Legal Terms

Auctiva Commerce Service Terms and Conditions Agreement

Please read these Terms of Service carefully.

This Web site is owned and operated by Auctiva Inc. and/or Auctiva Inc. subsidiary Auctiva Commerce. Throughout this Agreement Auctiva Commerce or Auctiva Commerce.com refer collectively to Auctiva Inc. and its subsidiaries and related companies (the "Site").

SECTION 1:

General Provisions

Auctiva Commerce provides services ("Services") through its site to users and members, subject to the following Service Terms and Conditions. Auctiva Commerce reserves the right to modify this Service Terms and Conditions Agreement periodically without prior notice. You can review the most current version of the Service Terms and Conditions Agreement at any time at http://www.auctivacommerce.com/legal.aspx.

Applicable Laws

All matters relating to these Services shall be governed by U.S. federal law and/or the laws of the State of California without regard to its conflict of law principles. Any legal action or proceeding relating to these Services shall be instituted in a state or federal court in the jurisdiction of the State of California.

If there is a determination that any provision of this Service Terms and Conditions Agreement is invalid or unenforceable, that determination will not affect the rest of the Service Terms and Conditions Agreement and the Service Terms and Conditions Agreement shall be deemed amended to the minimum extent necessary to make them valid and enforceable.

Contact Information

If you have any questions regarding this Service Terms and Conditions Agreement, please contact us.

Products and Services Offered by Auctiva Commerce on the Site

Auctiva Commerce offers products and services on the Site. When you enroll to obtain a product or service from Auctiva Commerce on the Site, you must accept the specific agreement applicable to that product or service contained within this Service Terms and Conditions Agreement. Your use of any such product or service offered on the Site is governed by the terms and conditions in this agreement for that product or service as well as the billing, payment, service cancellation and refund policies for all Auctiva Commerce paid services, also provided in this agreement. Except as provided in this agreement, Auctiva Commerce does not warrant that any product descriptions or content contained in this Web site is accurate, current, reliable, complete or error-free.

You are responsible for obtaining access to Auctiva Commerce and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.

Errors and Omissions

All information and offers displayed on Auctiva Commerce is subject to errors, omissions, change of price, or withdrawal without notice.

Contents of This Agreement

In addition to providing General Provisions (SECTION 1), the billing and payment, service cancellation and refund policy for all Auctiva Commerce paid services (SECTION 2), this agreement contains the terms and conditions of the following Auctiva Commerce services:

Web Hosting and Web Sites by Auctiva Commerce Service Terms and Conditions (SECTION 3)

SECTION 2:

Policies For All Auctiva Commerce Paid Services

Billing and Payment Policies for all Auctiva Commerce Paid Services

For recurring month-to-month services, your activation date determines the start date of each "service month". For instance, if a service is activated on the 15th day of a particular month, your "service month" would begin on the 15th of each calendar month and run through the 14th of the next calendar month. Your account will be billed once each calendar month for your current or upcoming "service month" at the contracted rate.

Unless you cancel by contacting Auctiva Commerce your recurring month-to-month services will continue to bill monthly at the contracted rate.

For one-time services, your account is billed once for the service requested for the amount disclosed in the service description. If you request multiple services, your account bills may be consolidated into one transaction per calendar month.

You acknowledge that You will be charged an additional fee if You exceed the bandwidth or storage capacity of Your plan level.

You acknowledge that You may be charged transaction fees per the schedule located at: http://www.auctivacommerce.com/pricing-old.aspx if You are subscribed to a pricing plan that includes transaction fees.

All services requested from Auctiva Commerce will be billed to the account provided at the time of service sign-up, or the most current account information provided to Auctiva Commerce. Any change to your account information will cause all existing services to be billed to the new account information.

Service Cancellation for all Auctiva Commerce Paid Services

You may cancel any recurring Auctiva Commerce service at any time. Month-to-month recurring services are billed and provided in one "service month" increments and are cancelable only as so. One-time Auctiva Commerce services are executed immediately and are therefore not cancelable.

Refund Policy for all Auctiva Commerce Paid Services

You may choose not to continue any Auctiva Commerce service at anytime. In order to avoid paying for your next "service month" on a recurring month-to-month service, simply cancel the service before your next "service month". No refunds will be made on any prior or current "service months". All one-time Auctiva Commerce services are executed immediately and are therefore not refundable.

Promotional Periods for Auctiva Commerce Services

From time to time Auctiva Commerce may offer “free-trial” or similar promotional offers for the use of Auctiva Commerce services. Any such offers will exist only for the duration and offer period of the promotion as noted in the promotional details.

SECTION 3:

Web Hosting and Web Sites By Auctiva Commerce Terms and Conditions

Acceptance of Terms

Auctiva Commerce Services are provided to you under the terms of this agreement. Your acceptance and continued use of Auctiva Commerce services constitutes acceptance of these terms.

The Service

Subject to the terms of this Agreement, Auctiva Commerce will provide Services, which include hosting of e-commerce solutions and/or Internet Web sites ("Web sites" or "Hosting" or "Hosting Network"). In addition, some Services include access to certain Auctiva Commerce Software ("Software") to facilitate the creation and maintenance of Web sites.

Auctiva Commerce Suppliers

Some or all web hosting services obtained through Auctiva Commerce is outsourced to third-party service providers. Therefore, the terms and conditions stated within this agreement apply to Auctiva Commerce and its service providers. You understand and agree that since these service providers work on behalf of Auctiva Commerce to provide the hosting service, we may be required to share some or all of your personally identifiable information with them. For more information, refer to our Privacy Policy.

User-Supplied Content

All services may be used for lawful purposes only. Through these Services, you may have access to chat areas, bulletin boards, web pages, email, or other services that enable you to send or post materials ("content") and make that content available to others. You must not submit, publish, or display on the Network any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, you may not submit, publish, or display any content that violates an US Federal, State, or Local law. You are solely responsible for the content you make accessible through the Auctiva Commerce hosting network. You may not use the Service to assist any other person or entity to violate any Federal, State, or Local laws, ordinances, or regulations. Auctiva Commerce is not obligated to monitor the network to examine available content. You hereby acknowledge that if we are made aware of content that is determined to be, in its sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, Auctiva Commerce has the right, but not the obligation, to edit, remove or deny access to such content. Auctiva Commerce may disclose any content or records concerning customer's account as required to satisfy any law, regulation, governmental request or court order.

Pornography and pornographic merchandising are prohibited on all hosting servers. This includes sites that display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to hosting servers or any other server on the Internet. Links to such materials are also prohibited. In addition, any site selling or promoting bulk email service is not allowed.

Customers may not use the hosting network with an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the customer, logging into a server or account the customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. Auctiva Commerce will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.

Commercial Advertising/ Mass Mailings

You must not use the hosting network, equipment or any email address in connection with the transmission of spam, flames, mail bombs, or substantially similar, unsolicited email messages. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of the hosting network, equipment or any email address. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's email address accessible to the public will not constitute a request or invitation to receive messages.

If you are found to have spammed, without warning, Auctiva Commerce reserves the right to disable your domain. Auctiva Commerce solely reserves the right to refuse or cancel service to known spammers. Lastly, Auctiva Commerce reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.

Distribution and/or Transmission of Obscene or Indecent Speech or Materials

Violation of indecency and obscenity laws can result in criminal penalties. If you are found to have violated indecency and obscenity laws, without warning, Auctiva Commerce reserves the right to disable your domain. Auctiva Commerce solely reserves the right to refuse or cancel service to users known to have violated indecency and obscenity laws. Lastly, Auctiva Commerce reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.

Intellectual Property Rights

Material accessible to you through these Services may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use these Services in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the hosting network. If you use a domain name in connection with the hosting service or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.

Defamation

Defamatory speech distributed over the Internet can result in civil liability for the defamer.

Refusal of Service

Auctiva Commerce reserves the right at its sole discretion to refuse or cancel service. Violation of any of Auctiva Commerce Service Terms and Conditions could result in a warning, suspension, or possible account termination. Accounts terminated due to policy violations will not be refunded.

Indemnification

Customer agrees that it will protect, indemnify, save and hold Auctiva Commerce and Auctiva Inc. harmless from any and all stipulations, liabilities, losses, expenses and claims, as well as reasonable attorney's fees assessed against Auctiva Commerce and Auctiva Inc., its agents, customers, officers, employees and administration that may arise or result from any service provided or performed or agreed to be performed or any product sold by it's customers, agents, employees or assigns. Customer agrees to defend, indemnify and hold Auctiva Commerce and Auctiva Inc. harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or distributed in association with these Services; (2) any material furnished by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright violation and any defective products sold to a customer from the hosting network.

Disclaimer

Auctiva Commerce will not be responsible for any damages your business may suffer. Auctiva Commerce makes no warranties of any kind, expressed or implied for services we provide. Auctiva Commerce disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Auctiva Commerce and its employees. Auctiva Commerce reserves the right to amend or update these policies without notice. Failure to follow any terms and conditions may result in account deactivation.

Auctiva Commerce furthermore expects that its customers who provide Internet services to others will fully comply with all applicable laws concerning the privacy of online communications. A customer's failure to comply with those laws will violate this policy. Finally, Auctiva Commerce wishes to emphasize that in accepting services, customers indemnify Auctiva Commerce for the violation of any law or Services policy that results in loss to Auctiva Commerce or the bringing of any claim against Auctiva Commerce. This means that if Auctiva Commerce is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against Auctiva Commerce, plus costs and reasonable attorneys' fees.

Commercial User

Under the Auctiva Commerce Service Terms of Use, you may use the Services for certain commercial purposes. However, in doing so, you expressly agree with the following:

You are responsible for all goods and services offered in connection with the Services, all materials used or displayed in connection with Services, and all acts or omissions that occur at the Website or in connection with your account or password. You will display on the Website contact information, including at a minimum your company name, address, telephone number, fax number and e-mail address. You agree to update such information and to keep it true, accurate, current and complete. You may not resell, assign or transfer your rights or obligations under the Agreement. You may not use the Services in a manner which principally provide advertising, hosting, storage, or other resources to third parties.

You represent and warrant that you have the full power and authority under all relevant laws and regulations to offer and sell the goods and services offered in connection with the Services, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered in connection with the Services.

Auctiva Commerce reserves the right to refuse to host or continue to host any Website or any materials which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) in connection with which it has received complaints; (3) has become the subject of a government complaint or investigation; or (4) violates or threatens to violate the letter or spirit of the Agreement.

Collection of Personal Data

Under the Auctiva Commerce Service Terms of Use, you may collect and store personal data of visitors to your Websites. However, in doing so you expressly agree with the following:

You will inform all such visitors that you are collecting such information and clearly disclose all the uses you will make of such information. You will use such information only in a manner consistent with your disclosures, and applicable laws and government regulations, including, by way of example and without limitation, applicable laws and government regulations regarding "spam" and the unsolicited mass distribution of information. You will also provide such visitors with an easily accessible mechanism for "opting-out" of mailings from (or other contact with) you. If any such visitor requests or if Auctiva Commerce requests on behalf of any such visitor that you remove all information relating to such visitor from your databases and other records (maintained with Auctiva Commerce or elsewhere), then you will promptly remove such information from your databases and other records. You will comply with all other limitations described in the Auctiva Commerce Terms of Use.

Content Submitted to Web site

Auctiva Commerce does not claim ownership of the information, data, text, software, music, sound, photographs, graphics, video, messages or other materials that you provide for inclusion on your Web site (your "Content"). By submitting Content to Auctiva Commerce for inclusion on your Web site, you grant Auctiva Commerce the world-wide, royalty-free, and non-exclusive license to reproduce, execute, modify, adapt and publish the Content solely in connection with your Services. This license exists only for as long as Auctiva Commerce continues to provide you the Services and will terminate at the time your Services are terminated.

You acknowledge that Auctiva Commerce does not pre-screen Content. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

Termination and Payment Policies

You are responsible for all money owed on your account from creation to confirmed cancellation per Auctiva Commerce Service Terms and Conditions.

Transferring a domain away from Auctiva Commerce does not automatically cancel your account.

Auctiva Commerce may, but has no duty to, immediately terminate your Services and remove your Web site or any of your materials from Auctiva Commerce servers if Auctiva Commerce, in its sole discretion, concludes that you have engaged in illegal activities or the sale of illegal or harmful goods or services, in activities or sales that may damage the rights of Auctiva Commerce or others, or have violated or threatened to violate the terms of the Agreement. Any termination under this paragraph will take effect immediately. In the event that Auctiva Commerce terminates your Services in connection with this paragraph, you will not be entitled to a refund of any fees you have paid to Auctiva Commerce.

In addition, Auctiva Commerce may terminate your Services at its convenience. However, in the event that Auctiva Commerce elects to terminate your Service at its convenience, as your only remedy, Auctiva Commerce will refund to you a prorated amount of fees which you have pre-paid.


Last Updated: 03/28/2012