Last Updated: September, 2019
“ClickBid”, “Company,” “we,” “us,” and “our” refer to ClickBid, LLC.
“ClickBid Acceptable Use Policy” means certain terms and conditions relating to the use of the ClickBid Services, available at <https://home.clickbidonline.com/aup>, as same may be updated from time to time, and which are hereby incorporated into this Agreement.
“ClickBid App” means the ClickBid Bidding Application website.
“ClickBid Platform” means the web-based auction Customer interface accessible at https://cbo.io/admin which enable Customer to configure and manage their bidding site and other aspects of the system.
“ClickBid Properties” means the ClickBid Website, the ClickBid App, the ClickBid Platform, the Documentation, and the technical support made available by ClickBid to Customer in connection with the ClickBid Services.
“ClickBid Service(s)” means the services provided by ClickBid under this Agreement, including all software, programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing, including the ClickBid Properties or other services otherwise made available by ClickBid to you.
“ClickBid Website” means the public facing website located at <https://clickbidonline.com/>, including all of its features and content.
“Customer” means the individual or entity entering into an agreement or activating an account with ClickBid for the use of ClickBid Services or purchasing or otherwise using the ClickBid Services for a Customer Event as well as such Customer’s representatives and agents.
“Customer Event” means a [fund-raising] event that interfaces with the ClickBid Services and includes any services (whether web-based or otherwise) made available to the Customer and End Users through the ClickBid Website, the ClickBid App and/or the ClickBid Platform.
“Customer Data” means any Data provided directly by Customer to ClickBid or uploaded, entered or exported by Customer into the ClickBid Services or of which Customer is the source.
“Data” means data and other information made available to ClickBid through the use of the ClickBid Services under this Agreement, including End User information, organizational contact information, auction item data, bid data and post event reconciliation data and any data (a) uploaded directly by Customer into the ClickBid Services; (b) provided by Customer to ClickBid for upload to, entry in or use with the ClickBid Services; (c) uploaded or provided by an End User (except for credit card numbers, expiration dates and security codes) using the ClickBid App; (d) Customer Data; and (e) compiled data relating to a Customer Event, including but not limited to End Users information and item records or bids.
“Documentation” means all of the instructions, online help files and technical documentation made available by ClickBid in connection with use of the ClickBid Services.
“End User” means a user of the ClickBid Services in relation to a Customer Event and includes but is not limited to guests and bidders.
“Equipment” means any equipment, hardware, personal electronic devices, media devices or any other non-software product provided by ClickBid to Customer including but not limited to Readers.
“Personal Information” means any information about an identifiable individual. This may include, for example, an individual’s name, contact information, email address, information relating to his/her ClickBid’s account, including the ClickBid Services used, as well as banking information. It may also include other types of more technical information such as Customer/End User IP addresses, meta-data or browser history, but only when this information can identify you as an individual. Personal information that is de-identified and/or aggregated and cannot be associated with an identifiable individual is not considered to be personal information.
“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.
“you,” “your,” or “yours” refer to either a Customer or End User as the case may be or any other person or entity that accesses or uses the ClickBid Services.
2. ClickBid Customer Program and Services
2.1 Provision of Services. ClickBid will make the ClickBid Services available to Customer and its End Users in accordance with this Agreement, subject to the terms and conditions of this Agreement.
ClickBid grants Customer a non-exclusive, limited, personal and revocable right to:
(a) Offer and make the ClickBid Services available to End Users in connection with a Customer Event; and
(b) Otherwise use the ClickBid Services solely in connection with and as necessary for Customer’s activities hereunder.
ClickBid grants End User a non-exclusive, limited, personal and revocable right to utilize ClickBid Services in connection with a Customer Event.
2.2 Data Storage. Customer and End User each acknowledges that ClickBid does not guarantee the quality or availability of Data storage and agrees that ClickBid has no liability whatsoever for any damage, liabilities, losses (including any loss of Data or profits) or any other consequences that Customer and/or End User may incur with respect to the loss or deletion of Data.
2.3 Use of ClickBid Services. Customer will be solely responsible for its use (whether or not authorized) of the ClickBid Services under its account, including with respect to the quality and integrity of Data and each Customer Event and any configuration settings chosen by Customer. End User will be solely responsible for his/her use (whether or not authorized) of the ClickBid Services under its account, including for the quality and integrity of any Data provided or submitted by End User. Customer and End User, each on their own behalf, will use reasonable best efforts to prevent unauthorized access to or use of the ClickBid Services and notify ClickBid 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 ClickBid Services to any third parties. Customer will not offer the ClickBid Services on a standalone basis. Customer will ensure that the ClickBid 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 the ClickBid Acceptable Use Policy, which is incorporated by reference into this Agreement. Specifically and without limitation, Customer is responsible to ensure that ClickBid is entitled to use the Customer Data as needed to provide the ClickBid Services and will not use the ClickBid Services in any manner that violates any privacy and 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.
End User will not transfer, resell, lease, license or otherwise make available the ClickBid Services to any third parties. End User will ensure that the ClickBid 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 the ClickBid Acceptable Use Policy, which is hereby incorporated by reference into this Agreement. Specifically and without limitation, End User will ensure that ClickBid is entitled to use the Data as needed to provide the ClickBid Services and will not use the ClickBid 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 End User hereunder, End User 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 and End User each acknowledges that the features and functions of the ClickBid Services may change over time. It is Customer’s and/or End-User’s responsibility to ensure that the then-current functionalities offered by the ClickBid Services are compatible with Customer’s and End User’s intended uses of such services.
2.6 Readers. Customer may purchase USB credit card readers (“Reader(s)”) from ClickBid. All Readers are to be used with ClickBid’s event butler web page. Customer will make any requests for Readers at least fourteen (14) days prior to the Customer Event Date. Customer acknowledges that ClickBid may not provide Readers if they are requested less than fourteen (14) days prior to the Customer Event Date. If Customer requests Readers from ClickBid less than fourteen (14) days before the Customer Event Date and ClickBid provides Readers, ClickBid may increase the shipping charge to ensure timely delivery to the Customer. ClickBid will use commercially reasonable efforts to send all Readers requested in a single shipment. If Readers are shipped separately, ClickBid may charge shipping fees for each separate shipment.
3. Fees and Payments
3.1 Fees. Customer agrees to pay 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. [Unless stated otherwise, all fees are in US dollars.]
3.2 Taxes. Unless otherwise stated, all applicable federal, state, provincial 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 ClickBid, will be payable by Customer. Customer will not withhold any taxes from any amounts due to ClickBid.
3.3 Invoicing. Subject to certain credit requirements as determined by ClickBid, ClickBid may agree to allow Customer to pay amounts due hereunder in arrears. In such event, Customer will make all of the payments due hereunder by 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 ClickBid may assess and Customer will pay interest on all amounts due at the lesser rate 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 ClickBid 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 ClickBid 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, ClickBid will be entitled to suspend the ClickBid Services associated with Customer’s account without prior notice to Customer. ClickBid 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 ClickBid Services pursuant to this Section 3.
3.6 Collection. Notwithstanding the terms of Section 9.3, and to the extent allowed under applicable law, ClickBid may pursue any amounts payable by Customer to ClickBid 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 ClickBid any and all costs of collection of any Quoted Fees or any other amounts payable by Customer, including without limitation lawyer’s fees.
3.7 Deposit. Customer acknowledges that if, for whatever reason, ClickBid believes, in its entire discretion, that there is any risk that it will be unable to collect any amounts due from Customer, ClickBid may require Customer to provide security, in the form of a cash or credit card deposit, to secure Customer’s payment obligations before ClickBid pre-pays for travel or ships any Equipment to Customer.
3.8 End User Payments. End User agrees to immediately pay all amounts for which End User is a successful bidder in any Customer Event or any other amounts End User agrees to on the ClickBid Services.
4. Ownership and Confidentiality
4.1 Ownership Rights. ClickBid exclusively owns and reserves all rights, title and interest in and to the ClickBid Services and ClickBid’s Confidential Information (as defined below in Section 4.3 (Confidentiality)). Customer exclusively owns and reserves all right, title and interest in and to the Customer Data and Customer’s Confidential Information (as defined below in Section 4.3 (Confidentiality)).
4.2 Use of Licensor Marks. Subject to the terms of this Agreement, each Customer and ClickBid, as the case may be, (the “Licensor”) grants to the other (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. Any such use of the Licensor Marks 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 will not present itself as an affiliate or other legal agent of Licensor. The license described in this Section 4.2 and granted by ClickBid shall be valid only so long as Customer has paid in full for any ClickBid Services and is not in default of this Agreement or any other agreement with or obligation to ClickBid and will terminate upon the end of any Customer Event.
(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 ClickBid 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 4.3. 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. Customer and End User 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, ClickBid 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.
5. Data Ownership and Use
Each of Customer and End User grants ClickBid the right to use, host, store, modify, adapt, reproduce, distribute, publish and display Data to the extent necessary for ClickBid to perform its obligations under this Agreement. Customer and End User each acknowledges that this Data will be stored and used on computers and networks located in the United States of America (USA). If a Customer Event takes place outside of the USA, Customer agrees to comply with any federal, provincial, state or local law applicable in the jurisdiction where Customer Event will take place, including with respect to privacy and data protection and, as applicable, requirements pertaining to the transfer of personal information to the USA.
End Users grant ClickBid 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.
CLICKBID 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. CLICKBID’S SERVICES 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.
7. Exclusion of Damages; Limitation Of Liability
CLICKBID WILL NOT BE LIABLE TO YOU, UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER OR TO YOU 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 CLICKBID HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
CLICKBID WILL NOT BE LIABLE TO END USER, UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES.
CLICKBID 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.
8. Customer Right to Use the ClickBid Services
8.1 Customer’s right to utilize the ClickBid Services begins when Customer has paid in full (or made payment arrangements approved and accepted by ClickBid) for any ClickBid Services and continues so long as Customer is not in default of this Agreement or any other agreement with or obligation to ClickBid.
9. Indemnification and Disputes
Indemnification by Customer. Customer will defend, indemnify and hold ClickBid 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 any ClickBid Services or Customer’s acts or omissions in connection with Customer 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). Customer will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. ClickBid reserves the right, at Customer’s expense, to retain separate counsel for ClickBid 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 lawyers’ fees and any settlement amounts or damages awarded against ClickBid in connection with any Claim. Customer will also be liable to ClickBid for any costs and lawyers’ fees ClickBid incurs to successfully establish or enforce its right to indemnification under this Section 9.
Indemnification by End User. End User will defend, indemnify and hold ClickBid harmless against any actual or threatened claim, loss, liability, damage, expense, cost, lawyer’s fees, proceeding, third-party discovery demand, governmental investigation or enforcement action (“Claim”) arising out of or relating to End User’s activities under this Agreement, use of ClickBid Services, or End User’s acts or omissions in connection with the provision of any Data, including without limitation, any intellectual property claims relating to any Data provided by the End User and any violation by End User of the terms of Section 2.4 (Restrictions). End User will also be liable to ClickBid for any reasonable costs and attorneys’ fees ClickBid incurs to successfully establish or enforce its right to indemnification under this Section 9.
9.2 Governing Law. This Agreement is governed by the substantive laws of the State of Michigan, exclusive of its rules governing choice of law and conflict of laws, except as provided in Section 9.3. This Agreement is not 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 or monies payable to ClickBid by End User, and to the extent allowed under applicable law, any dispute arising under this Agreement will be determined by binding arbitration held solely 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 9.3 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, ClickBid may seek injunctive relief 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.
TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, 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 Jurisdiction. To the extent allowed under applicable law, Customer, End User and ClickBid submit exclusively to the personal jurisdiction of the federal and state courts located in Michigan with respect to any claims or disputes between any of them and ClickBid, that are not otherwise subject to Section 9.3 and arbitration, and each party waives any defense to such jurisdiction including those based on venue or forum non conveniens.
10.1 Assignment. Customer and/or End User will not assign or otherwise transfer any of its rights under this Agreement or of any purchased services from ClickBid, in whole or in part, without ClickBid’s prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void.
10.2 No Waiver. Any waiver of any breach or default by ClickBid will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by ClickBid 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. Neither Customer nor End User has the authority to commit ClickBid 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 ClickBid any and all costs of collection of any Quoted Fees or other amounts payable to ClickBid, 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. ClickBid may use Customer’s current address, as provided by Customer in connection with billing and payment activities. ClickBid’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 ClickBid, 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. ClickBid may terminate the Customer purchased ClickBid Services on written notice to Customer if the Force Majeure Event continues more than 30 days.
10.8 Government Terms. ClickBid provides the ClickBid 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 ClickBid 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 ClickBid Services were developed fully at private expense.
Availability. Like all web services, ClickBid’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 ClickBid will make reasonable effort to minimize such downtime, ClickBid does not guarantee 100% availability of its products and services.