BidKit Terms of Service

BidKit’s service enables organizations to conduct mobile based electronic auctions through a set of online tools. BidKit provides its services subject to the terms and conditions contained in these Terms of Service (this “Agreement”). Acceptance of the terms of this Agreement or use of the BidKit Website or the use of any BidKit Services constitutes acceptance of this Agreement as well as any other terms and conditions of use posted by BidKit on its Website including its General Terms and Conditions. Please review the terms of this Agreement carefully. Once accepted, this Agreement becomes a binding legal commitment. If you have any questions, you can reach the BidKit team at support@BidK.it.

Definitions

“Customer” means the individual or entity entering into an agreement with BidKit for the use of BidKit Services or purchasing or otherwise using the BidKit Services for a Customer Event and all of their related representatives, or persons or entities acting for or on their behalf.

“Customer Event” means an event that interfaces with the BidKit Services and include any services (web-based or other services) made available by Customer through that application.

“Customer Event Date” means the date (or dates) that Customer Event will take place.

“Data” means data and other information made available to BidKit through the use of the BidKit Services under this Agreement, including bidder information, organizational contact information, auction item data, bid data and post event reconciliation data and any data (a) entered directly by Customer into BidKit Services, (b) provided by Customer to BidKit for entry or use with the BidKit Services, or (c) entered by an End User (except for credit card numbers, expiration dates and security codes), all in connection with the Event, including but not limited to End User, guest/bidder information or item records or bids.

“Documentation” means all of the instructions, on-line help files and technical documentation made available by BidKit for the BidKit Services.

“End User” means an end user of a Customer Event.

“Quoted Fees” means the schedule of fees or pricing, as such may be updated from time to time, or any invoice(s) issued to Customer.
“BidKit Acceptable Use Policy” means certain terms and conditions relating to the use of the BidKit Services, available here, as such may be updated from time to time.

“BidKit Properties” means the BidKit website, BidKit Bidding Application, Documentation, and technical support made available by BidKit to Customer in connection with the BidKit Services.

“BidKit Services” means the services provided by BidKit to Customer under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by BidKit, including without limitation the BidKit Bidding Application and any software provided to Customer in connection with its use of the BidKit Services or which may be used by an End User.

“BidKit Website” means the BidKit web site, including all of its features and content.

“Personally Identifiable Information” means any information that may be used to identify an individual, including but not limited to, names, addresses, telephone numbers, email addresses, or any other contact information, and credit card information.

“Equipment” means any equipment, hardware, personal electronic devices, media devices or any other non-software product provided by BidKit.

BidKit Customer Program and Services

2.1 Provision of Services. BidKit will make the BidKit Services available to Customer in accordance with this Agreement. Subject to the terms and conditions of this Agreement, BidKit grants Customer a non-exclusive, revocable right to:

(a) Offer and make the BidKit Services available to End Users in connection with Customer Event; and

(b) Otherwise use the BidKit Properties solely in connection with and as necessary for Customer’s activities hereunder.

2.2 Data Storage. Customer acknowledges that data storage is not guaranteed by BidKit and agrees that BidKit has no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.

2.3 Use of BidKit Services. Customer will be solely responsible for all use (whether or not authorized) of the BidKit Services and Documentation under its account, including for the quality and integrity of Customer Data and each Event. Customer will use reasonable best efforts to prevent unauthorized access to or use of the BidKit Services and notify BidKit promptly of any such unauthorized access or use.

2.4 Restrictions. Except as expressly provided in Section 2.1 (Provision of Services), Customer will not transfer, resell, lease, license or otherwise make available the BidKit Services to third parties. In any event, Customer will not offer the BidKit Services on a standalone basis. Customer will ensure that the BidKit Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including BidKit’s Acceptable Use Policy, which is hereby incorporated into this Agreement. Specifically and without limitation, Customer will ensure that BidKit is entitled to use the Customer Data as needed to provide the BidKit Services and will not use the BidKit Services in any manner that violates any data protection statute, regulation, order or similar law. Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.

2.5 Changes to Service. Customer acknowledges that the features and functions of the BidKit Services, including the SLA may change over time. It is Customer’s responsibility to ensure that operations Customer makes to the BidKit Services are compatible with then-current BidKit Services.

Fees

3.1 Fees. Customer agrees to pay the all Quoted Fees. In addition, if applicable, Customer agrees to pay any applicable support or travel related fees in connection with Customer’s order of any separate support services.

3.2 Net of Taxes. Unless otherwise stated, all applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against BidKit, will be payable by Customer. Customer will not withhold any taxes from any amounts due to BidKit.

3.3 Invoicing. Subject to certain credit requirements as determined by BidKit, BidKit may agree to allow Customer to pay amounts due hereunder in arrears. In such event, Customer will make all of the payments due hereunder the earlier of the date stated in the Quoted Fees or within 30 days of the date of any invoice(s) for the Quoted Fees. If Customer is overdue on any payment and fails to cure such non-payment within 10 days of the due date, then BidKit may assess and Customer will pay interest on all amounts due at the lesser of 1% per month or the maximum amount allowable by law. In no event shall Customer be liable for interest in excess of that allowable by law.

3.4 Disputes. Customer will notify BidKit in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to BidKit within 30 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 60 day period described in this Section 3, Customer will not be entitled to dispute any fees paid or payable by Customer.

3.5 Suspension. Customer acknowledges that, in the event Customer’s usage exceeds the amounts prepaid by Customer or any other failure to pay amounts due as described in this Section 3, BidKit will be entitled suspend the BidKit Services associated with Customer’s account without prior notice to Customer. BidKit will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to any suspension of BidKit Services pursuant to this Section 3.

3.6 Collection. Notwithstanding the terms of Section 9.3, BidKit may pursue any amounts payable by Customer to BidKit by any legal process available and Customer submits to the exclusive jurisdiction of the federal or state courts within Michigan for any action relating to the collection of Quoted Fees or any other amounts payable by Customer. Customer shall pay to BidKit any and all costs of collection of any Quoted Fees or any other amounts payable by Customer, including without limitation attorney’s fees.

3.7 Customer acknowledges that if, for whatever reason, BidKit feels there is any risk that it will be unable to collect any amounts due from Customer, BidKit may require Customer to provide security, in the form of a cash or credit card deposit, to secure Customer’s payment obligations before BidKit pre-pays for travel or ships any Equipment to Customer.

Ownership And Confidentiality

4.1 Ownership Rights. As between the parties, BidKit exclusively owns and reserves all right, title and interest in and to the BidKit Services, BidKit Properties and BidKit’s Confidential Information. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data and Customer’s Confidential Information.

4.2 Use of Licensor Marks. Subject to the terms of this Agreement, each party (the “Licensor”) grants to the other party (the “Licensee”) the right to use and display Licensor’s name and marks (the “Licensor Marks”) on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor’s usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. Licensee and will not present itself as an affiliate or other legal agent of Licensor. The license described in this Section 4 will terminate automatically in the event of any termination of this Agreement.

4.3 Confidentiality.

(a) Definition. “Confidential Information” means any information or data of any nature and in any form concerning any aspect of the business or affairs of BidKit or that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure or is otherwise not generally known to the public. “Confidential Information” does not include any information which: (i) is publicly available (other than information that becomes publicly available through the action or fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights or duties; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

(b) Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section 4. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

4.4 Injunctive Relief. The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 4 and that, in the event of an actual or threatened breach of the provisions of this Section 4, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section 4.

Data Ownership and Use

Customer and End Users grant BidKit the right to use, host, store, modify, adapt, reproduce, distribute, publish and display Data to the extent necessary for BidKit to perform under this Agreement. Customer acknowledges that this Data will be stored and used on computers and networks inside the United States of America (USA). If Event will take place outside of the USA, Customer agrees to comply with any federal, state or local law, in the country where Event will take place, applicable to maintaining privacy with respect to personal information that will be transferred to the USA.

End Users grant BidKit the right to utilize any credit card numbers, expiration dates, security codes and any personal information in connection with the processing of any transaction or bid.

Customer and End Users further grant BidKit the right to use, host, store, maintain, modify, adapt, reproduce, distribute, publish, display and analyze Data. BidKit will not sell or distribute any Personally Identifiable Information contained within the Data to persons or entities not associated with BidKit.

Disclaimer

BIDKIT HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. BIDKIT’S SERVICES AND PROPERTIES ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MAXIMUM PERMITTED UNDER LAW.

Exclusion of Damages; Limitation Of Liability

BIDKIT WILL NOT BE LIABLE TO CUSTOMER OR END USER, UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER OR TO END USER FOR ANY DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF BIDKIT HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

BIDKIT WILL NOT BE LIABLE TO CUSTOMER, UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

Termination

8.1 Term. The term of this Agreement will commence on the date this Agreement is accepted by Customer and continue for a period of twelve months. This Agreement will automatically renew for additional one-year terms unless either party provides notice of non-renewal no less than 60 days prior to the end of a renewal term. While the agreement may be in force for the duration above, certain BidKit Services may only be made available during a portion of the Term. By way of example, BidKit’s product BidKit Me is provided for one Customer Event and as a bidding application may not be used for more than one Customer Event with corresponding Customer Event Date per purchase.

8.2 Termination. Either party may terminate this Agreement for any reason upon 30 days written notice to the other party. Either party may also terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within 10 days after written notice of such breach. BidKit may also suspend the BidKit Services immediately upon notice for cause if: (a) Customer violates (or gives BidKit reason to believe it has violated) any provision of the BidKit Acceptable Use Policy; (b) there is an unusual spike or increase in Customer’s use of the BidKit Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the BidKit Services; (c) BidKit determines, in its sole discretion, that its provision of any of the BidKit Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (d) subject to applicable law, upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer become the subject of bankruptcy or similar proceeding.

8.3 Survival. Upon termination or expiration of this Agreement, Customer’s payment obligations, the terms of this Section 8.3 and the terms of the following Sections will survive: Section 2.2 (Data Storage), Section 2.3 (Use of BidKit Services), Section 2.4 (Restrictions), Section 4 (Ownership and Confidentiality), Section 5 (Data Ownership), Section 6 (Disclaimer), Section 7 (Exclusion of Damages; Limitation of Liability), Section 9 (Indemnification; Disputes) and Section 10 (General).

Indemnification; Disputes

9.1 Indemnification by Customer. Customer will indemnify and hold BidKit harmless against any actual or threatened claim, loss, liability, damage, expense, cost, attorney’s fees, proceeding, third-party discovery demand, governmental investigation or enforcement action (“Claim”) arising out of or relating to Customer’s activities under this Agreement or use of BidKit Services or the BidKit Website or Customer’s acts or omissions in connection with the provision of any Data, including without limitation, any intellectual property claims relating to the Customer and any violation by Customer or its End Users of the terms of Section 2.4 (Restrictions). BidKit will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. BidKit reserves the right, at Customer’s expense, to retain separate counsel for BidKit or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section 9. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against BidKit in connection with any Claim. Customer will also be liable to BidKit for any costs and attorneys’ fees BidKit incurs to successfully establish or enforce its right to indemnification under this Section 9.

9.2 Governing Law. Except as provided in Section 9.3, this Agreement will be governed by the laws of the State of Michigan, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

9.3 Arbitration. Except as provided in this Section 9.3 or for the collection of any Quoted Fees, any dispute arising under this Agreement will be determined by binding arbitration in the metropolitan Detroit, Michigan area in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the “Federal Arbitration Act”).

(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of Michigan and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

(b) Injunctive Relief. Notwithstanding any provision in this Section 9.3 to the contrary, BidKit may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of the terms of this Agreement.

(c) Individual Basis Only. It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only.

CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.

9.4 Indemnification by BidKit. BidKit will indemnify and hold Customer harmless against any actual or threatened claim, loss, liability, damage, expense, cost, attorney’s fees, proceeding, third-party discovery demand, governmental investigation or enforcement action (“Claim”) arising out of or relating to BidKit’s activities under this Agreement or use of BidKit Services or the BidKit Website, all to the extent the Claims are not subject to Sections 6 or 7 of these Terms of Service. BidKit will cooperate as fully as reasonably required in the defense of any Claim, at BidKit’s expense. Customer reserves the right, at BidKit’s expense, to retain separate counsel for Customer or, if BidKit has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section 9. BidKit will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Customer in connection with any Claim. BidKit will also be liable to Customer for any costs and attorneys’ fees Customer incurs to successfully establish or enforce its right to indemnification under this Section 9.

General

10.1 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without BidKit’s prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void.

10.2 Amendment; Waiver. No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.3 Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit BidKit in any way and will not attempt to do so or imply that it has the right to do so. Notwithstanding the foregoing, Customer shall pay to BidKit any and all costs of collection of any Quoted Fees or other amounts payable to BidKit, including without limitation attorney’s fees.

10.4 Unenforceability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.

10.5 Notices. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. BidKit may use Customer’s current address, as provided by Customer in connection with billing and payment activities. BidKit’s current address may be found on its website.

10.6 Other Terms. This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by BidKit, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

10.7 Force Majeure. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party’s control (each, a “Force Majeure Event”) if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than 30 days.

10.8 Government Terms. BidKit provides the BidKit Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the BidKit Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The BidKit Services were developed fully at private expense.

10.9 Availability. Like all web services, BidKit’s web sites delivering the products and services may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions. Although BidKit will make reasonable effort to minimize such downtime, BidKit does not guarantee 100% availability of its products and services.

Last Updated

December, 2016

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