AUCTIONS SERVICES USER AGREEMENT
THE FOLLOWING USER AGREEMENT OUTLINES THE TERMS ON WHICH THE LEGATO CORP. ALLOWS YOU TO ACCESS AND USE OUR SERVICES.
Welcome to the user agreement (the "Agreement" or "User Agreement") for The Legato Corp.
A. General. This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of www.thelegato.com (the "Site") and the general principles for the Web sites. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access our services.
C. Other sites. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and Web sites referred to in this document, as they may contain further terms and conditions that apply to you as The Legato Corp. user.
A. The Legato Corp. amendments. The Legato Corp. reserves the right to amend this Agreement at any time by posting the amended terms on the www.thelegato.com. It is the responsibility of the user to be informed of current amendments prior to participation in each new auction.
B. Effective date. This agreement is effective upon acceptance in registration for new registering users, and is otherwise effective on February 1, 2006, for all users.
3. MEMBERSHIP ELIGIBILITY
A. Availability. Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Individuals who are prohibited from using our services include, but are not limited to, children (persons under the age of 18), the mentally incompetent, or to temporarily or indefinitely suspended The Legato Corp. members.
B. Transferability. Your account (including feedback) and User ID with The Legato Corp may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement.
4. FEES AND SERVICES
A. General Fees. Joining and bidding on items at The Legato Corp. is free. We do charge fees for listing items for sale through our Site. Fees are quoted only in U.S. dollars. When you list an item you have an opportunity to review and accept the fees that you will be charged. Listing fees will be charged to you at the time that you submit your auction. Once an auction has been submitted there will be no refunds as your listing has been established. Our Fees and Credits Policy is available and is incorporated into this Agreement by reference.
B. Fee Changes. We may occasionally change our Fees and Credits Policy and the fees for our services. Our changes to the policy are effective after we provide you with prior notice of the changes by posting the changes on www.thelegato.com. However, we may choose to temporarily change our Fees and Credits Policy and the fees for our services for promotional events (for example, free listing days) and such changes are immediately effective when posted in the announcements on the Site. We may in our sole discretion change some or all of our services at any time.
C. New Services. In the event we introduce a new service, the fees for that service are effective immediately upon the launch of the service. You are responsible for paying all fees associated with using our service and all applicable taxes.
5. The Legato Corp. IS A VENUE
A. Status. The Legato Corp. is not an Auctioneer. We are commonly referred to as an online auction Web site, but it is important to understand that we are not a traditional "auctioneer." We are merely a venue that allows people to sell automobiles in an auction-style format most commonly referred to as "online auctions" or "auctions." Unlike traditional auction houses, we are not involved in the actual transaction between buyers and sellers.
B. Control of products offered. As a result of our status as a venue, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. We cannot ensure that a buyer or seller will actually complete a transaction.
C. Identity Verification. We frequently verify the accuracy of the information our users provide us when they register on the Site. However, due to the expense and difficulty of verifying this information, The Legato Corp. cannot and does not confirm each user's purported identity. As a result, we have established a system based on user-initiated feedback that is designed to help you evaluate with whom you are dealing. We also provide tools that allow you to communicate directly with potential trading partners, and we encourage you to use these tools to communicate with these other users.
D. Release. Because, among other things, we are a venue and not an auctioneer, in the event that you have a dispute with one or more users, you hereby release The Legato Corp. (and our officers, directors, agents, subsidiaries, partners, joint ventures and employees) from claims, demands and damages of every kind and nature including, without limitation, direct, indirect, special, consequential, and incidental damages, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Note to California residents: If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
E. Information Control. We have no control of the information provided by other users that is made available to you through our system. As a result, you may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and use safe buying and selling practices when using the Site. Please note that although we attempt to verify all users, there are also risks of dealing with underage persons or people acting under false pretense. Further, there may also be risks dealing with international trade and foreign nationals. By using this Site, you agree to accept such risks and The Legato Corp. is not responsible for the acts or omissions of users on the Site.
6. BIDDING AND BUYING
A. Obligations. As a buyer, you are obligated to complete the transaction with the seller if you are the highest bidder at the end of an auction (meeting the applicable minimum bid or reserve requirements) and your bid is accepted by the seller, unless the item or the transaction is prohibited by law or by this Agreement.
B. Bidding. By entering a bid on an item you agree to be bound by the conditions of sale included in the item's description unless these conditions of sale are in violation of this Agreement or unlawful. Bids are final and not retractable except in exceptional circumstances, such as:
1. when the seller materially changes the item's description after you bid;
2. a clear typographical error is made; or
3. you cannot authenticate the seller's identity
7. LISTING AND SELLING
A. Listing Parameters.
1. You must be legally able to sell the item(s) you list for sale on the Site.
2. You must accurately describe your item and you must include all applicable terms of sale on the listing page of the Site.
3. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item.
4. All listed items must be listed in the appropriate category.
B. Binding Bids. If you receive at least one bid at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), you are obligated as the seller to complete the transaction with the highest bidder upon the auction's completion, unless there is an exceptional circumstance, such as:
(a) the buyer fails to meet the terms of your listing (such as payment method), or
(b) you cannot authenticate the buyer's identity.
C. Fraud. Without limiting any other remedies, The Legato Corp. reserves the right to suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
D. Manipulation. Neither you, bidders, nor sellers may manipulate the price of any item, nor may you interfere with other user's listings or transactions.
8. YOUR INFORMATION
A. Definition. "Your Information" is defined as any information you provide to us or other users in the registration, bidding or listing process, in any public message area (including the forums and feedback area) or through any e-mail feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.
B. Restricted Activities. Your Information (or any items listed) and your activities on the Site shall not:
1. be false, inaccurate, or misleading;
2. be fraudulent or involve the sale of counterfeit or stolen items;
3. infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
4. violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising);
5. be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
6. be obscene or contain pornography or in any way be harmful to minors.
7. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
8. create liability for The Legato Corp. or by action or omission cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and
9. link directly or indirectly to or include descriptions of goods or services that:
(a) are prohibited under this Agreement;
(b) are identical to other items you have up for auction but are priced lower than your item's reserve or minimum bid amount;
(c) are concurrently listed for sale on another auction other than The Legato Corp.'s (this does not prevent you linking to or advertising The Legato Corp. item from another Web site); or
(d) you do not have a legal right under any applicable law to link to or include.
Furthermore, you may not list any item on the Site (or consummate any transaction that was initiated using our service) that, by paying to us the listing fee, could cause us to violate any applicable law, statute, ordinance, or regulation.
9. ACCESS AND INTERFERENCE
A. Interference. Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to The Legato Corp. by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not:
1. take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure;
2. copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of The Legato Corp. and the appropriate third party, as applicable; and
3. interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or measures we may use to prevent or restrict access to the Site.
Feedback is one of the most important means to ensure the safety of each bidder, buyer, and seller. It is important that the accuracy and integrity of the system is not compromised.
A. Integrity. You may not take any actions that may undermine the integrity of the feedback system. We may limit the number of bids and listings you may place on the Site based upon the level of your feedback.
B. Export. Feedback on the site consists of comments left by other users who have dealt with you and a composite feedback number compiled by The Legato Corp., and that the composite number without the comments does not convey your full user profile. Because feedback ratings are not designed for any purpose other than for facilitating safe trading between The Legato Corp. users, you agree that you shall not market or export your The Legato Corp. feedback rating in any venue other than The Legato Corp. operated Web site.
C. Import. We do not provide you the technical ability to import feedback from other (non-The Legato Corp. operated) Web sites to The Legato Corp. because a composite number, without the corresponding feedback does not reflect your true online reputation within our auction venue community.
Without limiting other remedies available to us under any applicable law we may limit your activity, immediately remove your bids or item listings, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if;
(a) you breach this Agreement or the documents it incorporates by reference;
(b) we are unable to verify or authenticate any information you provide to us; or
(c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
B. Storage. We store and process your information on computers located in the United States If you object to Your Information being transferred or used in this way, do not use our services.
13. NO WARRANTY
The Legato Corp., OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY. The Legato Corp., OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
14. LIABILITY LIMIT
IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING OUR NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO NO MORE THAN THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
You agree to indemnify, defend and hold us and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including, without limitation, reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
16. LEGAL COMPLIANCE
You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
17. NO AGENCY
You and The Legato Corp. are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
A. Legal. Except as explicitly stated otherwise, any legal notices to us shall be given by postal mail to The Legato Corp. Attn: Dan A. Moore, 501 Pierce Street, Suite 300, Sioux City, Iowa 51101.
B. General. All other notices shall be given by postal mail to The Legato Corp., PO BOX 2804, Sioux City, Iowa 51106.
C. User Notices. Any notices to you shall be given to the e-mail address you provide to The Legato Corp. during the registration process. Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to The Legato Corp. during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
19. RESOLUTION OF DISPUTES
A. General. In the event a dispute arises between you and The Legato Corp., our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and The Legato Corp. agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
B. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) you or The Legato Corp. may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
C. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Woodbury County, Iowa or where the defendant is located You and The Legato Corp. agree to submit to the personal jurisdiction of the federal and state courts located within the county of Woodbury, Iowa.
D. Alternative Dispute Resolution. Alternatively, The Legato Corp. will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Woodbury County, Iowa or another location mutually agreed upon by the parties. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim. Should either party file an action contrary to this section, the other party may recover all of its attorneys' fees and costs provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
This Agreement shall be governed in all respects by the laws of the State of Iowa as such laws are applied to agreements entered into and to be performed entirely within Iowa between Iowa residents. We do not guarantee continuous, uninterrupted, or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be modified to the minimum extent necessary to be valid and enforceable and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by The Legato Corp. in accordance with Section 18 "Notices", in our sole discretion, Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. Sections 4 (Fees and Services) with respect to fees owed for our services, 5E (Release), 8C (License), 9 (Access and Interference), 14 (Liability Limit), 15 (Indemnity) and 19 (Resolution of Disputes) shall survive any termination or expiration of this Agreement.