Contract Terms and Conditions
The following Terms and Conditions are incorporated into the Marketplace Solutions Agreement between Proxibid and Client (the “Agreement”) with regard to the provision of Solutions by Proxibid.
- Fees and Payment Terms
- Fee. Client agrees to pay Proxibid the fees for the Solutions which are utilized from time to time by Client during the term of the Agreement. Fees for various Solutions are identified at Exhibit A to the Agreement, and as set forth at https://discover.proxibid.com/advertising. Fees may be modified by Proxibid upon thirty (30) days written notice to Client.
- Non-Paying Buyer. In the event of a non-paying buyer with a successful bid or offer in excess of the Threshold set forth in the Marketplace Solutions Agreement, Client shall submit a non-paying buyer form to Proxibid within 10 days of the close of the event, to enable mediation, If following such action (including timely submission of the form by Client) Proxibid is unsuccessful in collecting the payment amount from the buyer, and Client is not otherwise at fault in relation to such bid or offer, Proxibid will waive the applicable Internet Premium listed on Exhibit A. In no event does Proxibid assure the collectability of any sum from any buyer.
- Late Payment. Payment of invoices delivered by Proxibid is due within fifteen days of the date of the invoice. If payment of any undisputed amount is not paid within twenty-five (25) days from the date of an invoice, (i) late charges will accrue at a rate equal to the lesser of 1.5% each month or the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, and (ii) the Solutions may be suspended or terminated, at Proxibid’s discretion, without liability of Proxibid for such action. Notwithstanding such suspension or termination of the Solutions, Client will continue to be obligated under the Agreement to pay the remaining balance for Solutions provided by Proxibid and fees accrued as of the date of such suspension or termination.
Client Content. Client agrees to promptly deliver all materials reasonably requested by Proxibid that will be necessary for Proxibid to provide the Solutions.
Representations and Warranties. Client represents and warrants to Proxibid that: (i) Client possesses full power and authority to enter into the Agreement and to fulfill its obligations hereunder, and (ii) the performance of the terms of the Agreement and of Client’s obligations hereunder shall not breach any separate agreement by which Client is bound, or violate or infringe the rights of any third party.
Client Cooperation. Client shall cooperate with Proxibid in the performance of the Solutions under the Agreement. Client shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of all data and information provided to Proxibid.
Subject to Section 4 below, the initial term of the Agreement shall be for a period of one year and shall commence upon the Effective Date and, automatically renew for successive one-year periods thereafter.
Notwithstanding Section 3 above, the Agreement may be terminated prior to the expiration of the applicable Term as follows:
Either party may terminate the Agreement at any time upon thirty (30) days prior written notice.
Client may terminate the Agreement following a material breach thereof by Proxibid that is not cured within ten (10) days following receipt of written notice thereof from Client.
Proxibid may terminate the Agreement following a material breach thereof (or a breach of any other agreement to which Client is a party related to the Solutions) by Client that is not cured within ten (10) days following receipt of written notice thereof from Proxibid.
Effect of Termination. Upon termination of the Agreement for any reason:
Proxibid shall immediately cease providing Solutions, and Client shall have no further rights to utilize the Solutions.
Client shall continue to be obligated under the Agreement to pay the remaining balance for Solutions provided by Proxibid prior to the effective date of such termination. Within thirty (30) days of termination of the Agreement Proxibid shall invoice Client for all unpaid fees and expenses. Client shall pay the invoice within ten (10) days of receipt.
If the Agreement between the parties was exclusive and the termination resulted because of Client’s material breach pursuant to Section 4.a.iii., then Client shall also pay the greater of (a) Proxibid’s anticipated lost revenue, or (b) $10,000, as liquidated damages to Proxibid within 10 days of termination of this Agreement. It is agreed that the liquidated damage amount to which Proxibid is entitled hereunder is a reasonable estimate of just compensation for the harm that would be caused by Client’s breach and that the harm that would be caused by such breach is one that is incapable or very difficult of accurate estimation, and that the payment of the liquidated damage amount upon such breach shall constitute satisfaction of Client’s obligations hereunder.
Upon either party’s request, the other party shall return or, in the case of electronically maintained information, delete or destroy, all copies and originals of Confidential Information provided to other party under the Agreement.
This is a services engagement. Proxibid represents and warrants that it shall use commercially reasonable efforts to perform the Solutions. PROXIBID DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, EXCEPT WITH RESPECT TO THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF SECTION 7, AND NOTWITHSTANDING THE FORUM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CLIENT AGAINST PROXIBID, CLIENT AGREES THAT PROXIBID’S TOTAL LIABILITY, IF ANY, TO CLIENT FOR ANY LOSS, DAMAGE, CLAIM, LIABILITY, OR EXPENSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS TO CLIENT) CAUSED DIRECTLY OR INDIRECTLY BY THE PERFORMANCE OR NONPERFORMANCE OF THE SOLUTIONS OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF PROXIBID SHALL BE EXCLUSIVELY LIMITED TO AN AGGREGATE AMOUNT OF THE GENERAL MONEY DAMAGES IN A CUMULATIVE AMOUNT NOT TO EXCEED THE AMOUNTS PAID TO PROXIBID BY CLIENT UNDER THE AGREEMENT DURING THE IMMEDIATELY PRECEDING 6 MONTHS. UNDER NO CIRCUMSTANCES SHALL PROXIBID BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE POSSIBILITY OF SUCH DAMAGES ARE OR MAY BE KNOWN TO PROXIBID.
Definition. Each party may provide to the other, and each party may come into possession of information relating to the other party’s business which is considered confidential (the “Confidential Information”). Confidential Information shall include, without limitation, all Proxibid Intellectual Property, Client Content and all information marked confidential, all trade secrets of the parties (as defined under the applicable state trade secret law), and all information relating to each party’s business plans and operations, products, costs, marketing statistics, all Client information, statistics, reports, data, lists, security assessments and analysis, future plans, business affairs, process information, technical information, finances, marketing plans and pricing strategy. Notwithstanding the foregoing, the term Confidential Information shall not include information that (i) is publicly known at the time of its disclosure, (ii) is lawfully received by the receiving party from a third party not under an obligation of confidentiality to the disclosing party, (iii) is published or otherwise made known to the public by the disclosing party, or (iv) was generated independently by the receiving party before disclosure by the disclosing party.
Restrictions. Neither party shall disclose any of the other party’s Confidential Information to any person, or permit any person to use, examine or reproduce Confidential Information without the prior written consent of the other party, unless such Confidential Information has become public knowledge through means other than breach of the Agreement or unless disclosure is required by a valid subpoena, court order or applicable law. Each party shall exercise at least the same degree of care to protect the confidentiality of the other party’s Confidential Information which it exercises to protect the confidentiality of its own similar confidential information, but in no event less than reasonable care. As long as a party meets this standard of care, that party shall have no additional obligations or liability regarding confidentiality.
Limited Rights of Disclosure. Anything to the contrary notwithstanding, Proxibid may, without the prior specific written authorization of Client, (i) disclose and make available Client’s Confidential Information, on a confidential and restricted basis, to its employees and Contractors who have a reasonable need to know or have access to such information and materials in connection with the Solutions, and (ii) use Client’s Confidential Information for any proper purpose related to the Solutions.
Notice of Breach. Each party will immediately notify the other party of any theft or unauthorized disclosure, reproduction or use of any Confidential Information, or any part of such information, of which such party has knowledge. The notice shall include the name, title and business address of any person, whether or not employed by the notifying party whom such party reasonably believes has unauthorized possession of or made unauthorized disclosure, reproduction or use of Confidential Information and a detailed description of the Confidential Information at issue and the factual circumstances surrounding the unauthorized disclosure, theft or loss.
Injunctive Relief. Each party acknowledges that any violation of the provisions of this Section 7, may result in irreparable harm to the other party and that such other party may have no adequate remedy at law. The parties agree that in addition to a right to terminate the Agreement upon a breach of confidentiality each party shall have the right to seek equitable relief by the way of injunction to restrain such violation and to such further relief it may be entitled at law or in equity.
Proxibid’s Indemnification. Proxibid agrees to defend, indemnify and hold harmless Client and its directors, officers, its employees, sublicensees, and agents from and against all defense costs (including reasonable attorneys’ fees as they are incurred), judgments and other expenses resulting from any third party claims arising out of any gross negligence or willful misconduct of Proxibid in the performance of the Agreement. Proxibid’s obligation to indemnify requires that Client notify Proxibid promptly of any claim as to which indemnification will be sought and provide Proxibid reasonable cooperation in the defense and settlement thereof.
Client’s Indemnification. Client agrees to defend, indemnify, and hold harmless Proxibid and its directors, officers, its employees and agents from and against all claims, damages, liabilities, defense costs (including reasonable attorneys’ fees as they are incurred), judgments and other expenses arising out of Client’s breach of its obligations, covenants, representations or warranties hereunder. Client’s obligation to indemnify requires that Proxibid notify Client promptly of any claim as to which indemnification will be sought and provide Client reasonable cooperation in the defense and settlement thereof.
No Third Party Beneficiary
The Agreement is for the sole and exclusive benefit of the parties hereto, and their respective successors and permitted assigns. The parties do not intend to create any third party beneficiaries or other incidental beneficiaries and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control that could not have been avoided despite its use of commercially reasonable efforts to prevent undue delay, including, without limitation, acts or omissions or the failure to cooperate by the other party, acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other civil unrest, or any law, order or requirement of any governmental agency or authority.
Entire Agreement, Amendment and Notices
The Agreement (including the Terms and Conditions), together with the Statement(s) of Work, if any, under the Agreement, constitute the entire agreement between Proxibid and Client. It supersedes all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by written agreement signed by the parties. In the event of any conflict between these Terms and Conditions and an Addendum, the Addendum shall govern and control. All notices hereunder shall be (i) in writing, (ii) delivered to the representatives of the parties (if to Proxibid, addressed to Proxibid, Inc. Attn: Vice President of Sales, 4411 S. 96th Street, Omaha, NE, 68127, and if to Client, to the address reflected in the Client’s account with Proxibid), unless changed by either party by notice to the other party, and (iii) effective upon receipt.
The Agreement shall be governed by the laws of the State of Nebraska. The Parties agree to submit to the jurisdiction of the state and federal courts in Douglas County, Nebraska for the resolution of all disputes arising out of the Agreement.
In the event that any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or enforceability shall not affect any other provisions of the Agreement.
It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor, partner, fiduciary or representative of the other. Neither party shall act or represent itself, directly or by implication, in any such capacity in respect of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
The Agreement may not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Proxibid may subcontract Solutions to be performed under the Agreement. Notwithstanding the foregoing, Proxibid’s use of subcontractors will not relieve Proxibid of the responsibility for the subcontractor’s performance, and Proxibid’s obligations and responsibilities assumed under the Agreement will be made equally applicable to subcontractors.
Statute of Limitations
No action (including arbitration), regardless of form, arising out of transactions under the Agreement, shall be brought by either party more than one (1) year after the cause of action has accrued. This limitation shall not apply to any action brought by Proxibid for collection of any accrued amounts owed by Client to Proxibid.
Amendments and Waiver
Except for fee modifications permitted under Section 1.a., no waiver, amendment, or modification of any provision of the Agreement shall be effective unless consented to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under the Agreement shall operate as a waiver of any such right, power, or remedy. Any changes to the Agreement will be made in writing and subject to mutual agreement as to content and equitable adjustment to contract price, if applicable.
The Parties desire to facilitate certain transactions pursuant to the 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.
Proxibid does not allow Client to use the Solutions to identify and contact potential buyers in order to make offers to buy or sell items through any means other than the Solutions (“Side Sale”). If a Client uses any information or contacts obtained while using the Solutions to complete a Side Sale, Client is liable to Proxibid for all fees as if the sale had occurred using the Solutions. If Proxibid has reason to believe that Client is violating or violated this Policy, and is attempting to complete or completed a Side Sale, Client’s right to use the Solutions may be immediately suspended or terminated.
Any and all federal, regional, state and/or local taxes, including, without limitation, sales, use, personal property, excise, privilege, transactional, gross receipts, ad valorem, and any other transactional tax or custom and duty (collectively “Taxes”) relating to the Solutions or arising from this Agreement shall be the sole responsibility of the Client. Client agrees to indemnify and hold Proxibid harmless from any liability, expense, and/or assessment by reason of Client’s failure to pay any required Taxes. Such indemnification shall include, but not be limited to, fines, penalties, attorneys’ fees and/or other legal expenses incurred by Proxibid relating to Client’s failure to pay said Taxes.