Vendor SAAS

Last updated: August 31, 2021

SOFTWARE-AS-A-SERVICE AGREEMENT

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:

1. SERVICES

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.

 

3. ACCESS

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.

D. AuctionNinja may suspend User’s access to the Services if User is in violation of this Agreement.

E. In the event that a customer opts-in to share his/her email address with specific User(s) in order to receive communication directly from the User, the User must comply with all federal, state, and local email laws, including but not limited to providing said customer an easy way to opt-out of those communications. AuctionNinja strongly suggests the User utilize professional email software providers such as Mailchimp or Constant Contact in order to maintain compliance with email and privacy laws.

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").

 

7. CONFIDENTIALITY

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.

 

9. INDEMNIFICATION

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.

 

11. PROHIBITED / RESTRICTED ITEMS

AuctionNinja does not choose the merchandise listed on the site. It is the responsibility of the licensee / vendor to know, understand, and adhere to all prevailing federal, state, and local laws and regulations for what may or may not be sold in accordance with the law. 

Licensees/vendors attest that the items that they are listing do not violate any U.S. laws, policies or restrictions on items from countries that have restrictions and regulations in place with the US government. Any violation of this policy may result in immediate removal of the lot in question, censure of the licensee and/or buyer, and/or expulsion from the platform, at the sole discretion of AuctionNinja.

The AuctionNinja audience has the ability to report violations of AuctionNinja’s prohibited items using the Report Item capabilities on the site. Upon submission, the AuctionNinja administrative team will open an investigation into the claim of alleged violation and take any necessary action.

AuctionNinja prohibits/restricts the listing and sale of the following items on the site (for further details/clarification, click here):

Stolen or illegally gained goods; 
illegal items; knock-off / counterfeit goods; 
offensive items; 
alcohol* & tobacco; 
prohibited substances; 
post-Civil War firearms* and/or destructive items; 
hazardous and/or radioactive materials; 
services* and “alternative” currencies; 
misrepresented or stolen Native American/American Indian antiquities, artifacts, arts & crafts; 
motor vehicles without clean titles

 

12. PROOF OF BUSINESS

The User (licensees/vendors) must submit proof of business as follows:

User's Business Name: the trade name used by the User's on AuctionNinja must match the name of the User's legally registered business/trade name or official DBA (Doing Business As) documentation. 

Current Users (licensee): will be granted a 90 day grace period (as of 02/08/2021) to submit acceptable proof of business/trade name (see list below). After that time, licensees not in compliance with the proof-of-business submission may be subject to removal from the site.

New Users (licensee): must submit acceptable proof of business/trade name for approval by AuctionNinja before any sales/auctions may go live upon the Site or up to 30 days from date of registration, whichever occurs first. 

ACCEPTABLE PROOF OF BUSINESS/TRADE NAME
The required identifying information AuctionNinja will accept as proof of business/trade name include:

A) Sole Proprietorships -- name, physical address, date of birth, and state and/or federal taxpayer identification; D.B.A. certificate issued by your city or county; seller's permit; business license; resale license; voided business check; current bank statement with business name as the account holder; State or federal tax identification certificate; or EIN certificate.

B) Other Types of Business Legal Entities (i.e., LLC, partnerships, corporations, etc.) -- business name, business address, taxpayper identification number, and proof of business existence which may include: State or federal tax identification certificate; EIN certificate; D.B.A. certificate; seller's permit; business license; resale license; or articles of organization or incorporation.

USE OF BUSINESS / TRADE NAME:
Users may not use the term "Marketplace" or "the Marketplace" in their business name since the Site currently it as the place for all current and past auction listings. Use of "Marketplace" or "the Marketplace" by Users may cause confusion amongst the Site's bidders and other Users. Users may not use trade names (without a D.B.A or other proof of business name) which may be misleading or confused with other established business and/or trade names in the estates and/or auction industry.

Upon registration, prospective licensees may undergo an approval process by AuctionNinja before their User account is fully activated.

13. AUCTION CLOSING DATES & TIMES

AuctionNinja reserves the right to change or modify the auction closing time of any auctions posted by the User to ensure a positive bidder experience, as well as to prevent system server overloads caused by large clusters of posted sales closing at the same time. AuctionNinja reserves the right do so on a case-by-case basis, as needed.

 

14. NOTICE

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
AuctionNinja, LLC.
1720 Fairfield Avenue
Bridgeport, CT 06605
christie@blackrockgalleries.com

 

15. ASSIGNMENT

AuctionNinja may assign this Agreement to a third party.

 

16. 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. AuctionNinja reserves the right to change or revise these Software-as-a-Service Agreement terms at any time and in its sole discretion. If AuctionNinja make changes to these Terms, it will provide notice of such changes, such as by sending an email notification, providing notice through the Vendor Portal, and/or updating the “Last Updated” date at the beginning of these terms. By continuing to access or use the Services or purchase products or services from AuctionNinja following the posting of any changes to these terms, you confirm your acceptance of the revised terms. AuctionNinja encourages you to review these terms frequently to ensure that you understand the terms and conditions that apply when you access and use the SAAS platform.

 

17. SEVERABILITY

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.

 

18. 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.

 

BY USING THE AUCTIONNINJA SITE, YOU AGREE THAT YOU:

1. HAVE READ AUCTIONNINJA'S (A) THE MARKETPLACE TERMS OF USE AND CONDITIONS AND (B) THE PRIVACY POLICY, AND (C) SOFTWARE-AS-A-SERVICE AGREEMENT;

2. FULLY AND COMPLETELY UNDERSTAND AUCTIONNINJA'S (A) THE MARKETPLACE TERMS OF USE AND CONDITIONS AND (B) THE PRIVACY POLICY, AND (C) SOFTWARE-AS-A-SERVICE AGREEMENT;

3. WHOLLY AND ENTIRELY AGREE WITH AND ACCEPT AUCTIONNINJA'S (A) THE MARKETPLACE TERMS OF USE AND CONDITIONS AND (B) THE PRIVACY POLICY, AND (C) SOFTWARE-AS-A-SERVICE AGREEMENT.