Effective Date. The effective date of this Agreement is March 12th, 2018.
Agreement. Welcome to EstateSales.NET! Vintage Software, LLC ("Vintage Software" or "Company") recommends that you read the following terms and conditions carefully. By accessing or using the EstateSales.NET website, the EstateSales.NET Service, including any software applications made available by Vintage Software (together, the "Website" or "Service"), however accessed or used, you agree to be bound by these terms (the "Terms of Service" or the "Agreement"). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between Vintage Software and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.
Arbitration and Remedies. These terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 23 (Dispute Resolution) for full details.
By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
Corporate Use. If you are using the Service on behalf of a company, you represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
Listing and Marketplace Platform.
Listing Platform. EstateSales.NET offers a platform for users to publish and review information (“Content”) about various commercial events, including estate sales (the “Sales Event(s)”).
Marketplace Platform. Company may also offer an online marketplace where users of the Service (“Sellers”) can list goods for sale, and where other users of the Service (“Buyers”) can purchase those goods (“Product Listing”). The actual transaction or sales contract for an item listed in a Product Listing is solely between the Seller and the Buyer.
Company’s Limited Role. Company’s role with respect to Sales Events and Product Listings is limited. While Company assists users in publishing information about Sales Events and Product Listings through the Service, Company is not directly involved in the creation or selection of any Content about Sales Events or Product Listings, and Company is not the merchant or the purchaser of any good or service identified in a Sales Event or Product Listing. Without limitation, Company does not guarantee that it will pre-screen publishers, vendors, or consumers regarding any Sales Event or Product Listing. Nor does Company guarantee the identity of any user. Company does not necessarily prescreen the Content and/or information provided by users. Company does not directly control the quality of any aspect of any Sales Event or Product Listing, or the goods, services, and logistics associated with any Sales Event or Product Listing, including the accuracy of any Content related to any Sales Event or Product Listing. Company does not guarantee that any Buyer or Seller will fulfill any statements published through the Service about any Sales Event or Product Listing. Company does not take or transfer ownership of items or liability. For additional information, please carefully review Section 20 (Disclaimers; Limitation of Liability).
Sellers’ and Buyers’ Responsibilities. Unless stated otherwise in this Agreement, Sellers are responsible for all necessary licenses, including any auctioneer licenses; taxes; return policies, returns, replacements, and refunds; product and service warranties; and customer service associated with any Sales Event or Product Listing, or any good or service purchased at any Sales Event or Product Listing. Buyers are responsible for conducting their own due diligence regarding any Sales Event or Product Listing.
Subject to your compliance with these Terms of Service, Company grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Company websites (located at the following URLs: https://www.estatesales.net/), and to use the Service. No part of the Service, including the Website, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior express written consent of Company. All rights not expressly granted in this Agreement are reserved by Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Company, you have breached any provision of this Agreement.
By posting content to the Website and/or using the Service for other users to view, you automatically grant to Company a perpetual, non-exclusive, fully paid-up, worldwide right and license to display, reproduce, store, play, adapt, prepare derivative works of the content posted in any media now known or hereafter created.
No Reliance on Third Party Content. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will Company be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Vintage Software, LLC and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the "Company Parties") from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
User Account, Accuracy, and Security.
User Account. To access and use certain parts of the Service, you may be asked to create a user account ("Account"), and to provide information that personally identifies you ("Personal Information").
No Pseudonyms. You must use your real name on EstateSales.NET; pseudonyms are not allowed. Any use of a pseudonym violates Section 9.2 (Account Information Accuracy) and is cause for suspension or deletion of your Account.
Account Security. You will also be asked to provide a username, password, and possibly other information to secure your Account. You are entirely responsible for maintaining the confidentiality of this security information, including your password. You may not use the username or password of any other person, nor may you share your username and password, nor may you circumvent any authentication mechanism requiring the entry of usernames, passwords, or any other information to gain unauthorized access to the Service. You agree to notify Company immediately of any unauthorized use of your Account. Company shall not be liable for any loss that you incur because of someone else using your Account, either with or without your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of your Account.
Interactions with Other Users. You are solely responsible for your interactions with other EstateSales.NET users. You acknowledge and understand that Company has not, and does not, in any way guarantee that it will: (a) screen its users; (b) inquire into the backgrounds of its users; or (c) review or verify the statements of its users. You agree to exercise reasonable caution in all interactions with other users, particularly if you decide to meet another user in person. Company does not represent, warrant, endorse, or guarantee the conduct of its users. In no event shall Company be liable for indirect, special, incidental, or consequential damages arising out of or relating to any user's conduct in connection with such user's use of the Service, including, without limitation, bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or any other damages resulting from communications or meetings between users.
Consent to Receive Electronic Communications from Company. By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you expressly consent to receive electronic and other communications from Company, over the short term and periodically, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to support@EstateSales.NET. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
Consent to Receive Electronic Communications from Users. Without limitation, by registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you consent to receive electronic communications, including email, instant messages, video conferencing, and other personal messages from other users of the Service.
Consent to Receive Electronic Communications from Company Partner Marketers. Without limitation, by registering for the Service and/or by providing your name, email, postal or residential address, and/or phone number through the Service, you consent to receive, and openly and knowingly solicit, electronic communications, including email communications, from Company partner firms which may include third party marketing companies, affiliates, advertising agencies, and data aggregation companies regarding their services, including offers, promotions, and other related matters. You may opt out of receiving electronic communications at any time by (a) following the unsubscribe instructions contained in each communication; or (b) sending an email to support@EstateSales.NET.
Agreement to Pay Fees. You agree to pay Company all fees identified to you through your use of the Service and to which you agreed for your use of the Service. If you are a Seller of an item listed in a Product Listing, you agree to pay all fees arising out of the sale of that item, regardless of whether the sale is finalized through the use of the Service.
Authorization to Charge. You authorize Company to charge your chosen payment provider (“Payment Method”) for the Service. You agree to make payment using that selected Payment Method. Company may correct any billing errors or mistakes that it makes even if it has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined in part by the agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, Company may in its discretion terminate or suspend your account immediately. If Company successfully disputes the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your account or reinstated.
Recurring Charges. You may have selected to pay for your use of the Service by recurring monthly charges. If you made that selection, you understand and agree that your Payment Method will be charged every month for the charges identified to you through your use of the Service. If you wish to cancel the Service and stop the recurring charges you may send an email to support@EstateSales.NET.
Changes to Company's Fees. Company reserves the right, in its sole discretion, to change the fees and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds, nor are there credits for partially used membership periods.
No Waiver. Company's decision not to exercise any specific right or require performance of any specific obligation under this Agreement, including collecting regularly recurring fees from you, shall not affect Company's later ability to exercise those rights or to require performance at any later time. Company's waiver of your breach shall not constitute a waiver of any later breach by you, or by any other user of the Service. By using the Service, you authorize Company or its payment processor to charge Company's fees to the payment method you provide, in addition to applicable sales and other taxes.
Limited Period to Challenge Discrepancies. In the event of a discrepancy pertaining to completed purchases you make through the Service, you have 15 business days from the date of the completed purchase to send notification to Company about the discrepancy, after which all payments or lack of payments are otherwise final and no longer subject to change. You agree to waive, and waive, any claims arising from such discrepancies by failing to provide timely written notification to Company within the 15 business day time period. You can notify Company of discrepancies only by sending an email to support@EstateSales.NET detailing the amount owed to you and the amount tendered to you.
Third Party Websites. The Service is linked with the websites of third parties ("Third Party Websites"), some of which may have established relationships with Company and some of which may not. Company does not have control over the content and performance of Third Party Websites. Company has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, Company does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. Company disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
If you raise or file any claim against Company for conduct that a Court of Competent Jurisdiction later finds to constitute an "exercise of a publisher's traditional editorial functions," or the legal equivalent, you agree to fully and immediately compensate Company for all losses, liability, damages, costs, and expenses, including without limitation all attorneys' fees and expenses in defending the action and resolving the matter. If you fail to compensate Company for any such claim, you agree and authorize Company to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
Objectionable and Unsuitable Content.
Inappropriate Content. You agree that Company, in its sole discretion, may determine that a Sales Event or Product Listing does not fit within the scope of the Service or is out of place or inappropriate for the Service (“Inappropriate Listing”). Company reserves the right to remove, without any notice, and in its sole discretion, any Inappropriate Listing.
Prohibited Uses. Company imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:
harassing or stalking any person, or contacting any person who has requested not to be contacted
providing false, misleading, or inaccurate information to Company or to any other person in connection with the Service
impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity
modifying any advertisement posted through the Service
harvesting or otherwise collecting information about users, including email addresses and phone numbers
without express written permission from Company, using or attempting to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites
accessing content or data not intended for you, or logging into a server or account that you are not authorized to access
attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization
interfering or attempting to interfere with the use of the Service by any other user, computer, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities
using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services
forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers)
while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising
attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable
creating additional accounts to promote your (or another's) business, or causing others to do so
paying anyone for interactions on the Service
Compliance with Law. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
Trademarks. Vintage Software and the Vintage Software logo (collectively, the "Company Marks") are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Company, and you agree to assign, and do assign, all such goodwill to Company. You shall not at any time, nor shall you assist others to, challenge Company's right, title, or interest in, or the validity of, the Company Marks.
Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Vintage Software logo, design, text, graphics, and other files, and their selection, arrangement, and organization, are either owned by Company or are the property of Company's licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials.
As Company asks others to respect its intellectual property rights, Company respects the intellectual property rights of others. Company follows the notice and takedown procedures in the Digital Millennium Copyright Act ("DMCA").
If you believe content located on or linked to by the Service violates your copyright, please immediately notify Company by emailed DMCA takedown notice ("Infringement Notice"), providing the information described below. If Company takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to Company.
The DMCA requires that all Infringement Notices must include the following:
A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
An identification of the copyright claimed to have been infringed;
A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Company to find and positively identify that material;
Your name, address, telephone number, and email address; and
A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
Infringement Notices should be sent to support@EstateSales.NET with the subject line "DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY'S NAME)."
Company will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
Disclosure. All received Infringement Notices may be posted in full to the Lumen database ( https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.
Disclaimers; Limitation of Liability.
No Warranties. Company, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Company nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. Company disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. Company shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Company, Company Parties, or EstateSales.NET users, or their agents or representatives.
Your Responsibility for Loss or Damage; Backup of Data.
You agree that your use of the Service is at your sole risk. You will not hold Company or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
Importantly, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
Limitation of Liability. In no event shall Company or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Company or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Company and you. The Service would not be provided without such limitations.
Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Company or between you and any of Company's licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Company's licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Company policies, and with any applicable laws or regulations. You further represent and warrant that your use of the Service will comply, where applicable, with sale type rules ( https://www.estatesales.net/help/saletypes.aspx), which are incorporated into this Agreement by reference.
Indemnity by You.
Without limiting any indemnification provision of this Agreement, you (the "Indemnitor") agree to defend, indemnify, and hold harmless Company and the Company Parties (collectively, the "Indemnitees") from and against any and all Claims (as defined in Section 23 (Dispute Resolution)), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Company, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
Without limitation, the Indemnitor also agrees to compensate Company for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 18 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
Dispute Resolution. Additional Definitions for Dispute Resolution.
"AAA" means the American Arbitration Association.
"Claim" means any claims, actions, demands, causes of action, and other proceedings arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
"Court of Competent Jurisdiction" means any federal or state court that has jurisdiction over the subject matter, and that is located in the State of Missouri.
"Lawsuit" means a legal proceeding against a Party related to this Agreement.
Binding Arbitration. Any Claim shall be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules, which are available at the AAA website https://www.adr.org/aaa/faces/rules, or by calling the AAA at 1-800-778-7879. Judgment on the arbitrator's award may be entered in any Court of Competent Jurisdiction. Claims shall be heard by a single arbitrator. The place of arbitration shall be Jackson, Missouri. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in-person hearings. The prevailing party shall be entitled to an award of reasonable attorney fees. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties. Your rights will be determined by neutral arbitrator, and not by a judge or jury, and the arbitrator shall determine all issues regarding the arbitrability of the Claims. The one exception to this exclusivity of arbitration is that you have the right to bring an individual claim against Company in a small-claims court of competent jurisdiction. All legal proceedings, whether in arbitration or small-claims court, shall be governed by the laws of Missouri. You are responsible for paying your portion of the fees set forth in the AAA’s fee schedule for any arbitration, and Company will pay all remaining fees, however, if your Claim is for less than $1,000, Company will pay all fees. If you believe you cannot afford the AAA’s fee, you may apply to the AAA for a fee waiver.
No Joinder of Claims. You and Company agree that any arbitration (or small claims action) shall be limited to each Claim individually. YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. You and Company agree that each may only bring claims against the other in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If this specific provision is found to be unenforceable by a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party. Any election to arbitrate by one party shall be final and binding on the other. No arbitration shall be joined with any other arbitration. There is no right for any Claim to be arbitrated on a class-action basis, or to employ class action procedures. There is no right of authority for any Claim to be brought in a purported representative capacity on behalf of either the general public or any other individuals.
Judicial Remedies in Aid of Arbitration or Equitable Relief. As exceptions to Section 23.2 (Binding Arbitration), any Party may seek, in a Court of Competent Jurisdiction, provisional remedies in aid of arbitration (including orders to stay a court action, to compel arbitration, or to confirm an arbitral award) or equitable relief (including a temporary restraining order, preliminary injunction, or other interim or conservatory relief).
Frivolous Claims. If the arbitrator or a Court of Competent Jurisdiction finds that the substance of a Claim or the relief sought is frivolous, or that a Claim is brought for an improper purpose (as measured by the standards of Rule 11(b) of the Federal Rules of Civil Procedure and related case law), then the party bringing that Claim shall pay all arbitrator fees, attorneys' fees, and costs related to that Claim.
By Company. Without limiting any other provision of this Agreement, Company reserves the right to, in Company's sole discretion and without notice or liability, terminate this Agreement and deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement's representations, warranties, or covenants. This termination is automatic, and does not require any action by Company.
By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Company notice of your intention to do so, in the manner required by Section 25 (Notices).
Effect of Termination.
Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, Company may, but has no obligation to, in Company's sole discretion, rescind any services and/or delete from Company's systems all your Personal Information and any other files or information that you made available to Company or that otherwise relate to your use of the Service. Upon termination, you shall stop any use of the Service.
Termination upon your breach of any of this Agreement's representations, warranties, or covenants will also result in marketplace payments being terminated in the sole discretion of Company, and your marketplace payments will not survive termination of this Agreement in the sole discretion of Company.
After termination, Company reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
Legal Action. If Company takes legal action against you in connection with any actual or suspected breach of this Agreement, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys' fees. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
Notices. All notices required or permitted to be given under this Agreement must be in writing.
Company shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Company. You agree that any notice received from Company electronically satisfies any legal requirement that such notice be in writing.
You bear the sole responsibility of ensuring that your email address on file with Company is accurate and current, and notice to you shall be deemed effective upon the sending by Company of an email to that address.
You shall give any notice to Company by email to support@EstateSales.NET.
Entire Agreement. This Agreement constitutes the entire agreement between Company and you concerning your use of the Service.
Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, that decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Company, or by the unilateral amendment of this Agreement by Company along with the posting by Company of that amended version.
No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Company. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
Independent Contractors. You and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Company's licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 7 (No Reliance on Third Party Content), Section 15 (Third Party Websites), Section 20.4 (Application of Disclaimers).
Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Company and Company's licensors and suppliers, and would therefore entitle Company or Company's licensors or suppliers, as the case may be, to injunctive relief.
Interpretation. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.