Handbid Auction Services Agrement
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This Auction Services Agreement (“ASA”) is entered into between Handbid, Inc. (“Handbid”) and the Customer identified in the associated Order Form (“Customer”). The “Effective Date” of this ASA is the date of the mutually agreed upon order form into which this Agreement is incorporated by reference (“Order Form”). The parties agree as follows:
1.1. Use of Services. Handbid shall furnish services specified in the Order Form referencing and incorporating this Agreement (“Services”). The ASA shall be signed by authorized representatives of Handbid and Customer. This ASA and the associated Order Form constitute the entire agreement between Customer and Handbid (the “Agreement”). In the event of a conflict between the terms of this ASA and the Order Form, the terms of the Order Form will control.
1.2. Limited License. As long as Customer remains in compliance with the terms and provisions set forth in this Agreement and the ASA, Handbid shall provide to the Customer (a) a non-exclusive, non-sublicenseable, non-transferable subscription to access and use Handbid’s hosted auction and mobile services described in the associated Order Form for Customer’s internal business purposes (“Handbid Service”), and (b) the general field expertise necessary to enable Handbid to perform the Services described in this Agreement and the applicable Order Forms. The Customer shall, in connection with the performance by Handbid of the Services hereunder, obtain all permits, licenses, certificates or other administrative or regulatory authorizations as may be required by any governmental authority from time to time or as may be necessary or incident to Handbid’s performance of its obligations under this Agreement. Handbid shall use all reasonable efforts to assist the Customer in obtaining such authorizations.
1.3. Handbid’s Acceptable Use Policy (“AUP”) governs the general policies and procedures for use of the Services. The AUP is incorporated herein by reference. The AUP can be found at http://www.handbid.com/aup and its terms are subject to this Agreement and may be updated by Handbid from time-to-time. THE CUSTOMER SHOULD CAREFULLY READ THE AUP. BY USING THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS THERETO PROVIDED TO CUSTOMER. HANDBID RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT FOR ANY VIOLATION OF THE AUP, THE ASA OR THIS AGREEMENT. Handbid reserves the right to terminate any auction or sale of any item in the event Customer breaches the AUP, or which Handbid believes in its sole discretion is not authentic or accurate, or where authenticity is substantially not as described in the listing. Handbid will have no liability to the Customer or other person or entity (including any bidder) in any auction terminated by Handbid.
1.4. End User License Agreement. The End User License Agreement found at http://www.handbid.com/eula (the “EULA”) governs the use by the Customer and other third parties of the Handbid Auction Client Application (e.g. Customer’s bidders and guests). The Handbid Auction Client Application constitutes the Handbid mobile apps from the Apple iTunes App Store and Google Play Store. Anyone who downloads a Handbid App for their device, including the Customer will be subject to this EULA. Some terms of the EULA are set by Apple and Google and cannot be modified. THE CUSTOMER SHOULD CAREFULLY READ THE EULA. BY USING THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THE EULA AND ANY MODIFICATIONS THERETO PROVIDED TO CUSTOMER. HANDBID RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT FOR ANY VIOLATION OF THE EULA, THE ASA OR THIS AGREEMENT.
1.6. Material and Product Requirements. Unless Handbid has agreed otherwise in a separate agreement, the Customer must ensure that all material and data placed on Handbid’s equipment is in a condition that is “server-ready”, which is in a form requiring no additional manipulation by Handbid (e.g. images are in the correct format and dimensions, etc.) Handbid will make no effort to validate any of this information for content, correctness or usability. If the Customer’s material is not “server-ready”, Handbid has the option at any time to reject this material or offer to modify the material to be “server-ready” at an additional charge to the Customer. Handbid will notify the Customer of its refusal of the material or the cost to modify the material and afford the Customer an opportunity to modify the material or agree to the additional charges requested by Handbid as soon as practicable after it learns of the same. Use of the Services requires a certain level of knowledge in the use of WIFI networks, image manipulation, web browsers, Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of Handbid’s services. The Customer must have the necessary knowledge to upload content to a Web site, manipulate images (format and dimensions), configure certain devices and test for WIFI network connectivity. It is not Handbid’s responsibility to provide this knowledge or customer support outside of the Services agreed to by the Customer and Handbid.
1.7. Access. In order to use the Services, the Customer and its customers and clients need the equipment necessary to connect to the Internet connection necessary to access it, including wireless routers and mobile devices compatible with the Services. The Customer (or its customers or clients, as the case may be) is responsible for any fees associated with such connection or access (such as those charged by an Internet Service Provider (ISP) or other online service). The Customer and its end-users (guests, customers, bidders, clients, etc.) will also need to obtain, at their own cost and expense, appropriate computers, wireless routers (to establish and maintain a wireless local area network (WLAN)), related equipment, and software (collectively, the “Customer Computers”). The Customer and its end-users are responsible for installing, maintaining, and operating the Customer Computers. Handbid is not responsible for any problems caused by any Customer Computer, including any virus or related problems associated with the use of the Services on any Customer Computer. Handbid does not guarantee and is not responsible or liable for the absence of continuous, uninterrupted or secure access to the Services, as the operation of the Handbid Web Site, WLAN, and Services may be interfered with by numerous factors outside of Handbid’s control.
1.8. Bandwidth and Storage Usage. The Customer agrees to provide, or to make arrangements to provide, adequate bandwidth necessary for Handbid to perform the Services hereunder.
1.9. Links to Other Sites. Handbid’s web site contains links to third party web sites. These links are provided solely as a convenience to the Customer and not as an endorsement by Handbid of the contents on such third-party web sites. Handbid is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party web sites. If the Customer decides to access linked third-party web sites, the Customer does so at its own risk.
1.10. Customer Responsibilities. Customer is solely responsible for arranging for delivery or pick-up of all items sold at their Auctions using the Services. Customer is solely responsible for the accuracy of all content uploaded to Handbid’s servers and responsible for making sure the content uploaded is in the proper format (as dictated by Handbid). As between the parties, Customer is solely responsible and liable for all fraudulent or unauthorized purchases, bids, or use of buyer PIN codes.
1.11. Independent Contractor Status. Handbid shall perform the Services as an independent contractor. The number of employees and the selection and retention of such employees of Handbid shall be determined by Handbid in its sole and absolute discretion. Handbid, or a supervisor or manager of Handbid with whom the Customer may consult concerning the Services, shall be available to the Customer at all reasonable times. All employees, agents, contractors, and subcontractors hired by Handbid to perform services hereunder shall be deemed to be the employees, agents, contractors and subcontractors of Handbid, and all salaries and compensation payable to them shall be the exclusive responsibility of Handbid.
1.12. Handbid will provide the implementation, configuration, training, or other professional services described in the Order Form (if any) in consideration for the associated fees described in the Order Form in accordance with the terms and conditions in Schedule 2.
1.13. Customer Obligations. Customer is responsible for the following obligations and tasks, at its cost and expense:
1.13.1. Collection, assembly, organization, and packaging of all auction items.
1.13.2. Providing accurate and complete item names, descriptions, bid prices, bid increments and other item configuration settings.
1.13.3. Acquisition, formatting, and uploading of all photos for auction items.
1.13.4. Learning the Handbid system by reading and reviewing articles and training materials in the Handbid knowledge base and contacting Handbid support.
1.13.5. Evaluation of the cellular and WIFI network connectivity at the event venue including configuration of all equipment (laptops and iPads) that need to connect to the network.
1.13.6. Setup & organization of the auction area, including labeling of all items on display.
1.13.7. Acquisition and training of staff to setup, organize, and run the auction event including registration, guest support, bidding, and checkout/payment.
1.13.8. Registration setup and management, including configuration of guest lists, table/placement assignments, processes and procedures and execution.
1.13.9. Checkout processes and procedures including organization of the checkout area, means to collect and manage offline payments (cash, check), and any additional receipts outside of what Handbid generates automatically for winning bidders.
1.13.10. All equipment required by staff and volunteers to manage registration, bidding, guest support, and checkout/payment.
1.14. Handbid Services. Handbid’s services include the following:
1.14.1. Handbid will setup an Organization and Auction manager account on Handbid Auction Servers and provide access information to the Customer. This access will be available to the Customer for the entire Term of the ASA.
1.14.2. Handbid offers multiple Auction Software Packages (“Package(s)”). Each Package may have limitations on the number of auctions or events a Customer may run during the Term or the number of items each auction may contain. The Package that Customer has purchased and the respective limitations shall be detailed on the applicable Order Form signed by Customer.
126.96.36.199 Each Package may also set a resource limit (“User Limit”) that reflects the maximum number of users that access a Customer’s auction or event (via mobile app or web). A user (“User”) is defined as any viewer (viewing any event page) or registered user (donor, bidder, fundraiser). If the Customer exceeds this limit at any time, Handbid at its sole discretion, reserves the right to upgrade the Client to a different Package that will accommodate the number of users accessing the Customer’s auction, event or fundraiser.
1.14.3. Handbid will provide access to its Handbid University online knowledge base (“Knowledge Base”) that provides self-paced training and documentation on the Handbid platform and services. This knowledge base is included in the price of any software Package and is available at https://service.handbid.com. Handbid does not guarantee the availability or accessibility of the Knowledge Base at any particular time, or from any particular location or device. Moreover, while Handbid will make best efforts to keep the Knowledge Base up to date, Handbid cannot guarantee the accuracy or completeness of the Knowledge Base.
1.14.4. Handbid will provide the following remote auction support: Handbid will provide remote email and online technical support in Auction configuration through Handbid’s support system at http://service.handbid.com or firstname.lastname@example.org. This support is business hours support: Monday – Friday 6 AM – 6PM MT. During any events, Handbid will provide remote support to the Customer via Handbid’s online chat and support system at manager.hand.bid. Handbid will make available on-call staff to handle technical issues regarding to the Handbid service. Handbid will provide the Customer with instructions on how to reach on-call staff prior to their event date.
1.14.5. Handbid will provide the following post auction support: Handbid’s software provides reports showing item performance, bidder performance, and all payments made / balances due. Once Customer has completed collections for their auction and requests a reconciliation, Handbid will reconcile the auction and provide a reconciliation report showing paid status on all invoices. Reconciliation is not automatic; Customer must request a reconciliation from Handbid before Handbid will start the process.
1.15. Optional Handbid Services. Handbid’s services may include the following:
1.15.1. If purchased by the Customer (as indicated on the applicable Order Form), the Package will allow Customer to run For Sale items through Handbid and process them on the same invoice as donations, live auction items and silent auction items (For Sale items do not include Tickets).
1.15.2. If purchased by the Customer (as indicated on the applicable Order Form), the Package will include a ticketing system. Tickets sold through this ticketing system may be charged a separate fee that will be listed in the applicable Order Form. Tickets are not counted as items in the item limit count that applies to specific auction Packages.
1.15.3. Subject to the Customer electing to use Handbid’s Integrated Payment system detailed in Schedule 1 of the ASA (this election occurs when Customer enables the credit card payment system for any auction in their account and uses that system to collect payments from end-users), Handbid will authorize collection of payments from bidders directly. Handbid will deduct transaction fees from proceeds transferred to Customer. Transaction fees are listed in the applicable Order Form.
1.16 Compliance with Law. Each party shall comply with all applicable laws, rules and regulations in its performance under this Agreement. Without limiting the previous sentence, Customer, is responsible and liable for obtaining all applicable registrations, licenses, permits and other permissions necessary to operate or run the auction(s) for which Customer is utilizing the Services. 1.17 Handbid has the right, but not the obligation, to monitor any activity and content associated with the Handbid Services. Handbid may, but shall not be obligated to, investigate any reported violation of this Agreement or any of its policies and guidelines or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials on the Site, including bids, all of which may be taken by Handbid without liability to you or any other person or entity.
1.17 Acceptance of Donations. If Customer is a registered charity in the US under IRS section 501(c)(3), or can prove to Handbid their registered Charity status in their respective country outside of the United States, then Customer may be authorized by Handbid to create direct donation items in Handbid auctions, events or fundraisers. These items include (but are not limited to) Appeals, Puzzles and Peer-to-Peer fundraising pages. Handbid may verify a Customer’s charitable status based upon a third-party verification service and reserves the right to authorize or deny Customer’s ability to solicit and accept donations through the Handbid system. Customer’s authorization to accept charitable donations through the Handbid Software shall be at the sole discretion of Handbid, and such authorization may be revoked at any time without notice for any reason.
1.18 Agency. If Customer is either (a) purchasing access to the Handbid Service for the benefit of a third-party 501(c)(3) organization (or equivalent charity status in a particular country), or (b) using the Handbid Service for the benefit of a third-party 501(c)(3) organization (or equivalent charity status in a particular country), then Customer represents and warrants to Handbid that: (x) Customer is acting as an agent for the third-party and has the power and authority to take the actions in either (a) or (b) as the case may be, including, without limitation using the third-party’s EIN, (y) Customer has notified the third-party 501(c)(3) organization (or equivalent charity status in a particular country) that Customer is entering this Agreement for the benefit of that third-party, and (z) all money raised by Customer using the Handbid Service shall be for the benefit of and delivered to the third-party 501(c)(3) organization (or equivalent charity status in a particular country)
1.19 Resource Limits. Customer may purchase a specific software license that includes a resource limit on the total number of users allowed to access the Handbid Event.
2 COMPENSATION FOR SERVICES
2.1 Compensation for Services. As compensation for the Services provided by Handbid pursuant to this Agreement, the Customer shall pay to Handbid the fees and compensation as described and set forth in the applicable Order Form that references this Agreement (“Fees”). The Customer is solely liable and responsible for all taxes and related assessments made regarding any sale by the Customer using Handbid’s services.
2.2 Payment for services. Handbid will provide schedule for fees due in the applicable Order Form. All invoices will be due and payable in U.S. Dollars (unless otherwise agreed upon) within the due date specified on the invoice. Unless otherwise agreed in an Order Form, Handbid will invoice Customer immediately upon execution of the contract, with fees due as specified in the applicable Order Form. Invoicing will occur via email. No refunds will be made except as provided in Section 4 “Warranty” set forth below.
2.3 Non-Payment and Late Fees. All fees are due on the date specified on the applicable Order Form. In addition, Handbid reserves the right to charge a fee on late payments. This fee shall be listed on the applicable Order Form. Unless specified otherwise on the applicable Order Form, the following non-payment terms shall apply: (a) Handbid can suspend the Customer’s account and access to the Handbid Software if any payments due are over 45 (forty-five) days past due, and (b) Handbid reserves the right to cover unpaid invoices using funds collected from auctions, events or fundraisers executed by Customer using the Handbid Software. In the event Handbid decides to cover overdue amounts with Collected Funds from the Customer’s Handbid account, Handbid also may charge an additional service charge of the lesser of (a) 20% of the balance due and (b) the maximum amount permissible by applicable law.
2.4 Travel Expenses. In addition to any and all Fees, Customer will reimburse Handbid for pre-approved expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Handbid in connection with providing any services detailed in the applicable Order Form (“Expenses”). Handbid will provide reasonable documentation for all Expenses as requested by Customer and Customer shall pre-approve expenses. Upon approval by Customer (which shall be provided within a reasonable timeframe), Handbid will invoice Customer for travel expenses as incurred.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 Grant of License to Handbid. The Customer hereby grants to Handbid a non-exclusive, worldwide, and royalty-free license for the entire term of this Agreement to use the Customer’s content provided to Handbid or uploaded to Handbid’s web site “Customer Content”) as necessary for the purposes of rendering, providing, and operating the Services to the Customer under this Agreement. The Customer expressly (a) grants to Handbid a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agrees that such caching is not an infringement of any of the Customer’s intellectual property rights or any third party’s intellectual property rights.
3.2 Handbid Materials and Intellectual Property. All materials, including, without limitation, computer software (in object code and source code form), data or information developed or provided by Handbid or its suppliers or agents prior to, outside of, or pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Handbid to provide the Services to the Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Handbid or its suppliers, including, without limitation, any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Handbid during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden. The Customer may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused by failure to abide by the terms of this Agreement.
3.3 Trademarks. The Customer hereby grants to Handbid a limited right to use the Customer’s trademarks, if any, for the limited purpose of permitting Handbid to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of the Customer’s trademarks or to use the Customer’s trademarks with any other products or services outside the scope of the Services provided under this Agreement except that Handbid may use Customer’s logo in Handbid marketing materials. The limited trademark use rights granted under this section terminates upon termination of this Agreement.
4 WARRANTY; WARRANTY DISCLAIMER
4.1 Customer and/or Third Party Acts. Handbid is not responsible in any manner for any nonconforming Services to the extent caused by the Customer or by its employees, agents, affiliates or representatives, which includes the Customer’s use of any equipment or applications not specifically recommended for accessing or interfacing with any aspect of the Services. In addition, Handbid is not responsible for loss or corruption of data in transmission, or for failure to send or receive data, caused by events beyond Handbid’s reasonable control.
4.2 Handbid Warranty
4.2.1 Handbid warrants that the Services will conform in all material respects with the terms of this Agreement, and will be provided in a good and workman-like manner consistent with standard practices in the remote auction facilitation business. As Handbid’s sole obligation and Customer’s sole and exclusive remedy for a breach of the warranty in this Section 4.2.1, Handbid shall refund to Customer any fees paid for the defective Services.
4.2.2 EXCEPT FOR THE WARRANTY SPECIFIED IN THE PREVIOUS SECTION, ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY HANDBID UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT HANDBID EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH HANDBID’S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. HANDBID DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, HANDBID DOES NOT MAKE AND HEREBY DISCLAIMS, AND THE CUSTOMER HEREBY WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
4.3 The Customer’s Warranties and Representations to Handbid. The Customer warrants, represents, and covenants to Handbid that (a) the Customer and its representative signing this Agreement is at least eighteen (18) years of age or is a duly organized and validly existing entity; (b) the Customer possesses the legal right and ability to enter into this Agreement; (c) the Customer will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) the Customer will be financially responsible for the use of its account; (e) the Customer has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) the Customer has verified or will verify the accuracy of materials and content distributed or made available for distribution by Customer or Customer’s agents via the Services, including, without limitation, the Customer’s content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, will be complete and accurate; and (g) the Customer Content does not and will not infringe or violate any right of any third party (including any intellectual property rights or rights of publicity), be defamatory, or violate any applicable law, regulation or ordinance. Additionally, the Customer hereby represents and warrants to Handbid that (a) Customer owns or has obtained all necessary rights in and to the Customer Content to allow Handbid access to, possession of, use of the Customer Content that is reasonably necessary to provide the Services, and (b) Customer owns or has obtained all necessary rights and permissions necessary to offer for sale and actually sell the auction items offered through the Service.
5 LIMITATION AND EXCLUSION OF LIABILITY; INDEMNIFICATION; DISCLAIMER RELEASE
5.1 Limitations. IN NO EVENT SHALL HANDBID HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HANDBID SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HANDBID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HANDBID TO THE CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HANDBID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HANDBID UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, THE CUSTOMER HEREBY RELEASES HANDBID FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 5. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, HANDBID’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT THIS LIMITATION ON DAMAGES IN THIS PARAGRAPH IS INCLUDED AS A MATERIAL INDUCEMENT TO HANDBID TO ENTER INTO THIS AGREEMENT AND THAT THE PRICING AND OTHER TERMS MADE AVAILABLE TO CUSTOMER WOULD NOT HAVE BEEN AVAILABLE IF THIS PARAGRAPH WERE NOT INCLUDED IN THE AGREEMENT. THE CUSTOMER SHALL BE PRECLUDED FROM MAKING ANY SUCH CLAIM FOR DAMAGES IF SUCH CLAIM IS NOT MADE WITHIN THE ONE (1)-YEAR PERIOD FOLLOWING THE EVENT DATE.
5.2 Interruption of Service. The Customer hereby acknowledges and agrees that Handbid will not be liable for any temporary delay, lack of connectivity, outages or interruptions of the Services not caused by Handbid.
a) The Customer will defend, indemnify and hold harmless Handbid and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an “Indemnitee”) from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) the Customer’s negligence, gross negligence, or willful misconduct; (ii) the Customer’s breach of any term, obligation, representation or warranty in this Agreement, (iii) the Customer’s improper or illegal use of the Services; (iv) actual or attempted purchases, bids, or other transactions or interactions between Customer and any third party, including, without limitation, buyers at auctions run through the Services or (v) fraudulent or unauthorized use of a buyer’s PIN code.
b) Handbid will defend, indemnify and hold harmless the Customer and its Indemnitees from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to Handbid’s gross negligence, or willful misconduct.
5.4 A party seeking indemnification under this Section will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim; and (c) provide to the other party all available information and assistance.
5.5 Because Handbid is not a party in the actual transaction between a seller and buyer conducted through the Handbid Services and is not the agent of either for any purpose, Handbid does not have the duty to attempt to resolve or resolve any disputes between participants related to or arising out of any such transaction. Handbid has no control over and does not guarantee the quality, safety or legality of an item offered for sale through the Handbid Services, the truth or accuracy of listings, the authority of sellers to sell items or pass title, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction. No statement by any seller regarding condition, kind, value or quality of a lot shall be construed to be an expressed or implied warranty, representation or assumption of the liability by Handbid. Accordingly, Sellers and Buyers should resolve amongst themselves all disputes between them arising from the use of this Site. Handbid reserves the right, but has no obligation, to investigate either a Seller’s or a Buyer’s complaint with respect to any item of Items offered for sale through the Site. You agree to cooperate with any investigation that Handbid may conduct in response. BECAUSE HANDBID IS NOT THE SELLER IN TRANSACTIONS BETWEEN BUYERS AND SELLERS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, THE CUSTOMER WILL RELEASE HANDBID (AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES) 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 DISPUTES. IF CUSTOMER IS A CALIFORNIA BUSINESS OR IF THE DISPUTE IS BETWEEN CUSTOMER AND A CALIFORNIA RESIDENT, CUSTOMER WAIVES 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.” CUSTOMER, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS CUSTOMER MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY HANDBID.
6 TERM AND TERMINATION
6.1 Term. The Agreement commences on the Effective Date and continue until termination or expiration of all Order Forms (“Term”). The initial term of an Order Form shall begin on the date set forth in the Order Form and continue until the Expiration Date set forth in in the Order Form, or one-year if the Expiration Date is not specified (“Initial Term”). Each Order Form shall automatically renew for additional terms each of the same length as the Initial Term. (each, a “Renewal Term”), unless either party provides written notice of its intent not to renew at least forty-five (45) days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and each Renewal term are collectively referred to as the “Order Term”.
6.2 Termination. Either party shall be permitted to terminate this agreement or an Order Form upon written notice to the other party if (i) the other party breaches this Agreement and fails to cure such breach within thirty (30) days following written notice by the non-breaching party; (ii) the other party makes a general assignment of a substantial portion of its assets for the benefit of its creditors; or (iii) a bona fide bankruptcy, liquidation, receivership, or similar proceeding is instituted by or against the other party and such proceeding is not dismissed within one-hundred-twenty (120) days after the institution thereof.
6.4 Effect of Termination. Upon any termination of this Agreement and all Order Forms, the parties shall have no further rights, duties or obligations hereunder, other than those accruing prior to the effective date of termination and those set forth in Section 3.2 (“Handbid Materials and Intellectual Property”) and Sections 4.2.2, 4.3, 5, and 7, which shall survive any termination of this Agreement. In addition, Customer understands that upon such termination,
6.4.1 Access to the Handbid Services, and all rights granted to Customer under this Agreement, will immediately cease;
6.4.2 Customer Content (including, without limitation, account information) will be immediately erased, provided that Handbid may, in its discretion, retain such Customer Content in Handbid’s archived backup files. Customer understands that recovery of this information if the Customer decides to re-instate their account under a new agreement (or asks Handbid to send to Customer its account information) will require a reinstatement / data recovery fee at Handbid’s then current rates.
6.4.3 All amounts owed to Handbid under this Agreement and the Order Forms shall be immediately due and payable in accordance with this Agreement and the applicable Order Form.
7.1 Confidentiality. The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or be disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. “Confidential Information” means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information are (a) information in the public domain, (b) information developed independently by a party without reference to information disclosed under this Agreement, or (c) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either party, but in such case, prior to disclosure, the disclosing party shall give written notice to the other party to permit that party an opportunity to challenge such disclosure. If either party is subpoenaed, such party shall give written notice to the other party to permit that party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing party, each party shall promptly return all Confidential Information of the other party. This provision shall survive the termination of this Agreement for two (2) years.
7.2 Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
7.3 Amendments. This Agreement may not be amended except by an instrument in writing signed by Handbid and the Customer.
7.4 Assignments. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
7.5 No Waiver. No party’s failure to enforce the strict performance of any provision of this Agreement will constitute a waiver of such party’s right to subsequently enforce such provision or any other provisions under this Agreement.
7.6 Survival. All provisions of this Agreement relating to warranties, intellectual property rights, limitation and exclusion of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
7.7 Relationship of the Parties. The parties hereto agree that it is not the purpose or intention of this Agreement to create any trust or commercial relationship or any other corporate relationship for any purpose whatsoever. Except as specifically provided herein, nothing in this Agreement shall be construed to make either party a partner, employer, employee, joint venturer, legal representative or agent of the other, and each party hereby agrees not to hold itself out as such or make any statement or representation that it has any such relationship. Neither party is authorized to accept any orders on behalf of the other party or to otherwise exercise or waive any right or incur, assume, or create any debt, obligation, contract, or release of any kind whatsoever in the name of or on behalf of the other party.
7.8 Notices. All notices and other communications required or permitted hereunder shall be in writing and, unless otherwise provided in this Agreement, shall be deemed to have been duly given when delivered in person or by mail (or when dispatched by telegram or electronic facsimile transfer confirmed in writing by mail simultaneously dispatched) to the addressee at the address specified below:
If to Handbid: HandBid Inc., 9707 E. Easter Lane, Suite B, Centennial, CO 80112
If to the Customer:
Address and Contact information to be specified in the applicable Order Form
7.9 No Fiduciary Relationship; No Third-Party Beneficiaries. Handbid is not the agent, fiduciary, trustee or other representative of the Customer. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
7.10 Governing Law; Exclusive Jurisdiction and Venue. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF COLORADO AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID STATE. Each of Handbid and the Customer (a) hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Colorado, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement, and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
7.11 Statutory Exceptions for Public Institutions. If the Customer is a qualified public educational or government institution and any part of this Agreement, such as, by way of example, all or part of the indemnification section (5), is invalid or unenforceable against Customer because of applicable state or federal law, then that portion shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If Colorado law is precluded, this Agreement shall be construed under the laws of the state in which Customer’s public educational or government institution is located.
7.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all of which together shall constitute one and the same instrument.
7.13 Entire Agreement. This Agreement, including the Schedules and applicable Order Form referenced attached hereto constitute the entire agreement of the parties with respect to the subject matter hereof. In the event of conflict between this Agreement and the Order Form, the applicable Order Form shall prevail.
7.14 Force Majeure. Handbid will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond Handbid’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or IT failures or delays, third party service providers, computer failures involving hardware or software not within Handbid’s possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
Epidemics of disease are not a Force Majeure Event unless a government order precludes performance of an auction or event on a particular date. In the case of a Force Majeure Event, the Customer’s sole remedy will be either, at Customer’s election, to: (1) conduct a virtual event within the Term; or (2) renew the Customer’s subscription for an additional term (“Renewal Term”), wherein Customer may conduct the un-used event within the Renewal Term. Customer will only be authorized to run one extra event during the Renewal Term for each event not run due to a Force Majeure Event. Regardless, under no circumstances will any fees or payments be refunded in any term for the purchase or renewal of Services due to a Force Majeure Event.
7.15 Headings. The section headings of this Agreement are only for the purpose of reference and shall not affect the meaning hereof.
SCHEDULE 1 – INTEGRATED PAYMENT SYSTEM POLICY
IMPORTANT! PLEASE READ CAREFULLY
This Integrated Payment System Use and Processing Policy (this “Policy”) is an integral part of the Agreement and any applicable Schedules between Handbid (“Handbid”, “we”, “our” or “us”) and the Customer (“you” or “your”). By your use of the Integrated Payment system you are agreeing to all the provisions provided in this Policy.
Use of the Integrated Payment system is an option; and if you enable the Integrated Payment system through the Handbid Auction Manager and process any payments through it, you are agreeing to all the provisions provided in this Policy.
S-1 Receiving your Funds from Card Transactions
S-1.1 When you elect to process payments from a winning bidder with the Integrated Payment system, the collected funds transfer directly to our third party credit card processor, which is currently Stripe.com but may include additional or replacement credit card processors at our sole discretion (“Processor”). Generally processed funds are transferred from our Processor to your account within 2 business days; however, it is possible for it to take even longer, especially with newly created accounts. Please inquire with the Processor directly if payouts to your account are taking longer than expected.
S-1.2 Once you notify us that you have completed collection of funds through Handbid for your Auction, we will send you a final settlement report (“Auction Settlement Report”). The Auction Settlement Report will have details of your net proceeds of the processed funds (less any processing fee taken out by Handbid to merchant fees). Once you have reviewed, signed and returned Auction Settlement Report to us, we will reconcile your auction and mark it finalized. Once reconciled, the payment processing feature will be disabled, preventing any further processing on this event.
S-1.3 You are solely responsible for item delivery, bidder satisfaction, refunds, returns, and liabilities arising from customer disputes (chargebacks). Further, you are responsible for compensating us for any fees we incur as a result of a dispute arising from transactions at your Auction, including but not limited to any funds debited from our accounts by our Processor (this should come directly out of your account), arising from a customer dispute that is not resolved in your favor and not handled by You. In all circumstances where our employees are requested to assist you in resolving a dispute, chargeback, refund request or other matters related to a transaction at your Auction, and provided such request is made subsequent to our receipt of your signed final reconciliation report, you agree to pay us $100.00 per dispute payable within 30 days of your request for assistance on the dispute at issue.
S-2 Payment Methods
S-2.1 The Integrated Payment system supports any card supported by the Processor (collectively “the Card Networks”). You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase auction items. We do not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back. You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. The Processor may add or remove one or more types of cards as supported payment card any time without prior notice to you.
S-3 Currency Conversion
S-3.1 Our processor can settle payments in any currency that is an option in Handbid’s auction settings. If you select a different currency than USD, then the Processor will convert that transaction to USD. Upon this conversion, you will be subject to a currency conversion fee. These conversion fees will be added to the transaction fees associated with the transaction and deducted from the net proceeds deposited in your account.
S-4.1 The Processor maintains commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in their servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
Professional Services Terms
Capitalized terms set forth in this Appendix but not defined in the Appendix have the meaning given elsewhere in the Agreement.
Statements of Work. All services to be performed under an Order Form shall be described in either an Order Form or a separate written, mutually agreed to, statement of work signed by authorized representatives of both parties (each a “SOW”), each of which is expressly made subject to the terms and conditions of this Agreement. Customer agrees to retain Handbid to perform the consulting services described in each SOW (the “Services”), and Handbid agrees to perform the Services on the terms and subject to the conditions and assumptions set forth in this Agreement and the additional services descriptions described here: https://www.handbid.com/handbid-ps-terms/ (“PS Terms”). Statements of Work should contain descriptions of the Services and a description of any deliverables to be provided by Handbid, Handbid’s compensation, and any additional terms and conditions the parties deem appropriate. Customer and Handbid expressly acknowledge and agree that any schedules or timelines shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement. Handbid agrees to use diligent efforts to meet schedules. Customer acknowledges that Handbid limits the amount of time Handbid’s personnel spend on out of town travel, and such limits may impact the weekly schedules of a particular engagement. All Services and Deliverables are accepted upon delivery.
Changes. Each party may request changes that affect the scope or duration of the Services relating to any SOW. Neither party shall be bound by any change requested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order”). Each Change Order will be subject to the terms and conditions of this Agreement.
Location and Access. Handbid may perform the Services at Customer’s premises, Handbid’s premises or such other premises that Customer and Handbid may deem appropriate. The SOW may describe the location where Handbid will perform Services. Customer will permit Handbid to have reasonable access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services at Customer’s premises.
Customer Assistance. Customer shall provide Handbid with such resources, information, cooperation, and assistance as Handbid may reasonably request in connection with the performance of the Services. Without limiting the generality of the foregoing, in the event the Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, and other resources as reasonably requested by Handbid, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Handbid’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested. Handbid shall have no liability for deficiencies in the Services or Deliverables, or failure to meet any Schedule, resulting from the acts or omissions of Customer, its agents or employees or performance of the Services in accordance with Customer’s instructions. Customer shall comply with any obligations outlined in the PS Terms.
Customer Information. Customer acknowledges and agrees that Handbid may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Handbid shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Handbid, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and Handbid shall be entitled to rely on all such decisions of Customer.
Ownership. “Handbid Reserved Technology” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned or licensed by Handbid (i) prior to the Effective Date of this Agreement or (ii) during the term of this Agreement but outside the scope of this Agreement and any SOW or (iii) during the term of this Agreement that are generally applicable and not Customer-specific. Other than Handbid Reserved Technology, all work product that Handbid creates specifically for Customer under any SOW (the “Deliverables”), all patents, copyrights, trade secrets or other proprietary rights in or to the Deliverables are and will be the sole and exclusive property of Customer, and Handbid hereby assigns ownership of Deliverables to Customer. Notwithstanding the foregoing, Handbid shall own all worldwide right, title and interest in and to the intellectual property rights embodied in the Handbid Reserved Technology, whether or not such Handbid Reserved Technology is incorporated into any Customer Deliverables. Nothing in this Agreement shall prevent Handbid from creating derivative works based on the Handbid Reserved Technology, developing, modifying, using, marketing, distributing or otherwise commercially exploiting the Handbid Reserved Technology in any manner. Handbid reserves all rights not expressly granted to Customer under this Agreement. Nothing contained herein shall be construed as limiting Handbid’s rights to commercially use or market in the conduct of Handbid’s business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Handbid or learned or developed during the course of providing the Services, without obligation of any kind to Customer.
Limited Warranty. Handbid represents and warrants that Handbid will perform the Services in a good and workmanlike manner. As Handbid’s sole obligation and Customer’s sole and exclusive remedy for breach of this warranty, Handbid will re-perform any defective services at no additional cost to Customer.