1. Agreement. These Terms of Service create a contract (the “Agreement”) between you, the user, and MyVendue, LLC, a Wisconsin limited liability company (“MyVendue”). MyVendue may also be referred to as “we” or “us.” This Agreement and all policies and additional terms posted on and in our site, applications, and services (collectively "Services") set out the terms upon which you may access and use our Services. Your use of our site and Services is deemed to be your agreement to comply with the terms of this Agreement when accessing or using our Services. You may be referred to herein as “you” or a “user” or as a “seller” or “buyer,” as applicable.
2. Role of MyVendue. MyVendue is an online auction site that facilitates auctions or other sales of products between buyers and sellers. The actual contract for sale is directly between the seller and buyer. We are not a party to the transaction, and we are not a seller or buyer or a traditional auctioneer. This Agreement governs your use of our site and Services. We have no control over and do not guarantee the existence, legality, quality, or safety any items offered for sale on the site; the accuracy of any user’s 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. Your use of our Services is at your own risk.
3. Legal Authority Binding Nature of Auctions. All users of our Services must be at least eighteen (18) years of age and able to form legally binding contracts. All parties bound by terms of completed auctions. As a seller, you must sell your product to the winner of the auction or other agreement for the sale of the product. As a buyer, you must pay for product(s) for which you are the successful bidder.
4. Corporate Accounts. If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this Agreement.
5. Payment. Credit is not provided by MyVendue. All financial arrangements are entirely between the buyer and seller
6. Listings. As a seller, you shall list product(s) for sale in compliance with all MyVendue listing policies. You agree that you are fully responsible for the accuracy and content of your listing on our Services and for all aspects of the item(s) sold. Content that violates any of our policies may be modified or removed in our sole discretion. Auctions will remain on our Site until the auction end date stated on your listing or the “Sell it Now” amount is reached, at which time the listing will be promptly removed from the Site. Any auction posted without an end date may be taken down by MyVendue in our sole discretion.
7. Terms of Sale. As a seller, you shall clearly and conspicuously state all material terms of sale for your products, including, but not limited to, period/length of time, auction end date, “Sell it Now” amount, price, payment methods, warranty terms, shipping costs, return policy, and any other relevant or pertinent items related to the products or services provided by you. As a seller, you are fully responsible for arrangements for shipping and returns. We do not play a role in the shipping or return process.
8. Warranty. As a seller, you shall be solely responsible for providing any offered warranty for the products sold by you, or for clearly stating that no warranty is provided.
9. Prohibited Items. As a seller, you shall not sell any illegal products or services. Weapons or materials that we determine to be pornographic, distasteful, or offensive are prohibited and may be removed from the Site at our sole discretion. You will promptly remove all listings for any product which has been recalled. You may not sell real estate or cars on MyVendue without our prior authorization.
10. Sales Tax. As a seller, you are solely responsible for charging sales taxes required for the sale of your products or services through MyVendue. Each state has its own laws imposing sales tax, and laws vary widely by state. MyVendue is not responsible for charging or collecting sales taxes for you or for advising you whether or not to charge sales tax. MyVendue will provide you with the ability to add sales tax on your goods or services, but it is your sole responsibility to understand sales tax laws applicable to you and to collect and pay sales taxes in accordance with the law. Notwithstanding the foregoing, in any jurisdiction where MyVendue has an obligation to collect sales taxes on sales you make using our Services, we may collect such sales taxes from you via the payment method on file or via any other means available to us.
11. Terms. As a buyer, you are responsible for reading the full item listing before making a bid or committing to buy. You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted).
12. Payment. As a buyer, you shall pay for any item purchased by you, other than for a valid reason set forth our policies. There are time and expenses incurred in taking down an auction if you are a successful bidder. If you do not pay for the products you purchase, you may be liable for costs of collection and damages.
13. Abuse of Services. If we believe you are abusing MyVendue and/or our Services 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, remove, not display, and/or demote listings, assess fees, and take technical and/or legal steps to prevent you from using our Services. Misuse of our Services includes harvesting or otherwise collecting information about users without their consent or circumventing MyVendue by providing your contact information or asking a buyer for their contact information in the context of buying or selling outside of MyVendue. We may cancel accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion. We reserve the right to enforce policies as we deem appropriate.
14. MyVendue IP. You shall not infringe upon the copyright, trademark, patent, publicity, database, and/or any other intellectual property rights that belong to MyVendue. Actions that constitute infringement include, without limitation, reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to us or someone else. The name "MyVendue" and associated marks, logos, trade dress, designs, and phrases belong to MyVendue and may not be used without our prior express written consent.
15. MyVendue Fees. You will pay us a fee for the use of our Services, typically on a percentage basis, as set forth by us, which may be changed by us from time to time by posting the revised fees. Fee changes for active listings require advanced notice of seven (7) days; however, no advance notice required for temporary promotions or any changes that result in the reduction of fees. Sellers are liable for transaction fees arising out of all sales made using some or all of our Services, even if sales terms are finalized or payment is made outside of our site. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of our site, you may be liable to pay a fee applicable to that item given your usage of our Services for the introduction to a buyer.
You must have a payment method on file when selling through our Services 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 amounts owed plus late fees by charging other payment methods on file with us, retain collection agencies and legal counsel, suspend or limit Services. We 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.
16. International Transactions. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items
17. Use of Information. Our collection, use, disclosure, retention, and protection of your personal information is governed by our User Privacy Notice. We may share certain of your information with authorized service providers as stated in our User Privacy Notice. We may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf for quality control and training purposes, or for our own protection.
18. 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 our Services. Additionally, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
19. License Content. When you list a product for sale on the site or by otherwise using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to use such content in connection with our provision of our Services, in any media format. You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and that such content is accurate. You represent and warrant that use of any such content by us, our users, or others in contract with us does not and will not infringe any intellectual property rights of any third party. We are not responsible and assume no liability for any content provided by you or any third party.
20. Claims for Infringement. MyVendue expects that its users do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, you may submit via the website or email to MyVendue@protonmail.com.
21. Disclaimer of Warranties; Limitation of Liability. MyVendue endeavors to provide its Services in a secure and properly functioning manner, provided, however, that we cannot guarantee the continuous operation of or access to our Services. Such functionality is subject to delays beyond MyVendue's control. You agree that your use of the Services will be at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude 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.
In addition, to the extent permitted by applicable law, in no event shall MyVendue or its officers, directors, members, agents or employees be liable to you or any third party under any claim at law or in equity for any consequential or indirect 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), and all such damages or losses are expressly excluded by this Agreement whether or not they were foreseeable or whether we were advised of such damages or losses.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Regardless of the foregoing, if we are found to be liable, our liability to you or to any third party is limited to the amount of fees in dispute between us (and which shall never exceed the purchase price of the item for which the dispute is related).
22. Indemnity. You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, members, agents, and employees) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of our Services or your breach of any law or the rights of a third party.
23. General.
a. Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
b. Transfer. We may assign this Agreement in our sole discretion. You may not transfer your MyVendue account to another party without our prior express written consent.
c. Amendment. We may amend this Agreement at any time by posting the amended terms on our site with the effective date of the amendment. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by you and an MyVendue representative duly authorized to agree to such an amendment. The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the MyVendue Service.
d. Entire Agreement. The Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and MyVendue, and supersede all prior understandings and agreements of the parties. No other terms shall be incorporated herein.
24. Survival. The following Sections survive any termination of this Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, Legal Disputes, and General.
25. Legal Disputes. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS BETWEEN YOU AND MYVENDUE WILL BE RESOLVED. You agree that any claim or dispute at law or equity that has arisen, or may arise, between you and MyVendue (or any related third parties) that relates in any way to or arises out of this or previous versions of this Agreement, your use of or access to the Services, the actions of MyVendue or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
a. Governing Law. Except to the extent inconsistent with or preempted by federal law, the laws of the State of Wisconsin, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and MyVendue, except as otherwise stated in this Agreement.
b. Agreement to Arbitrate. You and MyVendue each agree that any and all disputes or claims that have arisen, or may arise, between you and MyVendue (or any related third parties) that relate in any way to or arise out of this or previous versions of the Agreement, your use of or access to our Services, the actions of MyVendue or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual basis.
c. The arbitration will be administered by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA's Commercial Arbitration Rules. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court set forth in Sub. (f) below shall select the administrator.
d. A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute ("Notice"). The Notice to MyVendue must be sent to MyVendue Inc., c/o Davis & Kuelthau, s.c. 2800 East Enterprise Avenue, Appleton, Wisconsin 54913. MyVendue will send any Notice to you to the physical address we have on file associated with your MyVendue account; it is your responsibility to keep your physical address up to date. If you and MyVendue are unable to resolve the claims described in a valid Notice within 30 days after MyVendue receives that Notice, you or MyVendue may initiate arbitration proceedings by mailing notice to the opposing party to the above address.
e. The arbitration hearing shall be held electronically, if possible, or if not permitted, in Appleton, Wisconsin, USA
f. All claims or disputes that are not subject to the Agreement to arbitrate above and all matters brought pursuant to and in aid of the Agreement to Arbitrate will be resolved exclusively by a state or federal court located in Brown County, Wisconsin. You and MyVendue agree to submit to the personal jurisdiction of the courts located within Brown County, Wisconsin for the purpose of litigating all such claims, disputes, or matters.
Effective Date: ______, 2023
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