Terms of Service
AGREEMENT
This Agreement (hereinafter referred to as the "Agreement") explains the
contractual agreement between HostBidding.com, a Pennsylvania corporation having
its principle place of business in Pittsburgh, Pennsylvania ("HostBidding.com,"
"we," "us") and you ("Company," "you," "your") who
agrees to the terms of this Agreement by clicking the "I AGREE" checkbox
on the Buyer Registration form under "Part D: Agreements." This Agreement is
made to be effective as of the date accepted by HostBidding.com following your
execution and submission of this Agreement by clicking the "I AGREE"
checkbox on the Buyer Registration form under "Part D: Agreements." This
Agreement governs your use of the HostBidding.com Web Site (the "Web Site")
and transactions conducted through this Web Site including, but not limited to,
the billing and payment services described herein. NOW, THEREFORE, in
consideration of the mutual covenants and agreements of the parties contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending to be bound, hereby agree
as follows:
1. CLICK THE "I AGREE" CHECKBOX
By using the Web Site clicking the "I AGREE" checkbox on the Buyer
Registration form under "Part D: Agreements," you acknowledge your acceptance of
the terms and conditions of this Agreement. By accepting the terms and
conditions of this Agreement and completing the registration process, you are
simultaneously (i) registering as a "Registered User" (as defined
herein), (ii) designating yourself as a "Company" (as defined in Section
3) (iii) representing and warranting that you can legally enter into this
Agreement, and (iv) agreeing to the terms and conditions of this Agreement. If
you do not accept this Agreement, you are not authorized to use the Web Site. If
you have any questions about this Agreement, please call us at (412) 687-2228 or
contact info@HostBidding.com. The term
"Registered Users" includes all individuals or entities who have registered
through the HostBidding.com Web Site.
2. BACKGROUND
The Web Site provides a venue for Companies to post jobs and search for Hosting
Providers. The Web Site also provides Companies with billing and payment
services described in Section 4(A) ("Billing and Payment Service(s)"),
thereby reducing the paperwork and time associated with invoicing and payment
processes, tax reporting and filing services on Form 1099 as described in
Section 4(B) ("1099 Services"), escrow services described in Section
4(C), dispute resolution services described in Section 4(D) as well as other
services which HostBidding.com may offer to Companies from time to time,
including, but not limited to, other tax filing services, which shall be subject
to the terms and conditions of this Agreement and any supplement to this
Agreement ("Other Services") (together, with the Billing and Payment
Services and 1099 Services, referred to as the Service(s) as defined
herein). Via the Web Site, we provide certain information about our products,
services and users, and certain other third party information. We may add,
delete or modify some or all of our services and information at any time.
HostBidding.com and you wish to enter into an Agreement wherein HostBidding.com
agrees to provide to you, and, if applicable pursuant to the payment terms
described in Section 9 hereof, you agree to pay for, certain specified services
more fully described herein.
3. COMPANIES
By clicking the "I AGREE" checkbox on the Buyer Registration form
under "Part D: Agreements" and registering with the HostBidding.com Web Site,
you are designating yourself as a "Company." "Companies" are entities looking
for Hosting Providers to perform a specific set of services on a part time
and/or consulting basis.
4. SCOPE OF SERVICES
HostBidding.com shall provide services to both Hosting Providers and Companies.
"Hosting Providers," as used in this Agreement, means individual Hosting
Providers ("Individual Hosting Providers") or vendors operating as corporations,
partnerships or limited liability companies ("Corporate Vendors") with specific
skill sets that are looking for part time and/or consulting opportunities.
A. HostBidding.com facilitates the preparation of "Invoices" (as
defined in Section 7) by Hosting Providers, submits such Invoices to you and
other Companies on behalf of Hosting Providers, collects the "Payment"
(as defined in Section 7) and remits the Payment (less a Service Charge) to the
applicable Hosting Provider ("Billing and Payment Services"). The Billing
and Payment Services shall be provided to Registered Users via the
HostBidding.com Web Site and shall be in the form deemed appropriate by
HostBidding.com from time to time. HostBidding.com may add, delete, or modify
some or all of the Services at any time. We do not control the actual
transactions between Hosting Providers and Companies. Accordingly, we do not set
or endorse: (i) the price, contract terms, quality, conformance or legality of
the services or jobs advertised or offered; (ii) the ability of Companies to
offer employment or any other type of working relationship; or (iii) the ability
of Hosting Providers to offer services and/or perform accordingly. We cannot and
do not control whether any Company will complete the payment they offer. We are
not responsible for any transaction and/or contact, or the result of any such
transaction and/or contact made by and between Registered Users. From time to
time, we will provide features and services which either are or shall be set
forth in separate sections of the Web Site, which are subject to the terms of
this Agreement, but are also subject to the additional terms and pricing
specified on the Web Site. With respect to these features and services provided
on our Web Site, you will be charged, and agree to pay us any fees, as set forth
in separate sections of the Web Site detailing such features and services.
B. At your request, HostBidding.com shall also issue to each Individual
Hosting Provider whom you engage a summary on Form 1099 of Payments (less
Service Charges) paid to such Individual Hosting Provider ("1099 Services").
You hereby acknowledge that, although HostBidding.com may provide 1099 Services
to Companies, your contract or agreement to obtain services and make payments is
an agreement between you and a Hosting Provider. If it is determined by a court
of competent jurisdiction that a contract exists between a Hosting Provider you
have engaged and HostBidding.com for the Hosting Provider to provide any
services pursuant to an Assignment (as defined in Section 7), you hereby
expressly agree to indemnify HostBidding.com for any and all liability, under a
theory of contract or any related legal obligation, for any amounts owed to a
Hosting Provider you have engaged through the use of, or arising out of, our
services.
C. (i) At your request, HostBidding.com will accept an advance payment
from you for a Hosting Provider’s services, provided that you have accepted such
Hosting Provider’s bid for a job you posted (“Escrow Service”). We will
hold such funds (“Escrowed Funds”) until you and the Hosting Provider you
have retained agree that the funds should be released to the Hosting Provider or
until you and the Hosting Provider have concluded the process of the Dispute
Resolution Services (as defined in Section 4(D)). You acknowledge that, while
Escrowed Funds will be kept in a separate account from our internal funds, such
Escrowed Funds will exist in a pooled fund together with other funds escrowed
with us by other Companies.
(ii) After you indicate your approval of a Hosting Provider’s work product given
to you in response to your job posting and such Hosting Provider’s bid (“Deliverables”),
such approval to be made through the Web Site, we will disburse the Escrowed
Funds to such Hosting Provider. If you do not approve of the Deliverables, you
agree to be bound by the terms of Section 4(D) below, relating to dispute
resolution.
(iii) If, for any reason, you or a Hosting Provider request Dispute Resolution
Services through the Web Site with regard to any job posting, Deliverable or
payment therefor, we will notify both you and such Hosting Provider that the
matter will be addressed through the Dispute Resolution Services.
(iv) By using HostBidding.com for the Escrow Services, you expressly acknowledge
that HostBidding.com is not acting in a fiduciary capacity for either you or a
Hosting Provider. You agree and acknowledge that the Escrow Services are being
provided to Registered Users administratively.
D. (i) HostBidding.com offers dispute resolution services (“Dispute
Resolution Services”) only to those Registered Users that have elected to
use the Escrow Service and who are engaged in a dispute over a Deliverable that
is (i) pursuant to a job posting by a Company through the Web Site, (ii)
pursuant to a bid for by a Hosting Provider through the Web Site for such job
posting and (iii) pursuant to an acceptance through the Web Site by the Company
for such bid. You understand that the Dispute Resolution Services are being
provided to you administratively as a benefit of using the Web Site and the
Escrow Services. You agree and acknowledge that (i) HostBidding.com is not
providing legal services to you or to a Hosting Provider, (ii) HostBidding.com
will not advise you regarding any legal matters and (iii) if you desire to have
legal counsel, you will seek independent legal counsel licensed to practice law
in your jurisdiction and not rely on HostBidding.com for any such counsel. You
agree to indemnify and hold harmless HostBidding.com and any of our affiliates
against any damages or liability you may suffer as a result of using the Dispute
Resolution Services. If you do not agree to use this Dispute Resolution Services
under these terms, you should not elect to use the Escrow Services.
(ii) In the event of any dispute between you and a Hosting Provider relating to
a Deliverable, you agree to mediate such dispute in good faith before
HostBidding.com for a period of twenty (20) business days. Such twenty business
day period shall be deemed to have begun the day that you or a Hosting Provider
requests Dispute Resolution Services through the Web Site. If the result of such
mediation is acceptable to both you and to a Hosting Provider with which you are
engaged in a dispute, you agree to indicate your approval of such mediation
through the Web Site and HostBidding.com will disburse Escrowed Funds in
accordance with the results of such mediation. If you are dissatisfied with the
progress, or if twenty (20) business days have lapsed since you have notified
HostBidding.com of a dispute between you and a Hosting Provider, you agree to
submit your dispute to binding arbitration as further set forth below.
(iii) HostBidding.com, or any third-party to which HostBidding.com may refer a
dispute in its sole discretion, shall serve as the arbitrator in any dispute
between you and a Hosting Provider which cannot be resolved through the
mediation process described above. You acknowledge and agree that
HostBidding.com will only consider the Deliverables Agreement (as defined below)
entered into between you and Hosting Provider through the Web Site. For purposes
of Dispute Resolution Services, the (“Deliverables Agreement”) shall
include your original job posting, a Hosting Provider’s bid and any changes,
amendments or related communications thereto that have been conducted through
the Web Site.
(iv) HostBidding.com shall, in good faith, have the right to construe any
Deliverables Agreement based on your and a Hosting Provider’s course of dealing.
In rendering its decision, HostBidding.com shall only be obligated to consider
the following: (i) the Deliverables Agreement, (ii) the parties course of
dealings, as evidenced by activity on or communications through the Web Site,
(iii) the actual Deliverable itself and (iv) any information or communication
that both you and a Hosting Provider agree should be considered.
(v) HostBidding.com shall render its decision within five (5) business days of a
failed mediation. During this time, you are encouraged to continue to negotiate
an amicable settlement with the Hosting Provider with which you are engaged in a
dispute. You agree that the decision of HostBidding.com, acting as an arbitrator
during our rendering of the Dispute Resolution Services, shall be final and
binding on you and the Hosting Provider. Accordingly, after we have rendered a
decision, we will disburse Escrowed Funds from our escrow account in accordance
with our decision.
(vi) In the event that you are the prevailing party in its arbitration decision,
you agree that you shall have no right, title to, interest in or license to the
Deliverable that is the subject matter of the dispute. In such case, you agree
to return any physical copies of such Deliverable in your possession and destroy
any electronic copies that you have.
(vii) BY CLICKING “I AGREE” TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT, IN
CONSIDERATION OF OUR AGREEMENT TO PROVIDE YOU WITH ESCROW SERVICES AND DISPUTE
RESOLUTION SERVICES, YOU HEREBY RELEASE HostBidding.COM AND ALL OF OUR
AFFILIATES FROM ANY DAMAGES OR LIABILITY WHATSOEVER RELATED TO YOUR ENGAGEMENT
OF A Hosting Provider OR OUR SERVICES, INCLUDING WITHOUT LIMITATION, THE ESCROW
SERVICES AND DISPUTE RESOLUTION SERVICES. YOU FURTHER AGREE TO INDEMNIFY
HostBidding.COM AND ALL OF OUR AFFILIATES AGAINST ANY AND ALL DAMAGES OR
LIABILITY THAT WE MAY INCUR, INCLUDING ATTORNEYS FEES AND COSTS, IN CONNECTION
WITH OUR PROVISION OF SERVICES TO YOU, INCLUDING WITHOUT LIMITATION THE ESCROW
SERVICES AND DISPUTE RESOLUTION SERVICES.
5. SYSTEM INTEGRITY
You may not use any device, software or routine, including but not limited to
any viruses, trojan horses, worms, time bombs, cancelbots or denial-of-service
attacks, intended to damage or interfere with the proper working of the Web Site
or any transaction being conducted on our site, or to surreptitiously intercept
or expropriate any system, data or personal information from the Web Site. You
may not take any action that imposes an unreasonable or disproportionately large
load on our infrastructure, including but not limited to "spam" or other such
unsolicited mass emailing techniques.
6. INFORMATION POSTED ON THE WEB SITE
A. You are solely responsible for information that you post on our Web
Site, including but not limited to any posting or listing in any public message
area or through any email feature. You grant us a non-exclusive, worldwide,
perpetual, royalty free, irrevocable right to exercise all copyright and
publicity rights with respect to this information. Your information must not:
(a) infringe any third party's rights, including but not limited to intellectual
property, publicity or privacy; (b) be defamatory, trade libelous, threatening
or harassing; nor (c) be obscene, indecent or contain pornography. We do not
endorse any information posted by Registered Users and we are not liable for any
such information posted on our site, including but not limited to any
information posted about you. We reserve the right to take any action with
respect to information posted on our site which we believe is appropriate in our
sole discretion with respect to such information, including but not limited to
termination of this Agreement. However, we cannot, nor do we, control the
information provided by you or other Registered Users or other content providers
which is made available through our system. By its very nature, other people's
information may be offensive, harmful, inaccurate, or in some cases may be
mislabeled or deceptively labeled. Information on the HostBidding.com Web Site
is provided "AS IS" and may contain technical inaccuracies or typographical
errors.
B. The Web Site may contain links to third-party web sites not under the
control or operation of HostBidding.com. When we provide links, we do so only as
a convenience and do not endorse and are not responsible for the content of any
linked site or any link contained in a linked site.
7. PROCESS
When a Hosting Provider completes an assignment for which you have engaged the
Hosting Provider (or a portion of such an assignment) ("Assignment") for
a Company, such Hosting Provider will complete the electronic invoice form (the
"Invoice") and submit it to HostBidding.com via the HostBidding.com Web
Site. The Hosting Provider will provide HostBidding.com with a list of items,
including, but not limited to, hours worked, payment required and description of
Assignment(s), to be included on the Invoice ("Invoice Details"). Such
Invoice Details will not be final until and unless such Hosting Provider has
authorized their inclusion or waived the right to review such Invoice Details.
If a Hosting Provider waives his, her or its right to review the Invoice
Details, all items in the Invoice Details will be included on the Invoice as
received by HostBidding.com. HostBidding.com ENCOURAGES ALL Hosting Providers TO
REVIEW INVOICE DETAILS PRIOR TO THEIR INCLUSION IN THE INVOICE TO BE SENT TO A
COMPANY. However, due to the inherent nature of the Internet and electronic
communication transactions, HostBidding.com cannot take responsibility for the
accuracy of all transmissions of Hosting Provider Invoices. After the completion
of the Invoice Detail process between the Hosting Provider and HostBidding.com
as described above, HostBidding.com will then submit the Invoice to the Company
and the Company shall submit the payment for a Hosting Provider's services with
respect to the Assignment(s) specified in the Invoice (the "Payment") to
HostBidding.com to be processed by HostBidding.com according to the Payment
Terms outlined in Section 9 of this Agreement.
8. RELATIONSHIP AND OBLIGATIONS OF PARTIES
A. HostBidding.com provides Services for Registered Users, including you,
other Companies and Hosting Providers. All parties are independent contractors
vis-ŕ-vis HostBidding.com with respect to all matters arising out of this
Agreement. No Registered User shall be considered the employee, agent, partner
or joint venturer of HostBidding.com and HostBidding.com shall not be considered
the Buyer, agent, partner or joint venturer of any Registered User.
B. You agree and understand that HostBidding.com is simply acting to
process Invoices to Companies on behalf of Hosting Providers and to receive and
process Payment for Hosting Providers' services from Companies. HostBidding.com
is not responsible for the timeliness or accuracy of the Invoices .
HostBidding.com is under no obligation to ensure the timeliness, accuracy,
completion or workmanship of any Assignment you give to a Hosting Provider.
C. You agree that HostBidding.com, by providing the Services hereunder,
does not accept liability as an Buyer - either singularly or jointly - of any
Hosting Provider and that the employment/independent contractor status of any
Hosting Provider as such status pertains to such Hosting Provider's relationship
with you is solely determined by an agreement between the Hosting Provider and
you. You agree and understand that HostBidding.com will not in any way be
involved in the terms and conditions of your employment or contracting
arrangement with any Hosting Provider and that any services for which you engage
a Hosting Provider are provided by and under separate agreement between you and
such Hosting Provider. HostBidding.com is not responsible for and will not
control the manner in which a Hosting Provider operates and is not involved in
the hiring, firing, discipline or working conditions of the Hosting Provider.
HostBidding.com will not provide any Hosting Provider with any materials or
tools with which to complete any projects for which you engage a Hosting
Provider. Any problems, complaints or questions regarding the work environment,
performance or other terms and conditions of employment and/or contracting must
be resolved by and between you and any Hosting Provider you engage.
D. You agree that you will abide by any and all applicable
non-discrimination, employment, tax and other federal and state statute(s),
regulation or common law. You agree to hold harmless and indemnify
HostBidding.com for any and all liability arising from a violation of any such
statute, regulation or common law.
9. PAYMENT TERMS
A. Companies do not pay HostBidding.com a fee for the SafePay Billing and
Payment Services. Subject to compliance with the SafePay Non-Compliance Fee (as
defined herein), Companies are solely responsible for submitting the Payment due
to a Hosting Provider for the completion of an Assignment to HostBidding.com.
All such Payments shall be payable to HostBidding.com in U.S. currency.
Notwithstanding the above, HostBidding.com may, at a later date, and in its sole
discretion, charge a fee to Companies for Services pursuant to this Agreement,
provided Companies are given advance notice prior to any Company fee
implementation.
A.1 SafePay Non-Compliance Fee Provision. You agree that in the event you
decide to engage any Hosting Provider in a full or part-time employment
situation or consulting contract for which the Hosting Provider is to be
compensated outside HostBidding.com's SafePay invoicing and payment system, you
will contact HostBidding.com at 1-888-678-0136 for the applicable Safepay
Non-Compliance Fee.
B. Unless otherwise agreed to in writing between you and HostBidding.com,
HostBidding.com shall provide you with Invoices for any Payment due to a Hosting
Provider you engage. If you reasonably dispute any Invoice amount, you must pay
all undisputed amounts within the time frames specified above and the parties
will cooperate to verify any disputed amounts. HostBidding.com agrees that any
Invoice amounts reasonably disputed by you will not be payable to a Hosting
Provider until such dispute is resolved. If you have submitted Payment to
HostBidding.com and such payment amount is then reasonably disputed by you
before HostBidding.com has disbursed the disputed amount to a Hosting Provider,
HostBidding.com agrees, at your written request, to hold such Payment on behalf
of Company until the dispute is resolved. You hereby agree and acknowledge that
paying any Invoice constitutes your acknowledgement of completion of all work
covered by such Invoice and the quality, accuracy and thoroughness of such work.
C. You are responsible for payment and reporting of any taxes. Other than
in connection with 1099 Services, HostBidding.com is not obligated to determine
the applicability of any taxes or to remit, collect or report any such
applicable taxes, unless otherwise agreed to by both parties pursuant to the
terms of any provision of tax services provided to you by HostBidding.com.
D. In the event of nonpayment by you of any Invoice amount when due,
which has not been reasonably disputed by you (even where such non-payment
occurs on account of your bankruptcy or insolvency), HostBidding.com may suspend
providing Services pursuant to this Agreement to you and/or any Hosting Provider
you engage until such time as the past due Invoices have been paid in full. In
the event HostBidding.com stops providing Services pursuant to this Section,
HostBidding.com shall not be penalized for delays and shall incur no liability
to you caused by such cessation.
10. TERM AND TERMINATION
A. This Agreement shall become effective upon the execution hereof by the
parties, as described above, and shall continue until terminated by
HostBidding.com or you as provided for under the terms of Section 10(B) of this
Agreement.
B. Unless otherwise agreed to in writing between the parties, either
party may terminate the Service at any time upon notice to the other party. In
such event, (i) HostBidding.com shall continue to perform the Service necessary
to complete any invoicing and payment process or other process already set into
motion ("Open Transaction"); and (ii) you shall continue to be obligated
to pay all Hosting Providers for any Assignment for which you have engaged such
Hosting Providers in order to complete any Open Transaction.
11. PRIVACY AND CONFIDENTIALITY
A. Your use of the Web Site and the services provided therein and thereby
is governed by the terms of this Agreement and the
HostBidding.com
Privacy Policy. It is your responsibility to review the HostBidding.com
Privacy Policy ("Privacy Policy"), which is incorporated by reference
into this Agreement in its entirety, and we suggest that you review the Privacy
Policy and print a copy for yourself. The Privacy Policy is posted on the Web
Site and may be updated from time to time. If at any time you are not in
compliance with the Privacy Policy, we have the right to terminate your rights
of use and access to the Web Site and to terminate this Agreement.
Unfortunately, we cannot ensure that disclosure of your personal information
will not occur in ways not described in the Privacy Policy. We may be required
by law to disclose information to government authorities, law enforcement
agencies or third parties upon subpoena, and you authorize us to disclose
information as we believe, in our sole discretion, is necessary or appropriate.
B. Any user identification ("User ID") and password, and any
authorization codes or similar verification identifiers provided to you by us
should be maintained as confidential and should not be distributed or disclosed
to third parties. It is your responsibility to notify us if you need to change
or discontinue your User ID and password and/or authorization codes, if
applicable. You may only do so by: (i) sending us a notice, or (ii) contacting
us at info@HostBidding.com.
12. OWNERSHIP
The Web Site and all intellectual property rights related to the Web Site,
including but not limited to copyrights, trademarks,service marks and any
feedback left by Registered Users on the Web Site, are owned or licensed by us,
and all right, title and interest in the Web Site and the related intellectual
property rights remain our property. You may not reproduce, reverse engineer,
decompile, disassemble, modify or create derivative works with respect to the
Web Site and the related intellectual property, including any services provided
via the Web Site, and this Agreement does not grant you permission to do so.
Certain content is licensed from third parties. All such third party content and
all intellectual property rights related to that content belong to the
respective third parties. You may not remove any copyright, trademark, or other
intellectual property or proprietary notice or legend contained in the Web Site,
including any Web Site content.
13. WARRANTIES
A. Each party warrants that it has the right and or full corporate power
and authority to enter into this Agreement.
B. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS," WHERE IS, AND
WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESSED OR IMPLIED, ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO
REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE
QUALITY, IDENTITY OR RELIABILITY OF ANY REGISTERED USER OR THIRD PARTY, OR AS TO
THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY REGISTERED USER.
14. INDEMNIFICATION
A. You agree to defend, hold harmless and indemnify HostBidding.com from
and against any and all losses, costs, expenses, damages or other liabilities
incurred by HostBidding.com from and against any cause of action, claim, suit or
proceeding brought by a third party against HostBidding.com in connection with
your use of the Services including any payment obligations incurred through use
of the Services. You further agree to indemnify, defend and hold HostBidding.com
harmless from and against any and all claims, demands, actions, costs,
liabilities, losses and damages of any kind (including attorneys' fees)
resulting from: (i) your use of the Web Site (ii) your decision to supply credit
information via the Web Site, including personal financial information; (iii)
your decision to submit postings and accept offers from other Registered Users;
(iv) any breach of contract or other claims made by Registered Users with which
you conducted business through the Web Site; (v) your breach of any provision of
this Agreement; (vi) any liability arising from the tax treatment of Payments or
any portion thereof; (vii) any negligent or intentional wrongdoing by any
Registered User; (viii) any act or omission of yours with respect to the Payment
in respect of Hosting Provider Assignments; (ix) your dispute of or failure to
pay any Invoice or any other Payment; and/or (x) your obligations to a Hosting
Provider. Any such indemnification shall be conditioned on our: (a) notifying
you in writing of any such claim, demand, action, cost, liability, loss or
threat of any thereof; (b) cooperating with you in the defense or settlement
thereof; and (c) allowing you to control such defense or settlement. We shall be
entitled to participate in such defense through our own counsel at our own cost
and expense. We reserve the right to report any wrongdoing of which we become
aware to the applicable government agencies or otherwise.
B. In connection with your indemnification obligations as provided for
above, HostBidding.com agrees to (a) notify you in writing promptly after
learning of any such claim; (b) turn over to you all responsibilities and
control with respect to such claim; and (c) reasonably cooperate with you in the
defense thereof.
15. LIMITATION OF LIABILITY
A. IN NO EVENT SHALL HostBidding.com BE LIABLE TO YOU OR ANY OTHER
REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES
PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS
OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
B. In the event that you have a dispute with one or more Registered
Users, you release us (and our agents and employees) from claims, demands and
damages (actual, consequential and punitive) of every kind and nature, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or
in any way connected with the Web Site, the Services, or such dispute. You waive
the provisions of any state law limiting or prohibiting a general release.
C. Notwithstanding any other provision of this Agreement, in no event
will HostBidding.com's liability to you for any action or claim related to the
Services provided under this Agreement, whether based on contract, tort,
negligence, or any other theory of liability, exceed in the greater of: (A)
$1000 or (B) the aggregate amount of Service Charges actually collected by
HostBidding.com from you for the Services to which the liability relates during
the six (6) month period immediately preceding the determination of such
liability.
D. Our contracts with certain of our suppliers provide for scheduled
maintenance, preventative maintenance, and emergency maintenance work. We will
have no liability whatsoever for any unavailability of the Web Site caused by
our supplier's performance or lack of performance of the maintenance work needed
to keep the Web Site operable. We will also not have any liability for any loss
of data or transactions resulting from delays, non-deliveries, mis-deliveries or
service interruptions caused by us, any third party acts, the acts of any web
services provider or problems with the Internet infrastructure and networks
external to the Web Site. The limitations of liability provided in this
Agreement inure to the benefit of us, our affiliates and all of our respective
officers, directors, employees, attorneys and agents.
16. ASSIGNMENT
HostBidding.com has the right to transfer or assign this Agreement and the
rights hereunder to any other person or entity without your consent. You do not
have the right to assign or transfer this Agreement or any rights thereunder to
any other person or entity without our prior written consent. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the successors and permitted assigns of the parties hereto.
17. GOVERNING LAW AND JURISDICTION
The HostBidding.com Web Site (excluding linked sites) is operated by us from our
offices within the Commonwealth of Pennsylvania, United States of America. It
can be accessed from all 50 states and from other countries around the world. As
each of these places has laws that may differ from those of Pennsylvania, by
accessing the Web Site, you agree that this Agreement and your use of the Web
Site, and the services offered therein and thereby, shall be governed in all
respects by the internal substantive laws of the Commonwealth of Pennsylvania,
without regard to conflict of laws provisions and shall not be governed by the
United Nations Convention on the International Sale of Goods. You further submit
to jurisdiction and venue in the state and federal courts located in the
Commonwealth of Pennsylvania, Allegheny County and further agree that any cause
of action you may bring arising under your use of the Web Sites shall be brought
by you exclusively in a state or federal court located in the Commonwealth of
Pennsylvania, Allegheny County. We make no representation that materials on the
Web Site are appropriate or available for use in other locations, and accessing
them from territories where their contents are illegal is prohibited. Those who
choose to access this site from other locations do so on their own initiative
and are responsible for compliance with local laws.
18. STATE SPECIFIC LEGAL NOTICES
Pursuant to California Civil Code Section 1789.3 and California Business and
Professions Code Section 17538, residents of California are hereby advised of
the following: HostBidding.com, located in Pittsburgh, Pennsylvania, is the
provider of the electronic commercial service on this site. Registered Users are
notified in advance regarding any applicable service charges. The Complaint
Assistance Unit of the Division of Consumer Services of the Department of
Consumer Affairs in California may be contacted in writing at 400 R. Street,
Suite 3090, Sacramento, CA 95814 or by calling 1-800-952-5210. Upon your
request, you may have this Agreement sent to you by email. Please feel free to
contact HostBidding.com to resolve a complaint regarding any aspect of service
relating to this site by writing to the above address, or contact us at
info@HostBidding.com.
19. MISCELLANEOUS
A. This Agreement, and all writings, web pages, agreements and policies,
including, but not limited to, the
HostBidding.com
Privacy Policy, incorporated herein, contains the entire Agreement between
the parties and supersedes any prior agreement, negotiation or understanding of
the parties, whether oral or in writing, with respect to the subject matter of
this Agreement. Any representations, promises or conditions not incorporated
herein shall not be binding upon HostBidding.com or Registered User or their
respective successors and assigns. This Agreement may not be modified or amended
except in a writing signed by a duly authorized representative of both parties.
B. If any provision of this Agreement is held to be invalid or
unenforceable, such provision will be struck and the remaining provisions
enforced. Headings are for reference purposes only. Failure of either party to
act or exercise its respective rights under this Agreement upon the breach of
any other terms hereof by the other party shall not be construed as a waiver of
such a breach or prevent said party from thereafter enforcing strict compliance
with any or all of the terms thereof.
C. This Agreement does not create a relationship of agency, partnership,
or representation between HostBidding.com and you for any purpose whatsoever, it
being understood between the parties hereto that HostBidding.com and Registered
User are to act as an independent contractors and are not authorized to make any
contract, agreement, warranty or representation on behalf of each other.
D. Neither of the parties to this Agreement shall be responsible for the
failure to perform or any delay in performance of any obligation hereunder due
to labor disturbances, accidents, fires, floods, telecommunications or Internet
failures, strikes, wars, riots, rebellions, blockades, acts of government,
governmental requirements and regulations or restrictions imposed by law or any
other similar conditions beyond the reasonable control of such party. The time
for performance of such party shall be extended by the period of such delay.
E. You must comply with all applicable laws, statutes, ordinances and
regulations regarding: (i) your use of the Web Site and the Services and any
Other Services provided thereby or therein; (ii) your ordering or posting of,
services or offers, if applicable; and (iii) the posting and retrieval of
information by you, including without limitation those governing antitrust,
unfair competition, false advertising, taxation and export control. You are
responsible for paying all applicable fees and taxes you incur in connection
with access to our servers and our Web Site.
F. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania without regard to its conflicts of
laws provisions.
G. The provisions of Sections 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16,
17, 18 and 19 will survive any termination or expiration of this Agreement for
any reason.
H. All notices required or permitted to be given under this Agreement,
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by pre-paid telex, telefax or telegram, or mailed
first-class, postage pre-paid, by registered or certified mail (notices sent by
telex or telefax, or telegram, shall be deemed to have been given on the date
sent; those mailed shall be deemed to have been given ten (10) business days
after mailing) to the addresses set forth below or to such other address as any
party shall designate by notice in writing.
HostBidding.com
P.O. BOX 1116
Campbell, CA 95009
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the Effective Date. By clicking the "I AGREE" checkbox on the
Buyer Registration form under "Part D: Agreements," you agree to the terms of
this Agreement and, by reference herein, the terms of the
HostBidding.com
Privacy Policy.
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