Welcome to Kodewin! BidGig LLC, an Ohio limited liability company (“BidGig”), makes this website and all content, elements, and materials incorporated into, uploaded to, displayed on, downloaded from, or distributed by or via this website, including, but not limited to, text, software, scripts, user interfaces and features, designs, graphics, images, photographs, illustrations, sounds, music, videos, and similar materials and elements (“Content”), the trademarks, service marks, trade names, and logos contained therein (“Marks”), and all services licensed, purchased, provided, or otherwise made available by BidGig and its strategic partners through this website (“Services”) available for your use subject to these Terms. (The Content, Marks, and Services are collectively referred to herein as the “Platform”). By accessing or using the Platform in any way you accept and agree to be and are bound by these Terms as a legal contract between you and BidGig. BidGig reserves the right to modify these Terms and its other rules, guidelines, and policies from time to time in its sole discretion, and all such modified Terms, rules, guidelines, and policies will be effective immediately upon being posted on the Platform and are hereby incorporated by reference. Your continued use of the Platform after such modified Terms, rules, guidelines, and policies have been posted constitutes your acceptance of such changes, and you agree your use of the Platform will be subject to the then-current version of these Terms and the other rules, guidelines, and policies of Kodewin as posted on the Platform. BidGig recommends you periodically review the most current Terms and the other rules, guidelines, and policies of Kodewin as they are binding on you and govern your use of the Platform. (The date of the most recent revision to these Terms appears at the end of this agreement). If you are not in agreement with any of these Terms or the other rules, guidelines, or policies of Kodewin, you are not authorized to and may not access or otherwise use the Platform. employs certain encryption technologies and follows other generally accepted standards to protect User Information and to provide suitable security, BidGig cannot and does not guarantee or warrant that any information transmitted via the Internet is secure, or that such transmissions are or will be free from error, delay, interruption, or interception. User Accounts, User IDs, and passwords are non-transferrable, and any such attempted transfer will be void and of no legal effect.
1. KODEWIN USER ACCOUNTS
3. SELLING GOODS THROUGH KODEWIN
Any Kodewin user with a User Account in good standing may create a listing to sell particular Goods. Each time you list such Goods for sale on the Platform, you represent and warrant to BidGig and to its community of users, as applicable: (a) that you will pay Kodewin the fees associated with such listing (for a description of such fees, follow the appropriate link on the Home Page); (b) you will remain fully responsible for the content you post, upload, list, transmit, communicate, or otherwise distribute to Kodewin, including, but not limited to, text, communications, files, images, graphics, illustrations, photographs, sounds, music, video, and similar materials and elements, along with the trademarks, service marks, trade names, and logos contained therein (“User Content”) and for the quality of the Goods listed; (c) that your listings (including all User Content) are accurate and not misleading and are in strict compliance with these Terms and the other rules, guidelines, and policies of Kodewin; and (d) that your listings (including User Content) and your use of the Platform will comply with all applicable local, state, and federal laws, ordinances, and regulations. By posting, uploading, listing, transmitting, communicating, or otherwise distributing User Content to Kodewin you grant BidGig, its successors, assigns, and licensees, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, assignable license to link to, reproduce, distribute, adapt, create derivative works of, publicly perform, publicly display, digitally perform, or otherwise use such User Content in any form, manner, or media, whether now known or hereafter created or devised, without any compensation or obligation to you, to enable inclusion and use of your User Content in the manner contemplated by these Terms and otherwise in BidGig’s discretion. Notwithstanding the foregoing sentence, you will retain ownership of any copyrights, trademarks, and service marks in any User Content you post, upload, list, transmit, communicate, or otherwise distribute to Kodewin. BidGig reserves the right to not post, publish, or display on the Platform any particular User Content, and to remove or edit any particular User Content, at any time in BidGig’s sole discretion without notice or liability to you. It is your obligation to determine and satisfy copyright or other use restrictions with respect to User Content contained in your listings, posts, and communications, and you at all times will remain solely and entirely responsible for determining whether the use of any such User Content requires the consent or license from any other person or entity, and to secure such consents and to pay any associated licensing or other fees. BidGig encourages you to seek the advice of an attorney if you have questions concerning the legality of any User Content you wish to post, upload, list, transmit, communicate, or otherwise distribute on or via the Platform
4. BUYING GOODS THROUGH KODEWIN
Any Kodewin user in good standing may buy Goods through the Kodewin Platform. Buyers are responsible for reading and understanding the applicable listing, including all terms and conditions of the sale (e.g., description of the item, item price, shipping, tax, etc.) before making purchases. BidGig encourages its users to conduct any appropriate investigation and due diligence with respect to applicable listings prior to purchasing Goods through the Platform. By following the instructions included with any particular listing, you are committing to purchase such item or service from the seller, and by doing so you have entered into a legally-binding contract with the seller to consummate the purchase in accordance with the terms of the particular listing. Purchases may not be canceled by you, except as permitted under applicable law. BidGig does not control, is not responsible for, and makes no representations or warranties with respect to any User Content included in a seller’s listing. You remain solely and entirely responsible for your use of and reliance on any User Content included in a seller listing. You agree to pay the full purchase price and any associated costs and charges incurred by you in connection with any purchases through the Platform.
5. SERVICE FEES AND TAXES
There is no charge to users for creating a listing or purchasing Goods on the Platform; however, Kodewin does charge various fees for certain of its Services, including fees charged to sellers for Goods sold via the Platform. A full description of these fees can be found by following the appropriate link on the Home Page. BidGig reserves the right to change its fees at any time, and changes are immediately effective upon posting on the Platform. Except as required by law, all fees are non-refundable. BidGig encourages users to periodically review such fees and associated policies to ensure users have the most up-to-date information when making decisions regarding how and to what extent to use the Platform. All fees are stated in United States Dollars unless otherwise provided. You are responsible for the timely payment of all fees and for providing BidGig with a valid payment method for such payment. At this time, Kodewin accepts payment via Visa, MasterCard, and American Express. If for any reason BidGig is unable to collect fees owed and you fail to timely make other acceptable arrangements with Kodewin for the payment of fees owed, BidGig may, in addition to any other remedies available at law or in equity, collect the amounts owed using any available collection method, including, but not limited to, employing collection agencies and attorneys. BidGig reserves the right to assess late fees and suspend or otherwise restrict your access to and use of the Platform until payment is received in full. BidGig and any associated collection agencies may also report late or missed payments to the various credit bureaus (i.e., Experian, TransUnion, and EquiFax). BidGig is not responsible for determining if the payment or collection of sales tax or use tax or any other tax is applicable to any transaction entered into between you and other users of the Platform. All such determinations, including applicability, amount of any tax, reporting information, etc., remain the sole and entire responsibility of the parties involved.
6. INTELLECTUAL PROPERTY
All rights, title, and interest in and to the Content and Marks are owned by or licensed to BidGig, subject to copyright law, trademark law, unfair competition law, trade secret law, patent law, and other intellectual property and applicable laws. Content may not be copied, downloaded, modified, reproduced, stored, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited by you for any purpose other than as explicitly set forth in these Terms and the other rules, guidelines, and policies of Kodewin without the prior written consent of BidGig or the applicable owner or claimant, as the case may be. Neither the name “Kodewin” nor any of BidGig’s other Marks may be used in any way, including, but not limited to, in any advertising, hyperlink, publicity, or promotional materials of any kind, whether relating to the Platform or otherwise, without BidGig’s prior written consent, and nothing contained in the Platform should be construed as granting you by implication, estoppel, or otherwise, any license or right to use any Marks or Content without the prior written approval of BidGig or the applicable owner or claimant, as the case may be. Notwithstanding the foregoing sentence, a third-party website that desires to link to the Platform and complies with the requirements of Section 8 (Links from Third-Party Websites) may use the name “Kodewin” in or as part of that hyperlink. Any violation or breach of the foregoing restrictions by you is strictly prohibited and will constitute infringement of the intellectual property rights of BidGig or others and may subject you to civil and criminal penalties, including, but not limited to, monetary damages for copyright infringement. All rights in and to the Content and Marks not expressly granted by these Terms are reserved by BidGig and its licensors. Notwithstanding anything to the contrary contained in this Section 6, you may view, copy, or print pages from the Platform solely in furtherance of transactions or potential transactions with other Kodewin users.
7. LINKS TO THIRD-PARTY WEBSITES AND CONTENT
8. LINKS FROM THIRD-PARTY WEBSITES
Third parties may link to the Kodewin Platform provided they at all times (a) do not replicate or misappropriate any Content from the Platform or otherwise infringe any intellectual property rights of BidGig, its strategic partners, or users; (b) do not create a frame or any other browser or border environment around the Platform; (c) do not link to any Content that is only made available to users with a User Account and User ID; (d) do not imply that BidGig endorses such third party, its content, materials, goods, or services; (e) do not misrepresent such third party’s relationship with BidGig; and (f) do not display any content on such third-party’s website that could be construed as distasteful, offensive, or controversial.
9. RESTRICTIONS ON YOUR USE OF THE KODEWIN PLATFORM
You agree to not use the Kodewin Platform for any purpose that is unlawful or prohibited by these Terms or the other
rules, guidelines, or policies of BidGig, and, specifically, you agree as follows:
(a) to not use or attempt to use the Platform if you are not able for any reason to form legally-binding contracts (e.g., if you are under the age of 18), if your Kodewin privileges are suspended, terminated, or otherwise restricted, or if you have not agreed to be bound by these Terms and the other rules, guidelines, and policies of Kodewin;
(b) to make all payments for Goods purchased by you, and to deliver all Goods sold by you (except in cases in which the buyer materially fails to abide by the posted terms of the sale);
(c) to not take any action that (i) could damage, disable, overburden, or impair the Platform; (ii) violates or attempts to violate the security of the Platform, including by probing, scanning, or otherwise testing the vulnerability of applicable systems, networks, and authentication measures; (iii) circumvents any technological measure implemented by BidGig to restrict the manner in which User Content can be posted, uploaded, listed, transmitted, communicated, or otherwise distributed on or via the Platform; (iv) circumvents the manner in which User Content may be transmitted to other Kodewin users, including through the use of multiple email addresses, multiple IP addresses, and multiple or fraudulent User Accounts; (v) circumvents or manipulates (or attempts to circumvent or manipulate) Kodewin’s fee structure, billing process, or fees owed; (vi) inhibits, disrupts, or otherwise interferes with another’s beneficial use and enjoyment of the Platform or any parts thereof, including by means of hacking or defacing any portion of the Platform or by accessing and using another’s User Account without permission; (vii) modifies or removes any copyright, proprietary, or identification markings accompanying any Content posted, uploaded, listed, or displayed on or via the Platform; (viii) infringes the copyrights, trademarks, service marks, patents, or other proprietary intellectual property rights of BidGig, its successors, assigns, strategic partners, and users; (ix) solicits or mass-markets BidGig, its strategic partners, and users via email, direct mail, telephone, or otherwise for commercial or any other purposes;
(d) to not post, upload, list, email, communicate, transmit, or otherwise distribute to BidGig, its strategic partners, or any users of the Platform any User Content or other materials that (i) are false, inaccurate, misleading, or violate or infringe the intellectual property rights of any other party, including another’s copyrights, trademarks, service marks, or rights of publicity or privacy; (ii) contain viruses or other malicious software that may harm BidGig,
its strategic partners, or users, or inhibit, disrupt, or otherwise interfere with the normal operation of the Platform or any parts thereof; (iii) are unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, discriminatory, obscene, vulgar, pornographic, racially or ethnically offensive, or otherwise objectionable in BidGig’s sole discretion; (iv) contain proprietary trade secrets or other confidential information in violation of a confidentiality, employment, or non-disclosure agreement; (v) constitute unsolicited or unauthorized communications, advertising, promotional materials, junk mail, and spam; (vi) impersonate or misrepresent a user as any other person or entity;
(e) to not employ any robots, spiders, offline readers, crawlers, scrapers, framing, mirroring, other automatic devices or manual processes to access the Platform, gather or extract data, monitor or copy any Content from the Platform, or collect any personal information from Kodewin’s users, including, but not limited to, User Information, User IDs, and passwords, for solicitation or other purposes without their prior written consent; and (f) to not attempt (or assist another in any manner) to (i) violate, circumvent, reverse-engineer, decompile, disassemble, attempt to derive the source code or object code of, decrypt, modify, or create derivative works of the Platform; (ii) copy, reproduce, frame, download, transmit, broadcast, display, rent, lease, loan, sell, assign, distribute, license, sublicense, or otherwise exploit any Content from the Platform or modify, adapt, translate or create any derivate works from any Content for any purpose other than as expressly provided in these Terms.
10. MANAGING USER CONTENT AND COMMUNICATIONS
You represent and warrant that you own or have all necessary rights, licenses, consents, and permissions to use information and materials incorporated in your User Content. You remain solely and entirely responsible for your User Content and any other communications and materials posted, uploaded, listed, emailed, communicated, transmitted, or otherwise distributed by you, and the consequences resulting therefrom. BidGig has the right (but not the obligation) to monitor, screen, review, moderate, edit, block, remove, or delete any User Content posted, uploaded, listed, transmitted, communicated, or otherwise distributed by you on or via the Platform. BidGig may investigate any reported or apparent violation of these Terms, and may, at any time, take any action that BidGig in its sole discretion deems appropriate, including, but not limited to, restricting, suspending, or terminating your Kodewin privileges and your access to all or any parts of the Platform, without prior notice or liability to you in connection therewith.
11. DISCLAIMER OF WARRANTIES
BIDGIG MAKES EVERY ATTEMPT TO KEEP THE PLATFORM SAFE, SECURE, AND FUNCTIONING PROPERLY; HOWEVER, YOU ACKNOWLEDGE AND AGREE THE PLATFORM IS PROVIDED TO YOU AND ALL USERS “AS-IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. BIDGIG, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ADVERTISERS, AND THE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, AND CONTRACTORS OF EACH OF THE FOREGOING DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM AND ALL CONTENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES REGARDING: (a) MERCHANTABILITY; (b) FITNESS FOR A PARTICULAR PURPOSE; (c) THE QUALITY, TRUTH, ACCURACY, OR COMPLETENESS OF CONTENT POSTED, UPLOADED, LISTED, TRANSMITTED, COMMUNICATED, OR OTHERWISE DISTRIBUTED ON OR VIA THE PLATFORM, INCLUDING THE EXISTENCE, QUALITY, SAFETY, OR LEGALITY OF GOODS LISTED ON THE PLATFORM, THE ABILITY OF SELLERS TO SELL GOODS, THE ABILITY OF BUYERS TO PAY FOR PURCHASED GOODS, OR THAT A BUYER OR SELLER WILL ACTUALLY COMPLETE A TRANSACTION; (d) THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PLATFORM, INCLUDING ACCESS TO OR USE OF THE PLATFORM AT PARTICULAR TIMES OR LOCATIONS OF YOUR CHOOSING; (e) THE NON-INFRINGEMENT OF THIRDPARTY PROPRIETARY RIGHTS; (f) THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS; (g) THAT OPERATION OF THE PLATFORM (INCLUDING ALL COMMUNICATIONS AND TRANSACTIONS) WILL BE UNINTERRUPTED, ERROR-FREE, AND FREE OF VIRUSES, MALICIOUS SOFTWARE, OR OTHER HARMFUL COMPONENTS; (h) THAT ANY DEFECTS IN THE PLATFORM WILL BE CORRECTED; (i) THAT THE PLATFORM WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (j) THAT THE PLATFORM WILL CONTINUE TO BE MADE AVAILABLE; AND (h) THAT ANY PERSON USING THE PLATFORM WILL BE THE PERSON THAT HE OR SHE REPRESENTS HIMSELF OR HERSELF TO BE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH STATES OR JURISDICTIONS, SOME OF THE FOREGOING EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, BIDGIG DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY GOODS OR SERVICES OFFERED BY ANY THIRD PARTY THROUGH LISTINGS ON THE KODEWIN PLATFORM OR VIA ANY HYPERLINKED PLATFORM OR FEATURED IN ANY ADVERTISING WHICH APPEARS ON OR VIA THE KODEWIN PLATFORM. BIDGIG IS NOT A PARTY TO NOR WILL IN ANY WAY BE RESPONSIBLE FOR MONITORING OR PARTICIPATING IN ANY MANNER IN ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF GOODS. YOU ACKNOWLEDGE AND AGREE YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL REMAIN SOLELY AND ENTIRELY RESPONSIBLE FOR, AND RELEASE BIDGIG IN CONNECTION WITH, (a) ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICES; (b) CORRUPTION OR LOSS OF DATA; AND (c) ANY UNSATISFACTORY QUALITY, PERFORMANCE, OR ACCURACY OF THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THE PLATFORM IS CONTROLLED AND OFFERED BY BIDGIG FROM ITS FACILITIES LOCATED IN THE UNITED STATES. BIDGIG MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM IS APPROPRIATE OR AVAILABLE FOR USE IN ANY OTHER LOCATION OR JURISDICTION. ANY USER THAT ACCESSES OR USES THE PLATFORM FROM OTHER LOCATIONS OR JURISDICTIONS DOES SO AT THEIR SOLE RISK AND WILL REMAIN SOLELY AND ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LOCAL LAWS AND REGULATIONS. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY CONTAINED IN THESE TERMS, BIDGIG RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CHANGE, SUSPEND, CANCEL, LIMIT, INTERRUPT, DISCONTINUE, REMOVE, OR DISABLE ACCESS TO THE PLATFORM, INCLUDING ALL CONTENT AT ANY TIME WITHOUT NOTICE. IN NO EVENT WILL BIDGIG BE LIABLE TO YOU FOR SUCH ACTIONS AND ANY CLAIMED LOSSES, HARM, OR DAMAGES ARISING FROM OR RELATING TO ANY SUCH ACTIONS. IN ADDITION, BIDGIG MAY, IN ITS SOLE DISCRETION, IMPOSE LIMITS OR RESTRICTIONS ON THE USE OF OR ACCESS TO CERTAIN FEATURES OR PAGES OF THE PLATFORM AT ANY TIME AND WITHOUT NOTICE OR LIABILITY TO YOU.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BIDGIG, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SUPPLIERS, ADVERTISERS, AND THE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, AND CONTRACTORS OF EACH OF THE FOREGOING, BE LIABLE TO YOU, AND YOU AGREE NOT TO HOLD BIDGIG OR ANY OF THE FOREGOING PARTIES RESPONSIBLE FOR, ANY DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, GOODWILL OR REPUTATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHATSOEVER, RESULTING DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM YOUR ACCESS TO, USE OF, OR RELIANCE ON THE PLATFORM AND ANY CONTENT, WITH SUCH DAMAGES OR LOSSES INCLUDING, BUT NOT LIMITED TO: (a) PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER LOSS OR DAMAGE OF ANY KIND, WHATSOEVER; (b) ANY UNAUTHORIZED ACCESS TO OR USE OF KODEWIN’S SERVERS AND ANY PERSONAL, FINANCIAL, OR USER INFORMATION STORED THEREIN; (c) THE QUALITY, ACCURACY, OR COMPLETENESS OF CONTENT POSTED, UPLOADED, LISTED, TRANSMITTED, COMMUNICATED, OR OTHERWISE DISTRIBUTED ON OR VIA THE PLATFORM; (d) ANY REMOVAL, DELETION, LIMITATION, MODIFICATION, INTERRUPTION, SUSPENSION, DISCONTINUANCE, OR TERMINATION OF THE PLATFORM OR ANY PARTICULAR CONTENT; (e) ANY VIRUSES, TROJAN HORSES, OTHER MALICIOUS SOFTWARE OR HARMFUL COMPONENTS WHICH MAY BE TRANSMITTED TO, THROUGH, OR IN CONNECTION WITH THE PLATFORM; (f) THE CONTENT, ACTIONS, AND OMISSIONS OF OTHER USERS AND THIRD PARTIES; (g) ANY SUSPENSION, RESTRICTION, OR TERMINATION OF YOUR KODEWIN PRIVILEGES; (h) ANY REAL OR PERCEIVED NEED BY YOU TO MODIFY YOUR PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS AS A RESULT OF CHANGES TO THESE TERMS OR THE OTHER RULES, GUIDELINES, OR POLICIES OF KODEWIN; (i) ANY ACTION OR INACTION TO PREVENT, RESTRICT, REDRESS, OR REGULATE ANY USER CONTENT, OR TO IMPLEMENT OTHER ENFORCEMENT MEASURES AGAINST ANY PARTICULAR USER CONTENT, OR ANY USER’S CONDUCT OR VIOLATION OF THESE TERMS OR THE OTHER RULES, GUIDELINES, AND POLICIES OF KODEWIN; (j) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND (k) ANY ACTS OR OMISSIONS CAUSED BY CIRCUMSTANCES BEYOND BIDGIG’S REASONABLE CONTROL, WHETHER ANY SUCH DAMAGES OR LOSSES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIDGIG HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, BIDGIG’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL BIDGIG’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF THE TOTAL FEES PAID TO KODEWIN BY YOU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE MONTH DURING WHICH THE RELEVANT CAUSE OF ACTION ACCRUED, OR $100. YOU AND BIDGIG AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, YOU MUST FILE ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE PLATFORM WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, OTHERWISE SUCH CLAIM OR CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
By accessing and using the Platform, you agree, to the fullest extent permitted under applicable law, to defend, indemnify, release, and hold BidGig, its parent companies, subsidiaries, affiliates, suppliers, advertisers, and the officers, directors, owners, employees, agents, and contractors of each of the foregoing (the “Indemnitees”) harmless from and against any and all third-party claims, causes of action, demands, threats, lawsuits, and proceedings (collectively, “Claims”), and all liabilities, judgments, losses, damages, costs, and expenses of any kind whatsoever, including reasonable attorneys’ fees and court costs (collectively, “Losses”), suffered or incurred by any of the Indemnitees at any time to the extent arising out of or relating to your use of the Platform, including, but not limited to: (a) your violation of applicable law or your breach of these Terms or the other rules, guidelines, and policies of Kodewin; (b) your violation of any rights of other users or third parties, including, but not limited to, intellectual property rights; (c) any claim that a third party was damaged by any of your User Content, Goods purchased or sold by you, or your other activities relating in any way to the Platform; (d) any and all activity that occurs through or by use of your User Account (including all User Content posted, uploaded, listed, transmitted, communicated, or
otherwise distributed on or via the Platform); (e) any dispute between you and one or more other users of the Platform; and (f) any enumerated item set forth in Sections 11 and 12 of these Terms. This indemnification provision applies to all violations described or contemplated by these Terms. BidGig reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you hereunder, and in any such event, you
agree to fully cooperate with BidGig’s defense of such claim
14. INJUNCTIVE RELIEF
You acknowledge and agree any violation or breach of these Terms or the other rules, guidelines, or policies of Kodewin may cause BidGig immediate and irreparable harm and damages. Therefore, notwithstanding any other provision of these Terms or other applicable legal requirements, BidGig has the right to, and may in its sole discretion, immediately obtain preliminary injunctive relief and seek permanent injunctive relief regarding any violation or breach of these Terms or the other rules, guidelines, or policies of Kodewin. In addition to any and all other remedies available to BidGig at law or in equity, BidGig has the right to seek specific performance of any provision of these Terms, including, but not limited to, by preliminary or permanent injunction.
15. DISPUTES BETWEEN USERS OF THE KODEWIN PLATFORM
It is your sole and entire responsibility to conduct any investigation, inquiry, research, or due diligence you feel is necessary, appropriate, or prudent prior to interacting with or engaging in transactions with other users of the Platform in an effort to minimize claims and disputes. BidGig is not a party to, has no involvement in or control over, and makes no representations or warranties regarding any transactions or interactions between its users. BidGig does not moderate or settle claims or disputes between any of its users or between users and any other third parties. You acknowledge and agree BidGig will have no responsibility or liability with respect to any communications, interactions, transactions, disputes, or claims of any kind between users of the Platform, and you agree to indemnify, defend, release, and hold BidGig and any and all of the Indemnitees harmless from and against all claims, demands, and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or relating in any way to such disputes to the fullest extent permitted by applicable law. Users of the Platform are solely and entirely responsible for resolving any disputes or claims they may have against other users, and BidGig encourages such parties to resolve any such claims or disputes amongst themselves in an amicable manner. If such claims or disputes cannot be so resolved, the parties may wish to consult the advice of an attorney qualified to advise regarding any rights and remedies an aggrieved party may have under applicable law.
16. TERMINATION OF YOUR RIGHT TO USE THE KODEWIN PLATFORM
If BidGig believes in good faith that your use of the Platform (a) violates these Terms or the other rules, guidelines, and policies of Kodewin; (b) infringes the rights of any third party (including such party’s intellectual property rights); (c) gives rise to other legal liabilities; or (d) is harmful to BidGig, to users of the Platform, or to the business of BidGig’s strategic partners, including the Platform’s Internet service provider, then BidGig may, in its sole discretion at any time and without notice or liability to you, restrict, suspend, or terminate your access to the Platform or any parts thereof without prejudice to any other remedies available to BidGig at law or in equity. BidGig may also in its sole discretion cancel User Accounts that have been inactive for a significant period of time. You may terminate your User Account by written notice to: Kodewin c/o BidGig LLC, 1391 West Fifth Avenue, Suite 158, Columbus Ohio 43212; Attn: Account Terminations. Any termination of your use of the Platform, whether initiated by you or BidGig, will not affect any of your or BidGig’s rights and obligations under these Terms arising before the effective date of such termination.
17. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”)
BidGig is under no obligation to monitor User Content posted, uploaded, listed, transmitted, communicated, or otherwise distributed on or via the Platform for unlawful or unauthorized content. However, BidGig respects and seeks to preserve the copyright and proprietary interests of its community of users. Accordingly, if you believe any Content posted or otherwise displayed on the Platform infringes upon your copyrights, you may submit a notification in accordance with the DMCA by providing BidGig with the following information in writing (see 17 U.S.C 512(c)(3) for additional details): (a) your signature (either physical or electronic) or that of a person under penalty of perjury authorized to act on your behalf; (b) clear identification of the copyrighted work allegedly infringed; (c) clear identification of the content that is allegedly infringing and information reasonably sufficient to permit BidGig to locate the content; (d) information reasonably sufficient to permit BidGig to contact you (e.g., name, address, telephone number, and email address); (e) a statement by you that the use of the Content in the manner complained of is not authorized by you or permitted under applicable law; and (f) a statement by you that the information in the notification is accurate in all material respects. If you fail to comply with the foregoing requirements, your DMCA notice may not be valid. Any notices of claimed infringement should be sent to Kodewin’s Copyright Agent, ________________, at firstname.lastname@example.org or 1391 West Fifth Avenue, Suite 158, Columbus Ohio 43212. For the avoidance of doubt, only DMCA notices should be sent to the Copyright Agent. All other feedback, inquiries, or other communications should be directed to BidGig at email@example.com. If you believe that any of your User Content that may have been removed in response to a DMCA notice is not infringing, or that you possess the requisite authorization from the copyright owner or under applicable law to post, upload, list, transmit, communicate, distribute, or otherwise use such User Content, then you may send a counternotice including the following information to Kodewin’s Copyright Agent: (a) your signature (either physical or electronic); (b) clear identification of the User Content that has been removed and the location at which the User Content was displayed or appeared prior to its removal; (c) a statement by you that the User Content was removed as a result of mistake or a misidentification; (d) a statement that you consent to the jurisdiction of the federal courts located in Franklin County, Ohio, and a statement that you will accept service of process from the person who provided notification of the alleged infringement; and (e) your name, address, telephone number, and email address. All DMCA notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright/ for details). If a counter-notice is received by the Copyright Agent, BidGig may send a copy of the counter-notice to the original complaining party informing that person that BidGig may restore the removed Content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, the removed Content may be restored by BidGig in its sole discretion in 10 business days or more after the original complaining party’s receipt of the counter-notice. BIDGIG RECOMMENDS THAT YOU CONSULT WITH AN ATTORNEY PRIOR TO SUBMITTING A DMCA NOTICE OR COUNTER-NOTICE, AS THERE CAN BE PENALTIES FOR FALSE CLAIMS UNDER THE DMCA
In creating a User Account, you must designate a primary email address that will be used for receiving electronic communications. To the extent Kodewin maintains an online message center now or in the future, such exchange of communications will be considered an electronic communication and may be utilized by Kodewin for providing you notices pursuant to these Terms, as required by applicable law, or generally regarding your User Account with Kodewin. If BidGig needs to contact you for any reason in connection with your access to and use of the Platform, you consent to receive such notices by email. You acknowledge and agree that any such notices sent by BidGig to you via email satisfy any legal requirement that such notices be made in writing. You also agree that BidGig may respond to any communication you send to Kodewin with an electronic communication, regardless of whether your original communication with Kodewin was an electronic communication or not. Any electronic communication BidGig sends to you will be considered received within 2 calendar days of the date such communication is sent by computer servers utilized by BidGig to the email address you designate in your User Account. To the extent permissible under applicable law, any electronic communication you send to Kodewin will not be effective until BidGig has had a reasonable opportunity to act on the electronic communication. You should not rely on electronic communication if you need to communicate with BidGig immediately and, in no event, should your sole method of communication with BidGig regarding any emergency be sent by electronic communication. BidGig strongly suggests that you report all matters requiring immediate attention to BidGig by calling 1-800-___________________.
19. USER COMMENTS AND SUGGESTIONS
Kodewin encourages its community of users to work collaboratively to keep the Platform safe and working properly. Please report any problems, offensive content, or violations of these Terms or the other rules, guidelines, and policies of Kodewin to: firstname.lastname@example.org. User feedback is important to BidGig. If you have ideas, comments, or suggestions on how to improve the Kodewin Platform, please contact us at: email@example.com. Please note that by doing so, you grant BidGig permission to use and incorporate such ideas, comments, and suggestions into the Platform without further notice or compensation to you.
These Terms, along with any other legal notices published by BidGig on the Platform, constitute the entire agreement between you and BidGig relating to the subject matter hereof and supersede any prior agreements, written or oral, between you and BidGig relating to the subject matter hereof. You acknowledge and agree the Platform along with these Terms and the other rules, guidelines, and policies of Kodewin will be governed by and construed in accordance with federal law and, to the extent not preempted by federal law, the internal substantive laws of the State of Ohio, without regard to its conflict of laws principles. The Platform will be deemed a passive website that does not give rise to any personal jurisdiction over BidGig, either specific or general, in any state other than the State of Ohio. You agree that exclusive jurisdiction for any claim or dispute with BidGig arising from or relating to your access or use of the Platform will be decided in the federal and state courts located in Franklin County, Ohio (and any courts of appeal respectively therefrom). You agree to not plead that Franklin County, Ohio is an inconvenient forum in connection with any such claim or dispute. If any provision contained in these Terms is deemed invalid or unenforceable by a court of competent jurisdiction, the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of these Terms, all of which will remain in full force and effect. No waiver of any term or provision of these Terms will be deemed a further or continuing waiver of such term, provision, or any other term or provision, and BidGig’s failure to assert any right under these Terms will not constitute a waiver of such right. No agency, partnership, joint venture, employment, or franchise relationship is intended to be or is created by these Terms. You acknowledge and agree Sections 3, 6, 9, and 11-17 (inclusive) of these Terms will survive any termination of this agreement or your right to use the Kodewin Platform. You may not assign these Terms, in whole or in part, or delegate any of your responsibilities under these Terms to any third party. Any such attempted assignment or delegation will not be recognized by BidGig unless consented to by BidGig in writing, which consent may be granted or withheld by BidGig in its sole discretion. BidGig may, at any time and in its sole discretion, assign these Terms, in whole or in part, or delegate any of its rights and responsibilities under these Terms to any third party or entity.