THESE TERMS OF USE (THESE “TERMS OF USE”) DEFINE THE RELATIONSHIP BETWEEN FAIR WARNING, LLC (“FAIR WARNING”), AUCTION MOBILITY LLC ( “AUCTION MOBILITY”) AND YOU, THE PERSON ACCESSING THE WEBSITE AT WWW.FAIR-WARNING.COM (THE “SITE”) AND/OR DOWNLOADING OR USING THE AUCTION PLATFORM MOBILE APPLICATION (THE “APPLICATION”) AND REGISTERING FOR THE SERVICES (“YOU” OR “YOUR”). BY USING THIS SITE AND APPLICATION, YOU ALSO AGREE TO BE BOUND BY FAIR WARNING’S CONDITIONS OF SALE) (THE “CONDITIONS OF SALE”) AND FAIR WARNING’S RULES OF THE ROAD WHICH ARE BOTH INCORPORATED BY REFERENCE. YOU ACKNOWLEDGE THAT AUCTION MOBILITY IS NOT A PARTY TO YOUR PURCHASE OF ITEMS FROM FAIR WARNING, AND THAT THE PURCHASE AND SALE OF ITEMS IS A TRANSACTION CONDUCTED EXCLUSIVELY BETWEEN YOU, THE CONSIGNOR AND FAIR WARNING, AS THE CONSIGNOR’S AGENT, AND NOT BETWEEN YOU AND AUCTION MOBILITY. THE PURCHASE AND SALES OF ITEMS IS GOVERNED SOLELY BY THE CONDITIONS OF SALE.YOU MAY USE THE SERVICES (DEFINED BELOW) ONLY IF YOU CAN FORM A BINDING CONTRACT WITH EACH OF AUCTION MOBILITY, the consignor AND FAIR WARNING AND ARE NOT A PERSON BARRED FROM RECEIVING THE SERVICES UNDER THE LAWS OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. IF YOU CANNOT CONFIRM THE FOREGOING, THEN YOU MUST NOT ACCEPT THESE TERMS OF USE AND MAY NOT DOWNLOAD OR USE THE SITE OR APPLICATION OR USE THE SERVICES. YOU MAY USE THE SERVICES ONLY IN COMPLIANCE WITH THESE TERMS OF USE, THE CONDITIONS OF SALE AND ALL APPLICABLE LAWS AND REGULATIONS.
Binding Arbitration
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THESE TERMS OF USE SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “BINDING BILATERAL ARBITRATION AND APPLICABLE LAW” BELOW. PLEASE READ THE SECTION TITLED “BINDING BILATERAL ARBITRATION AND APPLICABLE LAW” CAREFULLY.
Services
Either Fair Warning or Auction Mobility may amend these Terms of Use at any time by posting the revised Terms of Use on the Site and Application and may terminate these Terms of Use at any time by suspending or terminating access to the Services and/or notifying you. You can see when these Terms of Use were last revised by referring to the “Updated” legend above. The Site and Application allow you to place bids, monitor live auctions and perform other related activities in connection with Fair Warning (collectively, the “Services”). Your continued use of the Services after revised Terms of Use have been posted signifies your acceptance of such revised Terms of Use.
Agreement with Respect to Terms of Use
These Terms of Use constitute a legally binding agreement between Auction Mobility and you as well as between Fair Warning and you. You acknowledge that you have read these Terms of Use, and accept, understand and will be bound by such terms and conditions. You further acknowledge that these Terms of Use and Conditions of Sale (with respect to Fair Warning), together with the Privacy Policy (defined below) and terms governing any individual section of the Site or Application, represent the complete and exclusive agreement between the parties, and supersede any proposal or prior agreement oral or written, and any other communications between the parties relating to the Site, Application and Services.
Registration and Privacy
To use the Site or Application, you are required to provide certain information, including your name, email address, verification information, username and password (collectively, your “Account Information”). If you provide any information that is untrue, inaccurate, not current or incomplete, or if you impersonate someone else, or either Fair Warning or Auction Mobility have reasonable grounds to suspect so, your account may be terminated and you will not be allowed to use the Site and Application. Both Fair Warning and Auction Mobility are committed to your privacy, and the Auction Mobility privacy policy and the Fair Warning privacy policy (together, the “Privacy Policy”) explains how your Account Information and any other information you provide is used, stored and protected. You can read the Privacy Policy here: https://www.fair-warning.com/#/privacy and https://www.auctionmobility.com/platform-privacy-policy/. You are solely responsible for maintaining the confidentiality of your user name and password. You must notify Fair Warning immediately of any unauthorized use of your Account Information. Neither Auction Mobility nor Fair Warning will be responsible for any losses arising out of the unauthorized use of your account. You agree to indemnify and hold Fair Warning and Auction Mobility harmless from and against any losses, damages, claims or liabilities relating to the improper, unauthorized or illegal uses of your account.If you are a user accessing Services from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the Services, which is governed by U.S. law, you are transferring your personal information to the United States and you consent to such transfer.
Use and Restrictions
- Content
All text, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork and computer code, including but not limited to design, structure, “look and feel” and arrangement of the content available on the Site and Application (collectively, “Content”) is owned, controlled or licensed by or to either Fair Warning or Auction Mobility, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.The Application and Services are licensed, not sold. The Content, Site and Application, and all related intellectual property, are solely and exclusively owned by either Fair Warning or Auction Mobility and/or their licensors and suppliers. Fair Warning and Auction Mobility grant you a personal, limited, nontransferable license to download, display and use the Application and use the Services available through the Site strictly in accordance with these Terms of Use and Fair Warning’s Rules of the Road. This license does not allow you to use the Application on any device that you do not own or control. You may not copy, reproduce, republish, post, publicly display, translate or distribute the Application or Content in any way, except as specifically authorized by the features and functions of the Services (such as posting to or sharing images with certain social media sites). Neither Fair Warning nor Auction Mobility grant you a license by implication or estoppel, and both Fair Warning and Auction Mobility reserve all rights not expressly granted in these Terms of Use. The license granted to you pursuant to these Terms of Use is solely for your personal use (but not for resale or redistribution) as a user of the Services and may not be used for any other purposes. You shall not reverse engineer, de-compile, or otherwise translate, in any way, the Content and user interface(s) made available from, on or through the Application or Site. You have no right or claim of right to the Content or any unique ideas found on the Application or Site.
- Links to Other Sites
The Application and Site contain links to other independent third-party web sites (the “Linked Sites”). These Linked Sites are provided solely as a convenience to you and based upon your Account Information or the Content you elect to view. Such Linked Sites are not under either Fair Warning’s or Auction Mobility’s control, and neither are responsible for nor endorse the content of such Linked Sites, including any products, information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites. Some of the content served will be from affiliated merchant sites, and sales through these affiliated sites may generate a commission payable to either Auction Mobility or Fair Warning. Neither Fair Warning nor Auction Mobility accept any responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of third party web sites, including, without limitation, Linked Sites and websites linking to the Application and/or Site. You should review applicable terms and policies, including privacy and data gathering practices, of third party web sites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Warranties, Disclaimers and Limitations of Liability
- Your Warranties
You represent and warrant that (a) all information, including, without limitation, Account Information, that you provide is accurate and truthful, (b) you have the authority to share Account Information with Fair Warning and Auction Mobility and to grant the right to use Account Information as provided in these Terms of Use and Privacy Policy and (c) your use of the Services pursuant to these Terms of Use does not violate any applicable law or other contract or obligation to which you are a party or are otherwise bound.
- Disclaimer of Warranties
ALTHOUGH BOTH AUCTION MOBILITY AND FAIR WARNING MAKE EFFORTS TO PROVIDE AN ACCURATE APPLICATION AND SITE, THE APPLICATION, SITE AND ALL PARTS THEREOF ARE PROVIDED “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AUCTION MOBILITY AND FAIR WARNING AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WITH RESPECT TO THE APPLICATION, THE SITE, THE SERVICES, AND ANY INFORMATION OR DATA PROVIDED TO YOU, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (4) THAT ACCESS TO OR USE OF THE APPLICATION, SITE, CONTENT OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. ANY RELIANCE UPON THE APPLICATION, SITE AND SERVICES IS AT YOUR OWN RISK.IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND UNINSTALL THE APPLICATION.Please note that Auction Mobility does not have control over, and cannot guarantee the existence, quality, safety or legality of any item offered by the Fair Warning, the truth or accuracy of Fair Warning’s representations, or the ability of Fair Warning to sell any item. Please review the Conditions of Sale with respect to terms regarding the items offered by Fair Warning on the Site or through the Application.Your reliance upon the information available on the Application and/or Site or through use of the Services and your interactions with third parties identified through the Services is SOLELY AT YOUR OWN RISK. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet, mobile devices and electronic communications and mail delivery systems. Neither Fair Warning nor Auction Mobility are responsible for any delays, delivery failures or other damages resulting from such problems. Both Fair Warning and Auction Mobility reserve the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Application, Site and Services, or any portion thereof; and (2) to interrupt the operation of the Application, the Site and/or provision of Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes, or to comply with laws.Some jurisdictions do not allow the above disclaimer of warranties, so such disclaimers might not apply to you.
Limitations of Liability
IN NO EVENT SHALL EITHER FAIR WARNING OR AUCTION MOBILITY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, APPLICATION OR THEIR RESPECTIVE CONTENT, WITH THE DELAY OR INABILITY TO ACCESS OR USE THE SITE, THE APPLICATION OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY CONTENT, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE OR OBTAINED THROUGH THE SITE, THE APPLICATION OR THEIR RESPECTIVE CONTENT, OR OTHERWISE ARISING OUT OF THE USE OR ACCESS OF THE SITE, USE OF THE APPLICATION OR USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FAIR WARNING OR AUCTION MOBILITY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE OR THE APPLICATION, AND ALL OTHER USE OF THE SITE OR APPLICATION, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM. THE AGGREGATE AND CUMULATIVE LIABILITY OF EACH OF FAIR WARNING AND AUCTION MOBILITY, INDIVIDUALLY, TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF USE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, THE APPLICATION OR THEIR RESPECTIVE CONTENT, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND UNINSTALL THE APPLICATION.Some jurisdictions do not allow the above limitation of liability and/or exclusion of damages, so such limitations and exclusions might not apply to you.
Release
If you have a dispute with Fair Warning, you release Auction Mobility (and its affiliates and subsidiaries, and its and their respective officers, directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.Likewise, if you have a dispute with Auction Mobility, you release Fair Warning (and its affiliates and subsidiaries, and its and their respective officers, directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Indemnification
You will indemnify and hold Auction Mobility and Fair Warning and their respective affiliates harmless with respect to any suits or claims (including paying reasonable attorneys’ fees) arising out of or relating to (i) your breach of these Terms of Use, including, but not limited to, any infringement by you of the copyright or intellectual property rights of any third party; (ii) your fraudulent or malicious use of the Site, the Application and/or Services or your misuse or abuse of the Site, Application and/or Services; (iii) with respect to Auction Mobility, your business dealings with Fair Warning; (iv) your violation of applicable laws, rules or regulations in connection with your use of the Site, Application or Services; and (v) information and content that you make available through the Services. You will also defend Auction Mobility or Fair Warning, as applicable from such suits or claims if directed by either Auction Mobility or Fair Warning, as applicable.
Consent to Electronic Notice
By using the Site, the Application or the Services, you agree that Auction Mobility and Fair Warning may communicate with you electronically regarding administrative, security and other issues relating to your use of the Site, Application and Services. You agree that any notices, agreements, disclosures or other communications that Auction Mobility or Fair Warning send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights.
Interpretation
These Terms of Use are intended to be interpreted in the English language, and any translation is made for the convenience of the parties only. In the event of a conflict between the English and the translated versions, the English version will control and supersede.You agree that no joint venture, partnership, employment, or agency relationship exists between you, Fair Warning or Auction Mobility as a result of these Terms of Use or accessing or using the Site, the Application or their respective contents. Both Auction Mobility’s and Fair Warning’s performance under these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use is in derogation of either Auction Mobility’s or Fair Warning’s right to comply with governmental, court and law enforcement requests or requirements relating to your access or use of the Site and/or Application or information provided to or gathered with respect to such use.If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations contained herein, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms of Use shall continue in effect. A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Except as otherwise specified in these Terms of Use, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to Auction Mobility must be sent in writing to the following address: Auction Mobility, attn. President, 464 Common Street, Suite 326, Belmont MA 02478, United States, notices to Fair Warning must be sent in writing to the following address: Fair Warning, LLC, 115 West 23rd Street, 3rd Floor, New York, NY 10010 and notices to you will be sent to the email address you provide, which addresses may be updated from time to time upon written notice to the other party. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. Both Auction Mobility and Fair Warning may assign their rights and privileges under these Terms of Use (including your user registration), without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, or to an affiliate, or in connection with a change in control. Subject to the foregoing, these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Term and Termination
The term of these Terms of Use will continue for as long as you access and use the Application, Site and/or Services. Sections titled “Content,” “Warranties, Disclaimers and Limitations of Liability,” “Binding Bilateral Arbitration and Applicable Law,” “Interpretation,” and “Indemnification,” and this Section shall survive any termination or expiration of these Terms of Use.Questions? Contact Auction Mobility at legal@auctionmobility.com or Fair Warning at hello@fair-warning.com.
Binding Bilateral Arbitration and Applicable Law (Continued from Section titled “Binding Arbitration” above)
PLEASE READ THIS SECTION CAREFULLY. You, Fair Warning and Auction Mobility agree that any claim or dispute at law or equity that has arisen or may arise between you and Fair Warning and/or Auction Mobility relating in any way to or arising out of this or previous versions of the Terms of Use, your use of or access to the Site, Application and Services, or any products or services sold or purchased through the Services in accordance with the Conditions of Sale, will be resolved in accordance with the provisions set forth in this Section.Governing Law and Jurisdiction. These Terms of Use shall be governed by and construed and enforced in accordance with the laws of the State of New York.Resolving Disputes. Fair Warning and Auction Mobility (each the “Disputing Party”) hope never to have any disputes with you but, if it does occur, the Disputing Party will first try to resolve it amicably if the Disputing Party (in its sole discretion) believes that it reasonably can be resolved amicably. If the dispute cannot be resolved, this section contains the important terms to which you agree by using the Site or Application.Mediation and Arbitration. You and the Disputing Party agree that any disputes, claims or controversies arising out of or relating to this Agreement between yourself and either or both of the Disputing Parties shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration in New York City pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on any award may be entered in any court having jurisdiction, both parties waive any objection which they may have now or hereafter to the laying of venue in New York City or the exclusive jurisdiction of JAMS over the Parties.Allocation of Dispute Costs. The prevailing party—you or the Disputing Party as determined by the Arbitrator—will be entitled to recover the costs of the dispute, including reasonable attorneys’ fees and other costs, plus interest at the rate authorized by New York law.
