This is a contract between you (the Customer) and us (Selectbidder™). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily "legalese" but we have tried to make it as readable as possible. These terms are so important though that we cannot provide these services unless you agree to them. By using the Subscription Selling Service or the Buying Service of Selectbidder™, you are agreeing to these terms.
We periodically update these terms and we will let you know when we do through the Notification section of the Selectbidder™ site.
We have several different products, and there are some provisions that apply only to those products. In the "General Terms" below, we have those that apply to all of our products, except as we explain in the "Product Terms". In the "Product Terms" below, we have those that apply to our specific products. If you are using our Appraisal, Selling, Alpha/Beta Services, or our Free Services, please carefully review the "Product Terms", as this section will control if there's any conflict between the "General Terms" and the "Product Terms".
All Selectbidder™ services are available only to licensed motor vehicle dealers, no retail customer may access, use, or attempt to purchase vehicles through any Selectbidder™ service. Selectbidder™ reserves the right, in its sole discretion, to deny access to anyone who fails to meet these requirements or violates this Agreement without advance notice. A User must comply with all applicable legal requirements in the jurisdiction(s) in which it is located and conducts business, including, without limitation, maintaining good standing as a legally organized entity and all necessary licenses, permits, and other required authorizations for the conduct of its business as related to this Terms of Service. Any vehicle acquired in violation of any legal requirement may not be returned or arbitrated for any reason, notwithstanding any contrary provision in this Terms of Service and the Terms and Conditions set forth by your participating local Dealer Auction.
"Billable Users" means those types of Users (defined below) for which we charge you fees.
"Billing Period" means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Communication Services" means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
"Confidential Information" means all information provided by you (or by your affliate auction) or us ("Discloser") to the other ("Receiver"), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
"Enrichment Data" means the data we make available to you as part of the Subscription Service, including data you may provide to us as described in the "Company Data" section in the "Groups" provisions below. Enrichment Data also includes information about Users, such as social media handles, avatars, and alternate email address, that we obtain from public or third party sources.
"Selectbidder™ Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
"Order Form" or "Order" means the Selectbidder™-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process. The purchase form may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
"Sensitive Information" means credit or debit card numbers; personal financial account information; driver's license numbers or similar identifiers;, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Payment Card Industry Data Security Standards.
"Site Visit" means interaction with your website by a single visitor in a single session.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means our web-based marketing and sales applications, tools and platform that you have subscribed to by an Order Form or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via www.selectbidder.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
"Subscription Term" means the Initial Subscription Term and all Renewal Subscription Terms.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Selectbidder™ apps available from, for example, the following: our condition report page, customer facing valuations page, links made available through the Subscription Service and non-Selectbidder™ services.
"Third-Party Sites" means third-party websites linked from within the Subscription Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"Selectbidder™", "we", "us" or "our" means Remarketeers, Inc, which runs Selectbidder.com.
"You", "your" or "Customer" means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
a. Access: During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.
b. Limits: Limits may apply to the number of Vehicles, Purchases, Sales, Contacts, Users. Any limits will be specified in your Order Form and this Agreement. You will be charged fees associated with all Billable Users.
c. Modifications: We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
d. Additional Features: You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.
a. Support: Support is included in your Subscription Fee. Phone support for the Subscription Service is available 8AM to 5PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day x 7 Days per Week via the help section on the Selectbidder™ website. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
b. Availability: We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
You may purchase Consulting Services through an Order Form or Statement of Work. Unless otherwise described in a Statement of Work or Order Form, the Consulting Services we provide are described at www.selectbidder.com. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with the "Renewal Subscription Term" section below. Unless otherwise agreed, all Consulting Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the Expiration Period"). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the "Delivery Period"). If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
a. Subscription Fees: The Subscription Fee will remain fixed during the Subscription Term unless you:
b. Fee Adjustments in Next Billing Period: If you exceed your Maximum Contacts in a Billing Period, then your Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price which corresponds with the maximum number of Contacts from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. Our pricing and limits will be as set forth at the time of initial subscription. We determine the number of Contacts in the Subscription Service. At your request, we will provide you with the detail we used to reach our conclusion. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Contacts or emails sent.
c. Fee Adjustments During a Billing Period: The Subscription Fee will increase during the course of a Billing Period if you exceed your Contacts Limit in a Billing Period. The Subscription Fee will be adjusted up to the tier price which corresponds with your maximum monthly Contacts limits from the current Billing Period. The Subscription Fee will also increase during a Billing Period if you add Billable Users, change products or subscribe to additional features for use during the Billing Period.
d. Payment by credit card: If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
e. Payment against invoice: If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period, and other time during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
f. Payment Information: You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Selectbidder™ portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Selectbidder™ partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
g. Sales Tax: All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are subject to GST (HST), all fees are exclusive of GST(HST). If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
h. Transaction Fee: Your local Dealer Auction may assess a "per" unit transaction fee on units acquired or sold by the User (the "Transaction Fee" or a "Sellers/Buyers Fee") on the Selectbidder™ system . The amount of the Transaction Fee will be disclosed on the participating Dealer Auction website or in their General Terms and Conditions. This fee is payable to the participating Dealer Auction and not to Selectbidder™. Selectbidder™ is merely providing a service platform to the participating local Dealer Auction to facilitate sales of vehicles.
a. Initial Subscription Term: The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process ("Initial Subscription Term").
b. Renewal Subscription Term: Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year ("Renewal Subscription Term"). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form or, if not specified in the Order Form, on our standard pricing available at www.selectbidder.com. In addition, on renewal, the current product usage limits at www.selectbidder.com will apply to your subscription, unless otherwise agreed to by you and Selectbidder™. Should you decide not to renew, you may send the notice of non-renewal by email to email@example.com.
c.End of Subscription Term: The Subscription Term will end on the expiration date and cannot be canceled before its expiration.
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws. The Subscription Service and Consulting Services belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Subscription Service and Consulting Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Selectbidder™ Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Selectbidder™ logo and other marks that we use from time to time are our trademarks. The appearance, layout, color scheme, and design of the Selectbidder™ site are protected trade dress. You may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you choose to use shortened URLs through the Subscription Service, you acknowledge that the data related to the number of clicks on a shortened URL may be publicly available and used by other parties. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Receiver will:
To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a Project Manager, one or more, a Sales Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that may be required include planning of marketing programs; setting of Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing systems.
Seller hereby warrants and covenants that, to the extent that any sale of a Vehicle by Seller through the Selectbidder™ platform is/maybe subject to disclosure obligations legislation, Seller will comply with any and all such disclosure obligations.
Further, Seller warrants and covenants that all statements and disclosures regarding a vehicle description, condition, options, provenance, and any other such notification regarding a vehicle in/on the vehicle condition report is the sole responsibility of the seller, and further, that such declarations are subject to the Member Auction's terms and conditions. Seller further agrees that false and/or inaccurate descriptions/declarations are subject without recourse to Partner Auction/Selectbidder™ arbitration which may result in additional costs, sale cancellation, and/or other, at the sole discretion of the Partner Auction and/or Selectbidder™.
You grant us the right to add your name and company logo to our customer list and website.
b. Aggregate Data: We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards: We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in Canada.
d. No Sensitive Information: YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
a. Prohibited and Unauthorized Use: You will not:
You will notify us right away of any unauthorized use of your Users' identifications and passwords or your account by following the instructions at www.selectbidder.com.
Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of:
a. Disclaimer of Warranties: WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, SELECTBIDDER CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, SELECTBIDDER CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages: TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability: EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
e. Third Party Products: WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
a. Termination for Cause: Either party may terminate this Agreement for cause:
b. Suspension for Prohibited Acts: We may suspend any User's access to the Subscription Service for:
c. Suspension for Non-Payment: We may suspend your access to all or any part of the Subscription Service upon ten (10) days notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
d. Suspension for Present Harm: If your website on, or use of, the Subscription Service:
e. Effect of Termination or Expiration: Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Selectbidder™ Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
f. Retrieval of Customer Data: As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
a. Amendment; No Waiver: We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the
use of the Subscription Service. If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at
www.selectbidders.com/legal and we will let you know through the Notification section on the Selectbidder™ portal used to access your
Selctbidder™ subscription. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change
these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these
Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Contracting Entity and Applicable Law: Your physical address determines which Selectbidder™ entity you are contracting with for
the Subscription and Consulting Services.
If you are located in North America or South America, then you are contracting with Remarketeers, Inc. and this Agreement is governed by the laws of the Province of New Brunswick, Canada without reference to conflicts of law principles. For contracts with Remarketeers, Inc., both parties consent to the exclusive jurisdiction and venue of courts in Moncton, New Brunswick, Canada for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
c. Force Majeure: Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted: Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties: You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Compliance with Laws: We will comply with all Canadian and U.S. state/provincial and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
g.Severability: If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h.Notices: Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Remarketters, Inc., 2852 Main Street, Hillsborough, NB E4H 2Y7, Canada, Attention: General Counsel.
To you: your address as provided in our Selectbidder™ Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
j. Assignment: You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k. No Third Party Beneficiaries: Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Contract for Services: This Agreement is a contract for the provision of services and not a contract for the sale of goods. In the United States, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of Canada, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
m. Authority: Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
n. Survival: The following sections in the 'General Terms' shall survive the expiration or termination of this Agreement: 'Definitions', 'Fees and Payments', 'Selectbidder™'s Proprietary Rights', 'Customer's Proprietary Rights', 'Confidentiality', 'Publicity', 'Indemnification', 'Disclaimers; Limitations of Liability', 'Termination, Suspension and Expiration', and 'General'.
o. Precedence: In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.
a.Applicability: If you are given alpha or beta access to any features of the Subscription Service, the following additional terms apply. In the event of a conflict between the terms set forth in the 'General Terms' and the terms set forth in this 'Alpha/Beta Services' section, the terms in this 'Alpha/Beta Services' section will control with respect to your use of Alpha/Beta Services.
b.Alpha/Beta Services: If we make alpha or beta access to some or all of the Subscription Service (the 'Alpha/Beta Services') available to you:
c. Survival: The following sections in this 'Alpha/Beta Services' section shall survive the expiration or termination of this Agreement: 'Alpha/Beta Services' and 'Survival'.
a.Applicability: If you do not pay a Subscription Fee to us and you utilize only our Free Services (defined below), then the following additional terms apply. In the event of a conflict between the terms set forth in any of the sections above and the terms set forth in this 'Free Services' section, the terms in this 'Free Services' section will control with respect to your use of the Free Services.
b. Additional Definitions: 'Free Services' means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
c. Free Services: If you use our Free Services, we will make the Free Services available to you free of charge until earlier of:
d. Free Trial: If you register for a trial of the Free Services, we will make the Free Services available to you on a trial basis free of charge until the earlier of:
e. Confidentiality: The provisions of the 'Confidentiality' section in the 'General Terms' do not apply to use of the Free Services.
f. Disclaimers; Limitations of Liability: WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE FREE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FREE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELECTBIDDER BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SELECTBIDDER IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT SELECTBIDDER™'S AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED DOLLARS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE FREE SERVICES TO YOU. THIS 'DISCLAIMERS; LIMITATIONS OF LIABILITY' SECTION SHALL APPLY IN LIEU OF THE 'DISCLAIMERS; LIMITATIONS OF LIABILITY' SECTION IN THE 'GENERAL TERMS'.
g. Suspension: We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
h. Contracting Entity and Applicable Law: This Agreement is governed by the provisions of the 'Contracting Entity and Applicable Law' section in the 'General Terms' above applicable to those in North America, regardless of where you are located.
i. Survival: The following sections in this 'Free Services' section shall survive the expiration or termination of this Agreement: 'Definitions', 'Disclaimers; Limitations of Liability', 'Contracting Entity and Applicable Law', and 'Survival'.