorize AuctionNinja to charge your credit card for the purchase amount of any successful bid plus the buyer's premium and any applicable taxes. Your card will be charged within 24 hours of auction end. Failure to keep valid credit card information on file will result in your use of the site being terminated. To initiate your ability to bid with AuctionNinja, an initial $1.00 pre-authorization transaction will appear on your statement. This pending transaction will not settle and will drop off after 5 -7 business days, depending on your card's issuing bank (American Express & Discover may take longer).
You certify that you are an authorized user of this credit card and that you will not dispute the purchase payments with your credit card company provided the transactions correspond to the terms indicated in this authorization outline.
All credit card information entered on AuctionNinja is encrypted and processed by a reputable third party processor. AuctionNinja does not store your credit card information for security purposes which is held by reputable third party processors.
AuctionNinja's automatic debit system prohibits new card details to be retroactively applied to prior purchases. It is the sole responsibility of the user to ensure that their credit card on file is current and accurate. If your card is declined for any reason (i.e., expired, new card issued, lack of funds, etc.), you are responsible for contacting the Seller directly to render payment directly to the Seller and then update your card on AuctionNinja for future purchases.
UPDATING YOUR CARD: Buyers may update their credit cards at any time. Simply:
Log in using your USER NAME and PASSWORD
Click on “My Dashboard,”
Click on “Account”
Click on “Manage Payment Options.”
Click “+ Add credit/debit card” (appearing in red next to the page header)
10. PICK-UP & SHIPPING
Successful Buyers must pick up their items at the designated sale location within the assigned time frame as stated in the sale details page. If you have any doubts about your ability to pick-up your auction winnings and the designated sale location during the designated times, DO NOT BID.
If after winning an item you determine you are unable to pick up your items during the scheduled removal times and dates, you must contact the individual AuctionNinja Seller within 24 hours prior of the scheduled pick-up date and the Seller will determine if alternate arrangements can be made. Arrangements will be at the sole discretion of the AuctionNinja Seller and may be subject to additional transport, labor and/or storage fees - payable directly to the Seller.
AuctionNinja is strictly a venue to facilitate successful transactions between Site Users (Buyers and Sellers), and currently does NOT provide any direct or physical shipping/delivery capability for Users. Buyers are strongly urged to completely read through and fully understand the Seller's shipping/delivery policy and/or terms of sale stated within the auction listing description, and contact the Seller directly for any further clarity and confirmation if anything is uncertain, ambiguous or unclear.
As a Seller, you are entirely responsible that the Buyer successfully and satisfactorily receives what they pay for. Each Seller is strongly recommended to develop and explicitly describe their shipping/delivery/distribution/pick-up policy on each and every one of their listings, along with available shipping/delivery carriers, options and service with associated costs, if applicable.
11. FORFEITURE OF ITEMS
Any items not paid and / or not picked up during the specified pick up time in accordance with the Seller's Terms of Sale will be forfeited by the Buyer. AuctionNinja Sellers, at their sole discretion, may re-offer the items or donate them to a charity of the Seller's choosing. AuctionNinja reserves the right to report your account to collections for the combined total of the original invoice amount and any moving or disposal charges. Your membership with AuctionNinja will be revoked unless past due invoices and any additional charges are paid in full.
12. PROHIBITED USE
13. LIMITATION OF LIABILITY, RELEASE & INDEMNITY
You will not hold AuctionNinja responsible for the actions or inactions of site Users, contents of their listings, items they list, nor their destruction of alleged fake and counterfeit items. You acknowledge that AuctionNinja is not a traditional "auctioneer" or "auction house." Instead, AuctionNinja is just a venue or bidding platform, which allows Sellers and Buyers the convenience to offer, sell, and buy practically anything, at anytime, from anywhere, in a variety of pricing formats and locations, such as, online auctions and online store formats. AuctionNinja is not involved in the actual transaction between site Users-the Buyers and the Sellers.
AuctionNinja has no control over and does NOT guarantee the quality, safety or legality of items advertised, the truth or accuracy of Users' content or listings, the ability of the Sellers to sell items, the ability of the Buyers to pay for items, or that the Buyer or the Seller will actually complete a transaction.
AuctionNinja does NOT transfer legal ownership of items from the Seller to the Buyer. Uniform Commercial Code (UCC) § 2-401(2) applies to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. Accordingly, to the extent legally permitted, AuctionNinja excludes all implied warranties, terms and conditions. AuctionNinja is NOT liable for any loss of money, goodwill or reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of your use of or your inability to use AuctionNinja's Site, services, and tools.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Regardless of the previous paragraphs, if AuctionNinja is found to be liable, AuctionNinja's liability to you or to any third party is limited to a maximum of the total fee, if any, paid to AuctionNinja only by you for the specific transaction(s) involved with the Buyer and the Seller. AuctionNinja is NOT responsible for any other costs, such as; but, not limited to, shipping, restocking, legal or indirect fees involved in and/or resulting from the specific transaction(s).
14. PRIVACY AND NO AGENCY
EXTENDED BIDDING ("SOFT CLOSE")
AuctionNinja's online auction system features extended bidding (a.k.a. "soft close"). This feature is built into the coding of AuctionNinja and is fully automated. It is the closest way to mimic the actions of an auctioneer (during a live auction) in an online/automated format. To illustrate, during a live auction the auctioneer typically won't hammer at the first bid. The auctioneer gives bidders opportunities to increase their bids until he/she determines there is no further interest in the lot before hammering to the winning bidder. Therefore, AuctionNinja's automated system will automatically extend the closing time of a lot (auction item) whenever a new bid is placed within the last five minutes of its scheduled closing to allow other interested bidders an opportunity to increase their bid (if they wish to do so). This may occur multiple times on any given lot depending on bidder interest. Once all interest and bidding in a lot ceases, the clock will run out and the lot will close.
BY USING THE AUCTIONNINJA SITE, YOU AGREE THAT YOU: