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The User Agreement below is effective for all users on June 1th, 2008.
PREAMBULE
THE FOLLOWING DESCRIBES THE TERMS ON WHICH FRESHBID INC. OFFERS YOU ACCESS TO OUR SERVICES.
This Agreement (the “Agreement“) describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of www.freshbid.com (the "Site") and for the websites of our parent, subsidiaries and international affiliates. If you do not agree to be bound by the terms and conditions of this Agreement, do not use the Site or access our services.
You must read, agree with and accept all of the terms and conditions contained in this Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of Freshbid. Please note that underlined words and phrases are links to these pages and websites. By accepting this Agreement, you also agree that your use of other Freshbid websites will be governed by the user agreement and privacy policies posted on those websites.
Only we may amend this Agreement and we may do so at any time by posting the amended terms on our site. All amended terms shall automatically be effective 30 days after they are initially posted on our site. In addition, we will notify you in accordance with your Notification Preferences.
This agreement is effective upon acceptance in registration for new registering users and is otherwise effective on June 1th, 2008 for all users registered.
1. Membership Eligibility
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended Freshbid members. If you are under the age of 18, you can use this Site only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use the Site.
If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement.
Further, your Freshbid account (including feedback) and User ID may not be transferred or sold to another party.
2. Fees and Services
Joining in and searching items on Freshbid is free. We do charge fees when your listed items on the Site are seen by other users.
We may charge fees for premium services such as featuring your items in the Featured item's section.
Our fees are non-refundable. We may change our Fees and Credits and the fees for our services from time to time. Our changes to the policy are effective after we provide you with at least fourteen (14) days' notice of the changes by posting the changes on the Site.
However, we may choose to temporarily change our Fees and Credits and the fees for our services for promotional events (for example, free listing days) and such changes are effective when we post the temporary promotional event on the Site.
We may in our sole discretion change some or all of our services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and our website and all applicable taxes.
Certain taxes and government charges may be payable in relation to the purchase transaction. We accept no responsibility for such taxes and other government charges on transactions on the Site.
3. Freshbid is a Venue
3.1 Freshbid is not an Auctioneer.
Although we are commonly referred to as an online auction web site, it is important to realize that we are not an "auctioneer." Instead, the Site acts as a venue to allow anyone to offer, sell, and buy Fresh Produce and Vegetables, at anytime, from anywhere. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality or safety of the items advertised the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. We cannot ensure that a buyer or seller will actually complete a transaction.
3.2 Identity Verification.
We use many techniques to verify the accuracy of the information our users provide us when they register on the Site. However, Freshbid cannot and does not confirm each user's purported identity. We encourage you to communicate directly with potential trading partners through the tools available on the Site. You may also wish to consider using a third party escrow service or services that provide additional user verification.
3.3 Release in case of dispute
Because we are a venue, in the event that you have a dispute with one or more users, you release Freshbid (and our parent and its subsidiaries and joint ventures and all such person, officers, directors, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
3.4 Release for acts and omissions of users
We do not control the information provided by other users which is made available through the Site. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using the Site. Please note that there are also risks of dealing with foreign nationals, underage persons or people acting under false pretence. By using this Site, you agree to accept such risks and Freshbid is not responsible for the acts or omissions of its users.
4. Listing and Selling
4.1 Listing Description.
You must be legally able to sell the item(s) you list for sale on the Site. You must describe your item and all terms of sale on the listing page of the Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category.
4.2 Fraud.
Without limiting any other remedies, we may suspend or terminate your account if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with the Site.
4.3 Intellectual Property
Freshbid works to ensure that listed items do not infringe upon the copyrights, trademarks or other third parties’ rights. Freshbid participants and other rights owners can report listings offering infringing items, and request that such items be removed. In that event, we may remove the item, suspend or terminate your account.
4.4 Manipulation.
Neither buyers nor sellers may manipulate the price of any item nor may you interfere with other user's listings or transactions.
5. Your Information
5.1 Definition.
"Your Information" is defined as any information you provide to us or other users in the registration, buying or listing process, in any public message area (including the feedback area) or through any email feature. You are responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
Freshbid participants and other rights owners may have limited access to some of your personal information as described in the Privacy Policy.
5.2 Restricted Activities.
Your Information (or any items listed) and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are identical to other items you have up listed but are priced lower than your item's amount; (cc) are concurrently listed for sale on a web site other than Freshbid's (this does not prevent linking to or advertising a Freshbid item from another web site); or (dd) you do not have a right to link to or include.
Furthermore, you may not list any item on the Site (or get involved in any transaction that was initiated using our service) that, by paying to us the listing fee, could cause us to violate any applicable law, statute, ordinance or regulation.
If you are found to be involved in one of those restricted activities, we may remove your items, suspend or terminate your account and that is without prejudice to our legal recourses.
What is more, if you are found to be involved in one of those restricted activities, you release Freshbid (and our parent and its subsidiaries and joint ventures and all such person, officers, directors, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
5.3 License.
Solely to enable us to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, royalty-free, sublicenseable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in Your Information, in any media now known or not currently known. You also waive all moral rights you have in such information. We will only use Your Information in accordance with our Privacy Policy.
6. Access and Interference
The Site contains robot exclusion headers. Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to Freshbid by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
7. Breach
Without limiting other remedies, we may limit your activity, immediately remove your item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
8. Privacy
We do not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your personal information as described in the Privacy Policy. We store and process your information on computers located in the Canada that are protected by physical as well as technical security devices. Our current Privacy Policy is available at http://en.site.freshbid.com/policies.html. If you object to your personal information being transferred or used in this way, please do not use our Site or services.
9. No Warranty
WE, OUR PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED REPRESENTATION, WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY LAW OR THROUGH A COURSE OF DEALING OR USAGE OF TRADE, UNLESS SPECIFICALLY REQUIRED BY LAW.
10. Liability Limit
IN NO EVENT SHALL WE, OUR PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
11. Indemnity
You agree to indemnify and release us and our parent, subsidiaries, affiliates, officers, directors, agents, and employees from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
12. Legal Compliance
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
13. No Agency
You and Freshbid are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
14. Notices
Except as explicitly stated otherwise, any notices shall be given by registered mail to Freshbid Inc., Attn: Legal Department 1751, Rue Richardson Bureau 4102 Montréal Québec H3K 1G6 (in the case of Freshbid) or to the email address you provide to Freshbid during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Freshbid during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
15. Resolution of Disputes
In the event a dispute arises between you and Freshbid, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Freshbid agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as an alternative to litigation.
16.1 Binding Arbitration.
For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than C$15,000, you or Freshbid may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
16.2 Court.
Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Montréal Québec, Canada You and Freshbid agree to submit the case to courts located within Montréal, Québec.
All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim. Should either party file an action contrary to this Section 17, the other party may recover attorneys' fees and costs up to C$1500, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
17. Incorporation
The following policy is incorporated by reference into this Agreement and provide additional terms and conditions related to specific services offered on the Site:
Privacy Policy:
http://en.site.freshbid.com/policies.html
18. Amendment
Each of the policies incorporated precedently may be changed from time to time and are effective immediately after we post the changes on the Site, except the Privacy Policy for which we will provide you with thirty days prior notice. In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to service you use through the Site, which may be posted from time to time.
19. Non compete clause
While this agreement is in force and even after expiration or termination of this agreement you agree not to copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of Freshbid and the appropriate third party, as applicable;
20. General
This Agreement shall be governed in all respects by the laws of the Province of Quebec and the federal laws of Canada applicable therein.
We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our Site may be interfered by numerous factors outside of our control.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
Sections 2 (Fees and Services) with respect to fees owed for our services, 3.4 (Release), 6.3 (License), 7 (Access and Interference), 11 (No Warranty), 12 (Liability Limit), 13 (Indemnity) and 17 (Resolution of Disputes), 19 (Non compete clause) shall survive any termination or expiration of this Agreement.
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