Effective April 26, 2019
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved. The Section of this User Agreement entitled “Dispute Resolution for Consumers,” will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of arbitration within thirty (30) days of the date you first agree to this User Agreement by following the opt-out procedure specified in the “Dispute Resolution for Consumers” Section. Unless you opt-out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis, and (3) you will be waiving your right to a trial by jury.
We are a technology services and platform provider. Our Services connect people selling items online (“Sellers”) with people who want to purchase those items (“Buyers”) through online auctions and other commerce events (each an “Event”) managed by third party moderators or seller-moderators (“Moderators”). Sellers can sign up to the Services and offer their items for sale by contacting the appropriate Moderator who will list their items in the appropriate Event. Buyers can sign up to the Services if they want to bid on or purchase such items during an Event. We may sell items ourselves in which case such transactions will also be subject to our Direct to Buyer Policies. Unless an item is purchased directly from us, our responsibilities under this User Agreement are limited solely to facilitating the availability of our Services.
We may use third parties to process payments by Buyers and to payout funds to Sellers and Moderators. To the extent we accept, hold, or transmit funds in connection with an item purchased in an Event, we do so as an agent of the applicable Seller or Moderator.
Your access to the Services, your participation in any Event, and your purchase of any items through the Services are at your own risk and we disclaim all warranties, express or implied, and limit our liability in this User Agreement.
While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the existence, quality, safety, or legality of items sold or purchased; the truth or accuracy of users’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer or Seller will actually complete a transaction or return an item.
Use of the Services
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, user submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Auxxit’s) rights.
You understand that Auxxit owns the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, does not mean that all of the above restrictions don’t apply.
In connection with using or accessing the Services you will not:
- create more than one user account per individual (i.e. you may not create multiple user accounts using the same or different email addresses);
- post, list, or upload Content or items in inappropriate categories or areas on our sites;
- breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
- use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications, or tools;
- fail to pay for items purchased by you, unless you have a valid reason as set out in an Auxxit policy, for example, the Seller has materially changed the item’s description after you bid or otherwise made an offer to purchase, a clear typographical error is made, or you cannot contact the Seller (see our Buyer Policies);
- fail to deliver items sold by you, unless you have a valid reason as set out in an Auxxit policy, for example, the Buyer fails to comply with the posted terms in your listing or you cannot contact the Buyer;
- manipulate the price of any item or interfere with any other user’s listings;
- post false, inaccurate, misleading, deceptive, defamatory, or libelous Content;
- take any action that may undermine any feedback or ratings systems we have or may implement in the future;
- transfer your Auxxit account (including feedback) and user ID to another party without our consent;
- distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;
- use the Services to market or promote other websites, applications, digital marketplaces, or other services or to divert users to such other websites, applications, digital marketplaces, or other services;
- distribute viruses or any other technologies that may harm Auxxit or the interests or property of users;
- use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated or manual means to access our Services for any purpose, except with our prior express permission;
- interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
- export or re-export any Auxxit application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Auxxit. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from Content that belongs to Auxxit or someone else;
- infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post Content that does not belongs to you;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by us (and only pursuant to those terms and conditions, if any, that are applicable) unless you have been specifically allowed to do so in a separate agreement with us;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services or Content;
- use, display, mirror or frame the Services, any individual element within the Services, or the layout and design of any page or form contained on a page, without our express written consent;
- commercialize any Auxxit application or any information or software associated with such application, except with the prior express permission of Auxxit;
- harvest or otherwise collect information about users without their consent;
- circumvent any technical measures we use to provide the Services;
- copy or store any significant portion of Content;
- engage in activities that illegally or improperly lead to the collection, disclosure, or provision of other’s personal information, registered information, user history, or the like;
- use the Service for the purpose of sexual conducts or obscene acts, use the Service for the purpose of meeting a person for sexual encounters, use the Service for the purpose of harassments or libelous attacks against other users, or use the Service for purposes other than the Service’s true intent;
- violate any applicable law or regulation; or
- encourage or enable any other individual to do any of the foregoing
If we believe you are abusing Auxxit in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted Content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
In order to use the Services, you will need to register with us, create a username, and provide certain information about yourself as prompted by the registration form, including a valid email address. You may not use a username for the purpose of impersonating another person or entity, including staff or any other representative of Auxxit. We reserve the right to remove or reclaim inactive usernames or usernames on behalf of businesses or individuals that hold trademark or other legal claim on those usernames.
By creating an account, you agree to abide by the terms of this User Agreement and provide accurate information. Unless you are an agent authorized to bind another person and you are acting under that person’s direction, you may not create an account for anyone other than yourself. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this User Agreement. You are responsible for all use of your account.
You may permit a person under the age of 18 to use your account, but you are responsible for all use of your account.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
When a Buyer, Seller, or Moderator issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for Moderators, Buyers, and Sellers.
The fees we may charge for using our Services are listed on our Auxxit Seller Policies page. We may change our Seller fees from time to time by posting the changes on our site fourteen (14) days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
You must have a payment method on file when selling on Auxxit and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed by charging other payment methods on file with us, and retain collection agencies and legal counsel. In addition, you will be subject to late fees of one percent (1%) per month. We, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
Items purchased by and shipped to Buyers in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes (“State Tax”). Items purchased by and shipped to Buyers in locations outside the U.S. may also be subject to applicable taxes, including value added taxes (collectively with State Tax, “Taxes”). The amount of Taxes is based on a number of factors, including but not limited to the type of Items purchased, the Buyers designated delivery address, and/or the location of the Seller. Auxxit will collect Taxes from Buyers on behalf of Sellers where we may legally do so. This includes those states that have enacted legislation that requires marketplaces, like Auxxit, to collect Taxes on behalf of Sellers. It also includes those states that have agreed to allow Auxxit to collect Taxes on behalf of Sellers. In these states, the amount of Taxes collected will be submitted by Auxxit to the appropriate taxing authority on behalf of Sellers. If Auxxit is unable to submit Taxes on behalf of Sellers, Auxxit will provide Sellers with the amount of Taxes collected. Sellers are responsible for submitting such Taxes to the appropriate taxing authority. Sellers are responsible for paying all taxes imposed or measured by Seller’s net income, net profits, income, profits, and/or revenues associated with the sale of any items through the Services.
You are responsible for safeguarding the password that you use to access the Services. You agree to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. We encourage you to use strong passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must immediately notify us of any unauthorized use of your account, or if you have reason to believe that your password was lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Auxxit is not liable for any loss or damage arising from your failure to comply with the above requirements.
We do not endorse any Moderators, Sellers, or any items they may offer for sale through the Services. We do not have an obligation to conduct background checks on any Moderator or Seller, but we might do so on a discretionary basis. We are not responsible for any damage or harm resulting from your communications or interactions with a Moderator or Seller. Moderators and Sellers are not employees, agents, or otherwise contractors of Auxxit and we do not, in any way, supervise, direct, or control a Moderator or Seller. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Moderators, Sellers, or other third parties will be limited to a claim against the Moderators, Sellers, or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
Bidding or Making Offers to Purchase in Events
Auxxit Events are real, and any bids or offers to purchase placed are binding offers to purchase the item listed in the Event. You are responsible for reading the full item description and individual Event terms before making a bid or offer to purchase. If your bid is the winning bid or your offer to purchase is accepted by the Seller (a “Purchase”) you agree to pay such bid or offer amount (the “Purchase Price”). You have 24 hours after Purchase to pay the Purchase Price through the Services, after which time the Seller has the option to cancel an unpaid Purchase. Unpaid Purchases are automatically canceled after three (3) days.
If you make a Purchase, you may be asked to provide payment information, including your credit card number, your bank account and routing number, the expiration date of your credit card, your address(es) for billing and delivery, and other information about your financial accounts (such information, “Payment Information”). If you make a Purchase, you authorize Auxxit and Auxxit’s payment processor(s) to use the Payment Information to charge your designated payment account. You also authorize Auxxit and Auxxit’s payment processors to correct any mistakes in payments made by or to you, including any processing errors we discover, by using the Payment Information to debit or credit the payment account used in the applicable transaction.
You agree to bear any additional charges that your bank or other financial service provider may levy on you. You may receive a confirmation email once the transaction is complete. If you have any concerns or objections regarding charges, you agree to raise them first with us and you agree not to cancel, reject, chargeback or request reversal of any charges related to a Purchase unless you have made a reasonable attempt at resolving the matter directly with Auxxit.
Because Buyers and Sellers may be located in separate and applicable tax jurisdictions, a Purchase may be subject to local sales, customs or value-added taxes or additional postage upon delivery. These taxes or additional postage fees are not charged by or through the Services and we cannot be responsible for or provide order-specific advice regarding additional taxes or postal fees.
You agree to comply with our Auxxit Buyer Policies and that you will not engage in any manipulative or disruptive bidding or offer to purchase practices, including without limitation “shill” bidding or offering or any other practice designed to interfere with the natural progression of bidding or offering to purchase or otherwise affect ultimate sale price of any item.
When you make a Purchase via the Services, you are purchasing directly from the applicable Seller of the item, not from Auxxit or the Moderator unless Auxxit or the Moderator is also the applicable Seller. Any details regarding the item, including but not limited to product descriptions, warranties offered, or any other terms set forth in the listing are between you and the applicable Seller. You should review and familiarize yourself with any and all terms of sale provided by the Seller prior to bidding on an item.
When listing an item through a Moderator, you agree to comply with our Auxxit Seller Policies and that:
- You are responsible for the accuracy and Content of the listing and item offered;
- Content that violates any of our policies may be deleted at the Moderator’s or our discretion;
Moderators must meet our minimum performance standards. Failure to meet these standards may result in Auxxit reducing your moderator fee, and/or limiting, restricting, suspending, or downgrading your Moderator Account. You agree to comply with our Auxxit Moderator Policies.
Unless such items are sold directly by us, we do not have any control over or liability for the quality, safety, legality, descriptions, photos, or other aspect of the items listed for auction, nor do we have any control over or liability for the accuracy, truthfulness, quality, or other aspect of the materials and information associated with items listed for auction. We are not liable or responsible for defective items. California’s Proposition 65 entitles California consumers to special warnings for products that contain chemicals known to the state of California to cause cancer and birth defects or other reproductive harm if those products expose consumers to such chemicals above certain threshold levels. If a product does not comply with California Prop 65 regulations, the applicable Seller is required to include a warning in the listing description.
If an item sold on Auxxit is delivered to you in a defective condition, or if you do not want to keep a delivered item for any reason, your sole remedy is to return the product directly to the Seller. Items must be returned within 30 days of the delivery date using a valid, electronically visible tracking number. Full refund of the purchase price (including original shipping if the item was delivered to you in a defective condition) will be processed once the return is verified through tracking.
When providing Content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that Content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. You agree that this license includes the right for us to make such Content available to other users of the Services, who may also use your Content subject to this User Agreement to take advantage of the Services. No compensation will be paid with respect to the Content that you submit, post, transmit or otherwise make available through the Services, even if used by other companies, organizations or individuals who partner with us. To the fullest extent permitted under applicable law, you waive your right to enforce against us, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that Content in connection with our, those assignees’, and those sublicensees’ use of that Content.
You represent and warrant that, for all such Content you provide, (i) you have all the rights, power and authority necessary (you own it or have the right to use it) to grant the rights granted herein to any Content submitted; (ii) your Content or your use and provision of your Content to be made available through the Services does not violate any privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity or result in the violation of any applicable law or regulation; and (iii) such Content is accurate. You represent and warrant that use of any such Content (including derivative works) by Auxxit, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere. We take no responsibility and assume no liability for any Content provided by you or any third party.
All Content is the sole responsibility of the person who originated such Content, including its legality, reliability, and appropriateness. We do not monitor or control the Content posted via the Services, and we cannot take responsibility for such Content. Any use of or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.
You may request removal of your Content from the Services at any time by specifically deleting it or sending a request to customer support. Some Content cannot be deleted entirely as either Auxxit or another user may need it for tax or other purposes. If you choose to remove your Content or cancel your account, your Content will be removed from public viewing as soon as is practical, (although back-up copies may survive for archival and record keeping purposes), provided, however, in certain instances, copies of your Content may continue to exist in published or recorded form when it has been retransmitted, redistributed, or otherwise. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any Content on the Services. We retain the right to create limits on use and storage at our sole discretion at any time with or without notice.
We may need to modify or adapt your Content in order to transmit, display, or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that user Content to any requirements or limitations of any networks, devices, services or media and you hereby grant us the rights to do so.
We may offer a catalog of items, which may include photos, descriptions, and other information provided by third parties. We cannot guarantee that the information contained in such catalog will be accurate or up to date, and you agree not to hold such third party Content providers, or Auxxit, responsible for any inaccuracies.
Subject to your compliance with this User Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services.
The name “Auxxit” and other Auxxit marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Auxxit in the United States and other countries. They may not be used without the express written prior permission of Auxxit.
Restrictions on Content
We reserve the right at all times (but are not obligated to) to remove or refuse to distribute any Content on the Services, which violates this User Agreement or any Auxxit policy for using the Services and submitting Content. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this User Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Auxxit, its users, and the public.
Privacy of Others; Marketing
If we provide you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
Ownership of the Services
All right, title, and interest in and to the Services (excluding your Content), including all associated intellectual property rights, are and will remain the exclusive property of Auxxit and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in this User Agreement gives you a right to use the Auxxit name or any of the Auxxit trademarks, logos, domain names, or other distinctive brand features. You may use the Auxxit name or any of the Auxxit trademarks, logos, domain names, or other distinctive brand features only in the event Auxxit grants you the right to do so in a separate written agreement. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates the rights of Auxxit or any third party. You may not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services, including any Content. Any feedback, comments, or suggestions you may provide regarding Auxxit or the Services are entirely voluntary and are the sole and exclusive property of Auxxit. You hereby irrevocably assign to us all of your right, title and interest in and to such feedback, comments or suggestions, and Auxxit is free to use them as we see fit and without any obligation to you.
Auxxit respects copyright law and expects its users to do the same. It is the policy of Auxxit to disable and/or terminate, in appropriate circumstances, the accounts of users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
We may suspend or terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you, including, without limitation, if you violate the letter or spirit of any of this User Agreement, or otherwise create risk or possible legal exposure for us. You may cancel your account at any time by sending an e-mail from the e-mail address associated with your account requesting that your account be deleted to email@example.com.
Upon any termination, discontinuation, or cancellation of Services or your account, the following provisions will survive: ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in our applications may not occur in real time. Such functionality is subject to delays beyond our control.
You agree that you are making use of our Services at your own risk, and that the Services are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we disclaim all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security, or reliability of the Services or any Content thereon. We make no guarantee as to the duration or manner in which items appear on Auxxit, whether at auction, or otherwise. Auxxit is not responsible or liable for any harm to your computer system, loss of data, glitches, bugs, errors, delays, disruptions, or other harm that results from your access to or use of, inability to access or use, the Services, or any Content. You agree that we are not liable for any damage or losses resulting directly or indirectly from any suspension of your account. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through the Services, will create any warranty not expressly made herein.
In addition, to the extent permitted by applicable law, we (including our subsidiaries and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- the Content you provide (directly or indirectly) using the Services;
- your use of or your inability to use our Services;
- pricing, shipping, format, or other guidance provided by us;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any Auxxit Service;
- the Content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
- a suspension or other action taken with respect to your account or breach of this User Agreement; or
- your need to modify practices, Content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL AUXXIT OR ITS PARTNERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO AUXXIT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree to defend, indemnify, and hold harmless Auxxit and its partners, and their officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services, your violation of this User Agreement or any Content posted, published, transmitted or otherwise provided by you or on your behalf.
Waiver and Severability
The failure of us to enforce any right or provision of this User Agreement does not constitute a waiver of such right or provision. In the event that any provision of this User Agreement is held to be invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Dispute Resolution for Consumers” section below or by a court of competent jurisdiction, if you are accessing and using the Services on behalf of a company or other legal entity or timely opt out of arbitration as set forth below), the remaining provisions of this User Agreement will remain in full force and effect.
You may not assign or transfer this User Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this User Agreement, without such consent, will be null and of no effect. We may freely assign or transfer this User Agreement without restriction. Subject to the foregoing, this User Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Auxxit to you under this User Agreement, including those regarding modifications to this User Agreement, will be given by Auxxit: (i) via email; or (ii) by posting to our site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
This User Agreement and any action related thereto are governed by the laws of the State of Colorado, without regard to or application of its conflict of law provisions or your state or country of residence.
Dispute Resolution for Commercial Entities
If you are accessing and using the Services on behalf of a company or other legal entity, all claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the state and federal courts located in the County of Denver, Colorado, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
Dispute Resolution for Consumers
Agreement to Arbitrate. If you are accessing and using the Services as an individual, you and Auxxit agree that any dispute, claim or controversy arising out of or relating to this User Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”).
Opt-Out Procedure. Without limiting the preceding Section entitled “Agreement to Arbitrate,” you will also have the right to litigate any other Dispute if you provide Auxxit with written notice of your desire to do so by email at INQUIRY@auxxit.com or regular mail at Auxxit, Inc., 607 FOOTHILL BLVD., SUITE 425, LA CANADA, CALIFORNIA within thirty (30) days following the date you first agree to this User Agreement (such notice, an “Arbitration Opt-out Notice”). If you do not provide Auxxit with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) in the preceding Section entitled “Agreement to Arbitrate.” The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Auxxit with an Arbitration Opt-out Notice, will be the state and federal courts located in Denver County, Colorado and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Auxxit with an Arbitration Opt-out Notice, you acknowledge and agree that you and Auxxit are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Auxxit otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution for Consumers” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution for Consumers” section will survive any termination of this User Agreement.
Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section 18.3. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution for Consumers” section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Consumer Rules.
Arbitration Location and Procedure. Unless you and Auxxit otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Auxxit submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of above Section entitled “Disclaimer of Warranties; Limitation of Liability” as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Auxxit will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provision regarding changes to this User Agreement in the “Entire Agreement” section below, if Auxxit changes this “Dispute Resolution for Consumers” section after the date you first accepted this User Agreement (or accepted any subsequent changes to this User Agreement), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Auxxit’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Auxxit in accordance with the provisions of this “Dispute Resolution for Consumers” section as of the date you first accepted this User Agreement (or accepted any subsequent changes to these this User Agreement).
We may revise this User Agreement from time to time. If we make any material changes to this User Agreement, we will notify you of such changes by posting them on the Auxxit website or by sending you an email or other notification, and we will indicate when such changes will become effective. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised User Agreement.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.