GREAT AMERICAN RADIO AUCTION USER AGREEMENT
Please read this Great American Radio Auction User Agreement (?Agreement?) carefully, as it contains the terms and conditions that will govern your use of the Proxibid Web site through www.bidonomaha.com and www.proxibid.com/clearchannel (the ?Auction Web Site?) hosting the Great American Radio Auction (the ?Auction?) and services related thereto (the ?Auction Services?). This Agreement constitutes a legally binding agreement between you, the Seller (as defined below), and Proxibid. Your clicking on the button marked ?I ACCEPT? and your use of the Auction Web Site indicates your acknowledgment that you have read, understand, agree to, and accept this Agreement. It is your responsibility to carefully read this Agreement before participating in the Auction, using this Auction Web Site or the Auction Services. If you do not wish to be bound by this Agreement, you may not use the Auction Web Site or Auction Services. For purposes of the Clear Channel Omaha Great American Radio Auction only, this Agreement supplements the terms in any other agreement you or Seller have entered into with Proxibid. In the event of any direct conflict or inconsistency between the terms of this Agreement and such other agreement, the terms of this Agreement shall prevail and govern. This Agreement and the terms hereunder shall not apply to any other auctions on the Proxibid Web site.
The following terms are defined for use in this Agreement, and their meaning in this Agreement is limited to the given definition.
"APN" means Auction Payment Network, LLC, a subsidiary of Proxibid, Inc.
?Bidder? or ?Buyer? means an individual or entity that creates a Bidder account on the Proxibid Web site and uses such account to participate in the Auction.
"Customer Service" is Proxibid?s customer support team which can be accessed by calling (877) 505-7770 from 7:00 AM to 11:00 PM Central Time, Sunday through Friday, and 6:00 AM until the last auction closes on Saturday.
?Auction Terms? means the set of terms and conditions set forth under Section 5 of this Agreement, which govern the relationship between a Buyer and the Seller.
"Information" means any confidential and/or personally identifiable information or other information related to an account or User, including but not limited to the following: name, email address, billing/shipping address, phone number and financial information.
?Proxibid,? ?we,? ?us,? and ?our?: These terms all refer to Proxibid, Inc.
?Seller? means Capstar Radio Operating Company d/b/a Clear Channel Omaha.
"Significantly Not as Described (SNAD) Claim? means an action taken by a Buyer against the Seller when the Buyer has purchased an item that arrived but was significantly different from the item description.
?You,? ?your,? and ?User?: These terms refer to the individual or entity using the Auction Web Site as a Buyer.
2. OVERVIEW OF PROXIBID SERVICES
Proxibid provides online auction services which allow Buyers who cannot be physically present at an auction site an opportunity to participate in the live auction through real-time webcast online bidding (?live bidding?) and allow Buyers who are unable to personally monitor the live auction webcast the opportunity to participate by entering an absentee bid (?pre-bidding?). Proxibid also provides timed online auctions services.
This Auction is operated by Proxibid on behalf of the Seller, Clear Channel Omaha.
Proxibid has the ultimate discretion over approving or rejecting Buyers for this Auction. Creating an account as a Buyer with Proxibid does not automatically guarantee that a Buyer will be approved for this Auction hosted by Proxibid.
Because the Internet occasionally experiences disruptions, Proxibid cannot guarantee the Auction Services will be available 100% of the time. Although Proxibid strives to provide the most reliable services possible, interruptions and delays in service are unavoidable and Proxibid disclaims any liability for damages resulting from such disruptions. Thus, you use the Auction Web Site at your own risk.
Proxibid reserves the right to not conduct business with any individual Buyer or groups of Buyers at any time for any reason. Proxibid may terminate or deny access to the Auction Web Site at any time at our sole and absolute discretion. Proxibid will not be liable for any direct, indirect or consequential damages that result from such actions.
3. BUYER OBLIGATIONS
Placing a bid is a legally binding obligation. If you are the successful Buyer, you agree to pay the amount of your bid plus all applicable taxes and charges in the time and manner set forth in the Auction Terms. Failure to make such payment shall be deemed a breach of this Agreement.
A Buyer may not remove an absentee bid (pre-bid) without the approval of the Seller or Proxibid, which may be granted or denied in each of their sole discretion. Proxibid retains the right to take any adverse action, including without limitation termination of a Buyer?s account, against Buyers who are deemed to be abusing bid-retractions. Buyers expressly acknowledge and agree that Proxibid makes no guarantee or representation regarding the effectiveness or success of pre-bids.
Proxibid is not responsible for any errors or omissions in the description or photography provided on the Auction Web Site or in Proxibid's bidding application. Due diligence to verify the condition and description of an item is the sole responsibility of the Buyer prior to placing any bid on this Auction Web Site.
Buyer agrees to keep Buyer?s user identification and password confidential and Buyer is solely responsible for any activity generated utilizing its account with Proxibid. Buyer represents and guarantees that any and all information supplied by Buyer to Proxibid is accurate.
5. AUCTION TERMS
Buyer agrees to the following Auction Terms:
1. Buyers must be at least 18 years of age.
2. Buyers are encouraged to bid only after they are completely satisfied as to origin, authenticity and condition. Questions regarding any item being sold should be directed to the auction staff at least 48 hours prior to the auction.
3. Buyer may participate in the Auction through Internet pre-bidding and live bidding. Buyer acknowledges and understands that such services may or may not function correctly during the Auction. Under no circumstances shall Buyer have any kind of claim against Seller or anyone else if the Internet service fails to work correctly before or during the Auction. Seller will not be responsible for any missed bids from any source. Internet Buyers, who desire to increase the chance that their bid is acknowledged during the Auction should use the pre-bidding feature.
4. Due to the complexity of modern electronics and digital photography it is often impossible to get an exact and consistent reproduction of color. Therefore, the only flawless manner to assess the color saturation and detail of any graphic is by personally viewing the subject. Seller will not be responsible for any variation between the catalog image and the actual piece.
5. Seller may postpone or cancel the Auction, withdraw any property from the Auction, or change any terms of the auction or particular conditions of sale prior to the Auction.
6. All announcements made during the Auction supersede all printed material.
7. If Seller determines that any opening bid is not commensurate with the value of the article offered, Seller may reject that opening bid and withdraw the article from sale; and, if having acknowledged an opening bid, Seller decides that any advance thereafter is not of sufficient amount, Seller may reject the advance.
8. Certain items in the Auction are being offered subject to reserve, which is the confidential minimum price below which such lot will not be sold.
9. Items may be offered with a ?minimum bid?, in which case, the Seller has agreed to sell the item to the highest bidder who bids at or above the minimum bid price.
10. Once a Buyer has won the bid, ownership of the item immediately passes to the Buyer who thereupon assumes full risk and responsibility and shall pay the full purchase price for the item. Buyer acknowledges and agrees that in order to complete the sale, it must provide full credit card information to Proxibid. Your credit card shall be processed through the PCI-compliant APN network. The record of sale, kept by Proxibid and/or APN, will be taken as absolute and final in all disputes. If Buyer has bid on a physical item, Proxibid will mail a voucher to the Buyer which voucher may be redeemed for the item at a physical stores location. If Buyer has bid on a gift certificate, Proxibid will mail Buyer a gift card. Buyer will pay the following fulfillment costs to Proxibid: $3.00 for the first certificate plus $1.00 for each additional certificate, up to $9.00 per winning bidder.
11. These Auction Terms shall constitute a legally binding contract between Buyer and Seller, which contract shall be construed and enforced in accordance with the laws of Nebraska, without giving effect to the conflicts of laws principles of such state.
12. If Buyer chooses to bid on mature audience items or items that are restricted to adult use, Buyer certifies that Buyer has the legal right to purchase such items in the state of Nebraska.
6. DISPUTE RESOLUTION
6.3 Disputes between Users. In the event of a dispute between you and Seller, you agree to use good faith efforts to resolve the dispute, including contacting Seller by reasonable means and allowing Seller a reasonable time to respond. If you are unable to resolve a dispute directly with Seller through your own good faith efforts, you may contact our Operations Support Center and follow this process:
? Open a Dispute - You must open a dispute within 45 calendar days of the date you made the payment for the item at the subject of the dispute.
? Respond to Proxibid?s requests for information in a timely manner - During the dispute process, Proxibid may require you to provide documentation to support your position. You may be asked to provide receipts, third-party evaluations, police reports, or any other information or documentation that Proxibid specifies.
? Comply with Proxibid?s shipping requests in a timely manner - For Significantly Not as Described (SNAD) Claims, Proxibid may require you, at your expense, to ship the item back to the Seller, or to Proxibid, or to a third party and to provide proof of delivery. For transactions that total less than $250, proof of delivery is confirmation that can be viewed online and includes the delivery address showing at least city/state or zip, delivery date, and the URL to the shipping company?s Web site. For transactions that total $250 or more, you must obtain signature confirmation of delivery.
? Dispute Resolution - Proxibid will make a decision in favor of you or the Seller within a reasonable time after a claim is filed and both you and Seller have provided all requested information. Proxibid retains full discretion to make a decision in favor of you or the Seller based on any criteria Proxibid deems appropriate. In the event that Proxibid makes a final decision in favor of you or Seller, each party must comply with Proxibid?s decision. Proxibid will generally require you to ship an item that you claim is Significantly Not as Described back to the Seller (at your expense), and Proxibid will generally require Seller to accept the item back and refund you the full purchase price plus original shipping costs. In the event Seller loses a claim, Seller will not receive a refund on his or her APN or Proxibid fees associated with the transaction. If Seller loses a SNAD Claim because the item sold is counterfeit, Seller will be required to provide a full refund to you. Seller liability will include the full purchase price of the item and original shipping cost (and in some cases, Seller may not receive the item back).
6.4 Assumption of Rights - If Proxibid pays out a claim, reversal or chargeback that you file against a recipient of your payment, you agree that Proxibid assumes your rights against the recipient and third-parties related to the payment, and may pursue those rights directly or on your behalf, at Proxibid?s discretion.
6.5 Release of Proxibid - If you have a dispute with Seller, you release Proxibid (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
7. INFORMATION COLLECTED BY PROXIBID
8. OWNERSHIP OF THIS WEB SITE
Proxibid and/or Seller owns, retains or licenses all rights to this Auction Web Site, and all content and materials contained on this Auction Web Site, including text, graphics, logos, audio clips, software server information, files, images, photos, works of authorship, links, or other materials. You acknowledge and agree that this Auction Web Site and the content and materials on this Auction Web Site are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by Proxibid and Seller, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the content or materials on this Auction Web Site. Use of the content or materials on this Auction Web Site for any purpose not expressly permitted in this Agreement is prohibited.
9. RELATIONSHIP BETWEEN PROXIBID AND SELLERS
Proxibid has no affiliation with or control over the Seller. Proxibid provides a service to Seller and Buyers by facilitating the connection between the Seller and the Buyer. Proxibid is not responsible for the content of any Seller?s postings. Proxibid does not review or evaluate the quality or origins of the items auctioned or verify the claims made by each Seller regarding its items.
Proxibid does not guarantee the accuracy of any of the postings or content on the Auction Web Site. No User has a claim against Proxibid for relying on these postings or content. Proxibid has the right to monitor the Seller?s postings, but is under no obligation to do so.
9.1 Auction Assistance Policy
9.2 Real Estate Auctions
AuctionGuard? is Proxibid's proprietary risk-assessment software that relies on FastData? and Financial Transmission Network, Inc., as well as a Buyer's history with the Proxibid's platform, to determine a Buyer's "score". Seller may limit eligibility for the Auction to Buyers with certain scores.
Buyer acknowledges and agrees that Buyer may be identified in Proxibid records in accordance with the Buyer?s AuctionGuard? score. Buyer further agree that, each time Buyer attempts to participate in the Auction, Buyer may be granted or denied access to the Auction based on Buyer?s AuctionGuard? score.
Any breach of this Agreement by Buyer may negatively impact Buyer?s AuctionGuard? score.
10. PROHIBITED USES OF THIS WEB SITE
When using this Auction Web Site you must obey all applicable federal, state and local laws. Any use of this Auction Web Site that violates any applicable laws will be grounds for discontinuing your rights to this Auction Web Site. This Auction Web Site was created and will be operated from the United States.
You are prohibited from utilizing this Auction Web Site for any illegal or unauthorized purpose or contrary to Proxibid?s policies and procedures (as published on the Auction Web Site periodically), including but not limited to the following:
a. Fraud/Deception - You may not engage in fraudulent, deceptive or intentionally disruptive or malicious activity of any kind;
b. Intellectual Property Infringement - You agree not to post any content to the Auction Web Site which infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
c. Offensive Content - You agree not to post any content to the Auction Web Site which is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another?s privacy, tortuous, contains obscene language or obscene references, contains explicit or graphic descriptions or accounts of sexual acts, or otherwise violates Proxibid?s rules or policies;
d. Compromise/Disruption of Auction Web Site - You are prohibited from engaging in activity that compromises the Auction Web Site, including but not limited to: any hacking, distribution of malicious software, spamming, mail bombing or crashing. You agree not to post any content to the Auction Web Site which contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third-party;
You may not engage in any activity designed to impede the use of the Auction Web Site by other Users. You are prohibited from engaging in any activity that jams this Auction Web Site, including overloading and flooding;
e. Unauthorized Linking - You may only link or create links from the Auction Web Site back to your own Web site. You cannot link or create or facilitate any other links without Proxibid's written permission;
f. Framing/Deep Linking - You are prohibited from framing or deep linking into the Auction Web Site, without our express written permission. You are not to place hyperlinks in your own postings;
g. Unauthorized Access - Any access to the Auction Web Site by means of any unauthorized process, including but not limited to manually scraping or utilizing spiders, bots or any similar devices, is prohibited unless Proxibid consents to such access use in writing;
h. Copying or Modifying Auction Web Site Content - Any duplication of the pages or modification of this Auction Web Site or the content of this Auction Web Site, without the advance written permission of Proxibid, is a violation of this Agreement;
i. Illegal Activity - You may not use the Auction Web Site or Proxibid?s services for any purpose or in any manner which violates any local, state, national, or international laws and regulations;
j. Shill Bidding - Seller is prohibited from bidding in any auction Seller is conducting if the purpose of such bidding is to falsely or maliciously increase the bid price for any auctioned item, and Seller agrees not to encourage or permit any of Seller?s officers, directors, shareholders, employee, agents, or other parties to bid in any auction for the purpose of increasing the bid price (sometimes referred to as ?shill bidding?). To the extent Seller (or Seller?s agent) does bid in any auction and Seller is the successful bidder, Seller is liable for the purchase price and all associated expenses of the auctioned item if Seller is the highest bidder, regardless of Seller?s intent when making the bid.
11.1 Prohibited Actions - In connection with your use of the Auction Web Site, your account, or Auction Services, or in the course of your interactions with Proxibid, Seller, other Users, or third-parties, you will not:
a. Breach this Agreement or any other agreement or policy that you have agreed to with Proxibid;
b. Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination, false advertising, or the Uniform Commercial Code);
c. Use our sites, services or tools if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using our sites, services or tools;
d. Infringe Proxibid?s or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
f. Act in a manner that is defamatory, threatening, harassing, or libelous (including personal information);
g. Provide false, inaccurate or misleading information;
h. Send or receive what we reasonably believe to be potentially fraudulent funds;
i. Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
j. Attempt to double dip during the course of a dispute by receiving or attempting to receive funds from the Seller, bank or credit card issuer for the same transaction;
k. Use an anonymizing proxy;
l. Control an account that is linked to another account that has engaged in any of these Prohibited Actions;
m. Conduct your business or use Auction Services in a manner that results in or may result in complaints, disputes, reversals, chargebacks, fees, fines, penalties and other liability to Proxibid, other Users or third-parties;
n. Integrate the Auction Services in a manner inconsistent with Proxibid integration guidelines;
o. Use your account, Auction Services, or APN, in a manner that Proxibid, Visa, MasterCard, American Express, Discover or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules;
p. Provide yourself a cash advance from your credit card (or help others to do so) through APN;
q. Access Auction Services from a country that is sanctioned;
r. Disclose or distribute another User's Information to a third-party, or use the Information for marketing purposes unless you receive the User?s express consent to do so;
s. Distribute or post spam, unsolicited, or bulk electronic communications, chain letters, pyramid schemes to a User or use the Auction Services to collect information or data for sending, or assisting in sending, unsolicited email to third-parties;
t. Take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
u. Facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
v. Use any robot, spider, other automatic device, or manual process to monitor or copy the Auction Web Site without our prior written permission;
w. Use any device, software or routine to bypass our robot exclusion headers or file, or interfere or attempt to interfere with the Auction Web Site or Auction Services, or the interests or property of Proxibid Users;
x. Take any action that may cause us to lose any of the services from our internet service providers, APN, or other suppliers;
y. Use the Auction Services to test credit card behaviors;
z. Post content or items in an inappropriate category or areas on our sites and services;
aa. Fail to pay for items purchased by you, unless the Seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot authenticate the Seller's identity;
cc. Manipulate the price of any item or interfere with other Sellers? listings;
dd. Circumvent or manipulate our fee structure, the billing process, or fees owed to Proxibid;
ee. Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the sites or using it for purposes unrelated to Proxibid);
ff. Transfer your Proxibid account (including feedback) and User ID to another party without our consent;
gg. Export or re-export any Proxibid tools except in compliance with the export control laws of any relevant jurisdictions;
hh. Fail to use good faith to attempt to resolve a dispute with another User, in accordance with the Section above entitled ?DISPUTE RESOLUTION?.
(collectively, the ?Prohibited Actions?).
11.2 Proxibid Action on Accounts - If we have reason to believe you have engaged in any Prohibited Actions, in addition to our termination rights and all other remedies we may have under this Agreement, we may take various actions to protect Proxibid, APN, other Users, other third-parties, or you from complaints, chargebacks, disputes, fees, fines, penalties, and any other liability. The actions we may take include but are not limited to the following:
a. We may close, suspend, or limit your access to your account or the Auction Services (such as limiting access to posting catalogs, use of your payment methods, and/or your ability to send or receive money through APN or remove financial Information);
b. We may contact Users who have purchased goods or services from you, contact your bank or credit card issuer, and/or warn other Users, law enforcement, or impacted third-parties of your actions;
c. We may update inaccurate Information you provided us;
d. We may refuse to provide the Auction Services to you in the future;
e. We may take legal action against you.
12. SYSTEM INTEGRITY
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of this Auction Web Site or any transaction conducted on the Auction Web Site. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share your password with any third-parties or use your password for any unauthorized purpose. The Auction Web Site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our pages or the content contained herein without our prior written consent. You agree that you will not use any device, software or routine to interfere with the proper working of the Auction Web Site.
13. INTELLECTUAL PROPERTY
The software and source codes used on this Auction Web Site are the intellectual property of Proxibid. Any modification or attempt to modify or acquire this Auction Web Site through duplication, transfer, reverse engineering, dis-assembly, or otherwise is prohibited. Users may not create derivative works from this Auction Web Site. Users may not attempt to access or duplicate the software available through this Auction Web Site in an attempt to sell or transfer any rights in such software.
The trademarks and service marks found on this Auction Web Site site are property of Proxibid and/or Seller whether registered or unregistered. Neither Proxibid nor Seller grants you permission to use these trademarks or service marks. You should not interpret anything in this Auction Web Site as granting a license or right in these trademarks. Licenses should not be considered granted on theories of implication or estoppel. The "Proxibid" logo and the trademark "Proxibid" may not be used in any way without express written permission from Proxibid.
Any content contained within this Auction Web Site is covered by Proxibid's and/or Seller?s registered copyright. Neither Proxibid nor Seller releases its legal copyrights in any way, either by implication, estoppel or otherwise. Any attempt to modify or subvert the content of this Auction Web Site is a violation of Proxibid?s and/or Seller?s copyright. This copyright extends to the software programs and the source codes contained within this Auction Web Site.
You agree to indemnify, defend and hold Proxibid, Seller, and their respective officers, directors, employees, agents, shareholders, partners, affiliates, representatives and agents (the "Indemnified Parties") harmless from any claims, causes of action, lawsuit or damages (including attorney?s fees) incurred by or imposed against the Indemnified Parties resulting from your use or misuse of the Auction Web Site, Auction Services, breach of this Agreement, and/or breach of the Auction Terms. Proxibid and Seller reserve the right, at each of their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Proxibid and Seller in asserting any available defenses.
15. DISCLAIMERS OF WARRANTY
ALL MATERIALS, INFORMATION, SOFTWARE, AND PRODUCTS INCLUDED ON OR AVAILABLE THROUGH THIS AUCTION WEB SITE (THE ?CONTENT?) AND ALL AUCTION SERVICES ARE PROVIDED ?AS IS? AND ?AS AVAILABLE? FOR YOUR USE. THE CONTENT AND AUCTION SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PROXIBID DOES NOT WARRANT THAT THE CONTENT AND AUCTION SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE AUCTION WEB SITE WILL BE UNINTERRUPTED, ERROR FREE, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE AUCTION WEB SITE AND AUCTION SERVICES IS SOLELY AT YOUR RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
16. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PROXIBID OR SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PROXIBID AND/OR SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE AUCTION WEB SITE OR AUCTION SERVICES. UNDER NO CIRCUMSTANCES WILL PROXIBID?S AND SELLER?S AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH YOUR USE OF THE AUCTION WEB SITE OR AUCTION SERVICES EXCEED THE FEES ACTUALLY PAID BY YOU IN CONSIDERATION FOR THE AUCTION SERVICES.
Because certain jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, Proxibid?s and Seller?s liability in such jurisdictions shall be limited to the extent permitted by law.
17. THIRD-PARTY SITES
This Auction Web Site may provide links to other third-party Web sites. These third-party Web sites are not under the control of Proxibid or Seller, and you acknowledge and agree that neither Proxibid nor Seller is responsible for the accuracy, copyright compliance, legality, decency, or other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of the site by Proxibid or Seller or any association with its operators.
Proxibid reserves the right, at its sole and absolute discretion, to terminate this Agreement or your access to all or part of the Auction Web Site or Auction Services for any reason and at any time effective immediately, or to discontinue temporarily or permanently providing the Auction Services, with or without notice.
19. ELECTRONIC MEANS
You, Seller, and Proxibid desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by Proxibid and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of Nebraska.
20. AMENDMENT OF TERMS AND CONDITIONS
Proxibid has the right to amend this Agreement at any time. Any amendment will be accomplished by updating the pages you are looking at now. Please visit this page periodically in order to monitor any changes that may have been made to this Agreement, particularly before you participate in an auction. Every time you use this Auction Web Site, you are agreeing to the Agreement as it exists at that time. In the event of any material amendment to the Agreement which would adversely impact your rights or obligations hereunder, you will be required to affirmatively accept the amended Agreement in order to continue to use the Auction Web Site or Auction Services.
21. INTEGRATION AND SEVERABILITY
This Agreement, together with the Proxibid Unified User Agreement (available here: http://www.clearchannel.com/Corporate/PressRelease.aspx?PressReleaseID=3029&p=hidden/#privacy), constitutes the entire agreement between you, Seller, and Proxibid with respect to the Auction Web Site and Auction Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you, Seller and Proxibid with respect to the Auction Web Site and Auction Services If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
22. DISPUTES BETWEEN YOU AND PROXIBID.
If a dispute arises between you and Proxibid, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and Proxibid regarding Auction Services may be reported to Customer Service online through the Proxibid Operations Support Center at any time by emailing firstname.lastname@example.org or by calling (877) 505-7770 from 7:00 AM to 11:00 PM, Central.
In addition to reporting complaints against Proxibid directly to Proxibid as described above, you may report complaints to the Department of Justice Attorney General by contacting them in writing at Room 2115 State Capital P.O. Box 98920 Lincoln, NE 68059-8920, or by telephone at (402) 471-2682.
For any claim arising under this Agreement (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00 USD, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
24. IMPROPERLY FILED LITIGATION
All claims you bring against Proxibid must be resolved in accordance with this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed a breach of this Agreement. Should you file a claim contrary to this Agreement, Proxibid may recover attorneys? fees and costs (including in-house attorneys and paralegals); provided that Proxibid has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
25. INSOLVENCY PROCEEDINGS
If any proceeding by or against you is commenced under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, Proxibid will be entitled to recover all reasonable costs or expenses (including reasonable attorneys? fees and expenses) incurred in connection with the enforcement of this Agreement.
26. CHOICE OF LAW AND FORUM
This Agreement is governed by the federal laws of the United States of America and the laws of the state of Nebraska. You expressly agree that the exclusive jurisdiction for any claim or action involving Proxibid which arises out of or relates to this Agreement or your use of the Auction Web Site or Auction Services shall be filed only in the state or federal courts located in Douglas County, Nebraska, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigation any such claim or action.
27. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(C)(2), notifications of claimed copyright infringement should be sent to Proxibid?s Designated Agent. For more information, contact:
4411 South 96th Street
Omaha, NE 68154
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