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Terms of Service Last Modified: June 30, 2005 1. DESCRIPTION OF SERVICE Sellathon provides users with applications and services that assist them in the creation, monitoring, and/or optimization of their online auctions. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Sellathon applications, shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that Sellathon assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service by subscribing through Sellathon's order page and understand that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service. You acknowledge and agree that a subscription to ViewTracker, SellerPower, or any other service provided by Sellathon, DOES NOT convey ownership in, title to, exclusive rights to, exclusive access to, or any claim of any kind, on data provided by Sellathon. 2. MODIFICATIONS TO SERVICE Sellathon reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Sellathon shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Sellathon may change, add or remove any part of this Agreement, or any other terms associated with the use of the site, at any time, by posting a notice of such changes to the Terms of Service page of the Web site. Any changes shall become part of the Agreement and shall apply as soon as such a notice is posted. By continuing to use Sellathon after the notice is posted, you are indicating your acceptance of those changes. 3. FEES AND PAYMENTS Sellathon will charge you fees to become a subscriber to premium services such as ViewTracker™, SellerPower, and others. In order to use the Service or designated portions of the Service you will be required to register and create an account. You agree to pay all fees and charges, including applicable taxes, incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred. Sellathon reserves the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon prior notice to you. In order to set up a subscription for a premium service with Sellathon you must provide Sellathon with valid credit card information, a valid check or money order, or valid PayPal® account information. By submitting such payment information, you give Sellathon permission to charge all Fees incurred through your account via the payment method you designate on the Order Form. All Fees (other than renewal fees) will be charged at the time they are incurred. You understand and agree that no website can reasonably offer 100% uptime, and all Sellathon products and services are purchased on an as-available basis. In the event Sellathon is no longer able to provide a particular subscription-based product or service, you understand and agree that any refunds will be prorated, and the amount of refund to which you are entitled will be proportional to the future unused portion of your subscription to that product or service, and NOT the original purchase price. 4. REGISTRATION AND ACCOUNT CREATION As part of the registration and account creation process required to obtain access to Sellathon's premium services, you will select a subscriber ID (username) and a password. You will provide Sellathon with certain registration information, all of which must be accurate and updated (if any of your registration information changes, you can update it by visiting the Account Information page from your Login screen). You will be solely responsible for maintaining the confidentiality of your password. You are solely responsible for all usage or activity on your Sellathon account including, but not limited to, use of the account by any person authorized by you to use your subscriber ID and password. 5. NON-TRANSFERABILITY OF SUBSCRIPTION Your right to use this site and Sellathon's premium services is personal to you and you may not sub-license, transfer, sell or assign access to said services or this agreement to any third party without our approval. 6. SUBSCRIPTION RENEWAL AND CANCELLATION Sellathon may automatically renew and charge your account upon every one-year anniversary of the date on which you subscribed. You give permission to Sellathon to automatically charge your subscription fee on an annual basis. However, you may "opt out" of this automatic renewal at any time by informing Sellathon in writing prior to the end of the annual billing period. You may give Sellathon notice by sending an e-mail to donotrenew@sellathon.com and indicate that you do not wish to renew your account for the upcoming year. You understand and acknowledge that due to the nature of the data provided by SellerPower, Sellathon does not offer refunds, credits or exchanges for the SellerPower service. 7. SPONSORS, THIRD PARTIES AND ADVERTISERS Your correspondence or business dealings with, or participation in promotions of, sponsors, third parties or advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such sponsor, third party or advertiser. You agree that Sellathon shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such sponsors, third parties or advertisers on the Service. You acknowledge that Sellathon may, at its sole discretion, make its auction data available to any third party, whether such data is related to a specific auction, a specific group of auctions, or in an aggregated manner, or in any way it sees fit, at any time, without the consent or notification of ViewTracker subscribers. 8. LINKS Sellathon may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Sellathon has no control over such sites and resources, you acknowledge and agree that Sellathon is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, accuracy, quality, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Sellathon shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. 9. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT: a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SELLATHON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. b. SELLATHON MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (vi) OR THAT THIS WEB SITE, ITS CONTENT, AND THE SERVERS ON WHICH THE WEB SITE AND CONTENT ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SELLATHON OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. e. THIS WEB SITE MAY CONTAIN VARIOUS COMBINATIONS OF TEXT, IMAGES, AUDIOVISUAL PRODUCTIONS, OPINIONS, STATEMENTS, FACTS, ARTICLES, OR OTHER INFORMATION CREATED BY SELLATHON OR BY THIRD-PARTIES. DUE TO THE NUMBER OF SOURCES FROM WHICH CONTENT IN THIS SITE IS OBTAINED, AND THE INHERENT HAZARDS OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES IN SUCH CONTENT. ACCORDINGLY, SUCH CONTENT, IS FOR YOUR REFERENCE ONLY AND SHOULD NOT BE RELIED UPON BY YOU FOR ANY PURPOSE. f. INFORMATION CREATED BY THIRD PARTIES THAT YOU MAY ACCESS ON THE SITE OR THROUGH LINKS IS NOT ADOPTED OR ENDORSED BY SELLATHON AND REMAINS THE RESPONSIBILITY OF SUCH THIRD PARTIES. g. DATA CONTAINED IN THE SELLERPOWER DATABASE IS UNCENSORED AND UNEDITED. BY PURCHASING AND/OR USING THE SELLERPOWER DATABASE, YOU ACKNOWLEDGE THAT YOU ARE OVER 18 YEARS OF AGE, THAT ARE NOT OFFENDED BY THE UNEDITED AND UNCENSORED SEARCHES THAT MAY APPEAR THEREIN, AND THAT YOU WILL TAKE REASONABLE CARE TO PREVENT ANYONE WHO IS OFFENDED AND/OR UNDER 18 YEARS OF AGE FROM SEEING SAID UNEDITED AND UNCENSORED DATA. 10. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT SELLATHON SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SELLATHON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. 11. EXCLUSIONS AND LIMITATIONS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 10 AND 11 MAY NOT APPLY TO YOU. 12. NON-WAIVER The failure of Sellathon to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. 13. HEADINGS FOR CONVENIENCE ONLY The section titles in the TOS are for convenience only and have no legal or contractual effect. 14 . INDEMNIFICATION: You agree to indemnify, defend and hold Sellathon harmless from any claims and expenses, including reasonable attorneys' fees, arising from or related to any breach by you of any terms of this Agreement. You further agree to indemnify, defend and hold Sellathon harmless from any claims and expenses, including reasonable attorneys' fees, arising from or related to the use of our NPB (non-paying bidder) database. 15. USE OF NPB (NON-PAYING-BIDDER) DATABASE By submitting an auction venue ID to our NPB database, you swear and affirm that you personally did not receive payment for an item by the individual (or business) that uses the submitted auction venue ID, after the individual was the final high bidder for the item(s), or purchased the item(s) using "Buy-it-Now" or other fixed-price utility in an auction venue. You understand and agree that access to Sellathon's NPB (non-paying bidder) data is restricted to registered ViewTracker users and that you shall not share any NPB (non-paying bidder) data with anyone who is not a registered ViewTracker user. 16. RESTRICTIONS ON USE: You may not use Sellathon or its content or any premium services for any illegal purpose or in any manner inconsistent with these Terms and Conditions. You agree to use Sellathon and its content and premium services solely for your own personal use and benefit and not for resale, republication, redistribution or other transfer or disposition to any other person or entity. You also agree not to create any derivative works therefrom. You may not user Sellathon's ViewTracker service to track auctions that are promoted using any of the following methods: spam, multiple newsgroup postings, bulk HTML email where the auction opens automatically when the email is opened, popups or popunders, or any other method of delivery that causes the auction content to be displayed without the recipient's consent. You may not use any automated method on our SellerPower database, including but not limited to automatic-refreshing browsers, bots, macros, or any other software that automatically requests search data information from the SellerPower database. BY USING SELLATHON'S VIEWTRACKER SERVICE, YOU WILL RECEIVE A LIMITED LICENSE TO SELLATHON'S PROGRAMMING CODE, ACCESS TO SELLATHON'S DATABASE, SELLATHON'S GRAPHIC INTERFACE FOR INTERACTING WITH SAID DATABASE, AND CERTAIN SENSITIVE AND POSSIBLY PROPRIETARY INFORMATION, THAT IF IMPROPERLY USED, WOULD CAUSE CONSIDERABLE MATERIAL HARM TO SELLATHON. YOU AGREE AND AFFIRM THAT YOUR SOLE PURPOSE IN ACCESSING AND USING SELLATHON'S VIEWTRACKER SERVICE IS TO TRACK YOUR AUCTIONS, AND THAT YOU SHALL NOT ENGAGE IN ANY ACTIVITY RELATED TO DECONSTRUCTING, DECOMPILING, DISASSEMBLING, REVERSE-ENGINEERING, MODIFYING, CREATING DERIVATIVE OR MODIFIED COPIES, OR OTHERWISE USING SELLATHON'S VIEWTRACKER TRACKING SYSTEM FOR ANY OTHER PURPOSE. BY USING SELLATHON'S VIEWTRACKER SERVICE, YOU ACKNOWLEDGE SELLATHON'S PENDING PATENTS FOR THIS INVENTION, AND, UNLESS AGREED UPON BY BOTH PARTIES IN WRITING, AGREE NOT TO DEVELOP OR MARKET, PARTICIPATE IN THE DEVELOPMENT OR MARKETING OF, OR CONSULT WITH OR BE A PRINCIPLE IN ANY COMPANY OR ORGANIZATION THAT DEVELOPS OR MARKETS, ANY SIMILAR OR COMPETING PRODUCT WITH SUBSTANTIALLY SIMILAR FEATURES FOR A PERIOD OF FIVE YEARS FROM YOUR ACCEPTANCE OF THESE TERMS, OR FOR THE DURATION OF ANY ISSUED PATENT(S) COVERING THIS PRODUCT, WHICHEVER IS LONGER. ACCESS TO VIEWTRACKER IS PROVIDED SOLELY AND EXCLUSIVELY WITH THE UNDERSTANDING THAT YOU AGREE TO THE STRICT CONSTRUCTION OF THE PRECEDING PARAGRAPHS, AND THAT VIOLATION OF ANY PART OF THIS CLAUSE WILL CAUSE CONSIDERABLE MATERIAL HARM TO SELLATHON, AND THAT YOU WILL BE LIABLE FOR ANY AND ALL DAMAGES TO SELLATHON THAT RESULT FROM SUCH A VIOLATION. 17. SEVERABILITY: If any provision of this Agreement is found invalid or unenforceable, the provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force. 18. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between you and Sellathon and govern your use of the Service. 19. REFUSAL OR DISCONTINUANCE OF SERVICE: Sellathon reserves the right to refuse or discontinue service to any user for non-compliance with these Terms and Conditions. 20. CHOICE OF LAW, FORUM AND VENUE: This Agreement will be governed by the laws of the Commonwealth of Kentucky. Any dispute arising from the terms of this agreement or breach of this agreement will be governed by the laws of the Commonwealth of Kentucky and you agree to personal jurisdiction by the state and federal courts sitting in Lexington, Kentucky. It is agreed by the parties that the venue in any action, proceeding or counterclaim brought by either of the parties against the other on any matters whatsoever arising out of or in any way connected with these Terms and Conditions will be Lexington, Kentucky. I HAVE READ AND UNDERSTAND THIS SUBSCRIBER AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS. |
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