TERMS AND CONDITIONS
This Agreement describes the terms and conditions applicable to your use of the Benefit Bidding web site, services and software (collectively, the “Services”). By using the Services, you accept the terms and conditions of this Agreement. If you do not accept these terms and conditions, you are not authorized to use the Benefit Bidding Services.
1. Use of Services. The Services are available only to individuals who can form legally binding contracts under applicable law. Additionally, it is our intent that the Services be used only by non-profit entities or by for-profit entities raising money on behalf of and for the exclusive benefit of a non-profit entity. If you do not qualify under these terms, you may not use the Services. Benefit Bidding, LLC., may refuse its services to anyone at any time, in its sole discretion. As long as you remain in compliance with these Terms of Service, Benefit Bidding grants you the right to use the Services as described herein. You agree that the Services constitute a valuable property and trade secret of Benefit Bidding and that Benefit Bidding retains all intellectual property rights thereto (and to any related materials, information and processes). You agree not to modify, copy, disclose, reverse-engineer, decompile, disassemble or create derivative works from the Services or disclose or provide access to the Services to any unauthorized party. You agree not to remove or modify any of Benefit Bidding’s copyright and other proprietary notices included with the Services. If you violate any of these Terms of Service, your permission to use the Services automatically terminates and you must immediately cease your use of the Services.
2. Your Responsibilities. As Licensee, you shall have sole responsibility for soliciting, obtaining, identifying, pricing and delivering products or services that will be offered for the Auction Event. Benefit Bidding shall bear no responsibility or liability for the quality, description, advertising, or delivery of any Auction Item. Benefit Bidding shall not take possession of the Auction Items and the possession and control of the Auction Items prior to delivery to the winning bidder at the completion of the Auction Event is within your sole discretion and responsibility. YOU FURTHER AGREE, COVENANT, AND WARRANT TO BENEFIT BIDDING THAT YOUR HAVE GOOD AND CLEAN TITLE TO AND THE RIGHT TO SELL ALL AUCTION ITEMS FOR WHICH BIDS ARE SOLICITED USING THE SOFTWARE. YOU FURTHER AGREE, COVENANT, AND WARRANT TO BENEFIT BIDDING THAT ALL AUCTION ITEMS FOR WHICH BIDS ARE SOLICITED USING THE SOFTWARE ARE FREE FROM ALL ENCUMBRANCES OR THAT ANY SUCH ENCUMBRANCES ARE CLEARLY AND UNMISTAKEABLY SET FORTH AND IDENTIFIED FOR YOUR CUSTOMERS AND AUCTION EVENT PARTICIPANTS. You shall have sole responsibility for obtaining and maintaining all permits and licensing in compliance with all rules, regulations and policies including, but not limited to, federal, state, and local legal and regulatory requirements applicable to conducting the Auction Event and/or the sales of any Auction Item including, but not limited to, sales of alcohol, tobacco, and firearms. You agree to defend, indemnify, and hold harmless Benefit Bidding, its directors, officers, affiliates and employees from and against any criminal and/or civil liability resulting from your failures under these terms. You bear responsibility for reviewing the information provided on the Software and verify all Auction Items are accurately listed and Auction Items with reserve pricing are appropriately identified. Benefit Bidding shall not be responsible for any losses due to inaccuracies in the listing of an Auction Item which either resulted from false, misleading, or deficient information provided by you to Benefit Bidding or which you failed to identify in writing to Benefit Bidding after discovering the inaccuracy in the listing. You agree to defend, indemnify, and hold harmless Benefit Bidding, its directors, officers, affiliates and employees from and against any liability or loss resulting from any losses due to inaccuracies in the listing of an Auction Item. You shall have sole responsibility for all publicity, advertising and other communications related to the Auction Event. Benefit Bidding shall have no responsibility or liability for the quality or content of any publicity, advertising, or other communications related to the Auction Event. Notwithstanding the foregoing, in the event that Benefit Bidding in its reasonable discretion determines that any publicity, advertising or other communications related to the Auction Event is false or misleading as to the Auction Event or the Software, Benefit Bidding may deem such false or misleading materials grounds for termination of this Agreement. You shall secure a policy of liability insurance coverage with a minimum policy limits of at least $250,000. You shall provide proof of said policy to Benefit Bidding within thirty (30) calendar days of the commencement of the Term set forth in this Agreement. The failure of you to satisfy your obligations under these terms entitles Benefit Bidding to immediately terminate this Agreement upon the expiration of the time period set forth herein. Benefit Bidding may waive the insurance requirements but any waiver must be in writing and must explicitly state Benefit Bidding’s intent to waive this requirement.
3. Liability for Third Party Failure. You acknowledge that Benefit Bidding may enter into contracts with third parties to provide the Software, as Benefit Bidding deems reasonably necessary from time to time. Benefit Bidding will exert a good faith effort to prevent any loss to you, your Customers and Auction Event Participants resulting from failure of proper performance by those third parties, but you understand and agree that Benefit Bidding is not responsible for failures outside of its reasonable control, including but not limited to any failures of performance by third parties, or failures of servers, telecommunications services, software, computers or other equipment maintained by you, your Customers and Auction Event Participants or third parties, including any Third Party Products.
4. Termination. Benefit Bidding may discontinue Services immediately for fraud, illegal activity, or on a reasonable belief you have violated any warranty or representation made in this Agreement.
5. Indemnification. Benefit Bidding shall indemnify and hold harmless you (including your licensors, service providers, directors, officers, employees, distributors, representatives and independent contractors) against and from any and all claims, demands, actions, suits or proceedings, losses, damages, costs or expenses, including attorneys’ fees, arising from: (1) Benefit Bidding’s material breach of any representation, warranty hereunder; (2) willful misconduct of Benefit Bidding or any of its employees; or (3) any claim by a third party that the Software products provided or contemplated hereunder infringe or misappropriate any patent, copyright, trade secret or other intellectual property rights of such third party. You shall defend, indemnify, and hold harmless Benefit Bidding (including its directors, officers, employees, distributors, affiliates, representatives and independent contractors) against and from any and all claims, demands, actions, suits or proceedings, losses, damages, costs, and/or expenses, including attorneys’ fees, arising from: (i) your material breach of of any representation, warranty, obligation or covenant hereunder; (ii) any negligent action(s) or omission(s), or willful misconduct, of your or any of your employees, agents, and volunteers; (iii) any claim by a third party that your actions, events or communications infringe or misappropriate any patent, copyright, trade secret, trademark or other intellectual property rights of such party; or (iv) your failure to comply with all applicable rules, regulations, and policies including, but not limited to, federal, state, and local legal and regulatory requirements. Your defense and indemnification obligations shall survive the termination of this Agreement.
6. Warranty Disclaimers and Limitation of Liability. Benefit Bidding will utilize its best efforts to maintain acceptable performance of the Subscription Services. Except as expressly set forth herein, BENEFIT BIDDING MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In particular, Benefit Bidding does not warrant that the functions contained in the software will meet your’s, your Customers’ and Auction Event Participants’ requirements. BENEFIT BIDDING IS NOT LIABLE FOR THIRD PARTY PRODUCTS. Benefit Bidding cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet or the telecommunications system. Benefit Bidding will not be liable to you, your Customers or any Auction Event Participant for any violations as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by Benefit Bidding’s fault or negligence. Benefit Bidding will not be responsible for your website or telephone number not being accessible due to circumstances not under Benefit Bidding’s direct control, such as individual user’s own equipment capabilities, limitations, Internet or telecommunications service provider limitations and/or software limitations. Neither Party will be liable to the other Party for any claims alleging incidental, special, indirect, consequential or punitive damages of any character arising out of or in connection with this Agreement, regardless of the legal theory asserted, even if advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. The aggregate and total liability of either Party under this Agreement for any and all claims arising out of this Agreement will be limited to direct damages and will not exceed the fees paid or payable to Benefit Bidding by your under this Agreement except that to the extent your fail to make payment under the terms of this Agreement then your are limited to the fee payable under this Agreement exclusive of any interest which may accrue and be payable to Benefit Bidding. This section will, regardless of any provision contained herein to the contrary, not apply to (i) damages that cannot be limited or excluded by law (in which event the limitation will be the minimum amount required by law); (ii) claims for personal injury or tangible property damage proximately caused by a Party’s negligence or willful acts or omissions; or (iii) either Party’s indemnification obligations.
7. Attorney’s Fees. In the event of any legal proceeding other than arbitration, arising out of or relating to this Agreement, the prevailing Party thereto shall be entitled to reimbursement from the other of all reasonable attorneys’ fees and costs incurred in connection therewith. 8. Jurisdiction. This Agreement shall be deemed to have been entered into in Collin County, Texas, and is governed and construed in accordance with the laws of the State of Texas, exclusive of choice of law and conflict of law provisions thereof. Each Party submits to the exclusive jurisdiction of the federal and state courts serving Collin County, Texas, USA.
9. Cooperation With Authorities. Benefit Bidding reserves the right to cooperate with law enforcement and other authorities in investigating claims of illegal activity, including without limitation, illegal transfer or availability of copyrighted material, trademarks, child pornography, postings or email containing threats of violence or other terrorist or illegal activity.
10. Force Majeure. Neither Party shall be deemed to have breached this Agreement solely as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from any Force Majeure Condition. As used herein, "Force Majeure Condition" means any act of God, action of the elements, fire, accident, riot, strike, work stoppage or other labor disturbance, interruption of power or water, act of war, act of terrorism, invasion, civil commotion, enactment of laws or other casualty or cause, whether similar or dissimilar, arising in a manner beyond the reasonable control of the Party required to perform and without such Party’s negligence or willful misconduct.