This Agreement was last revised on October 15, 2020
1. Use of Our Service.
The Service is a place that offers online resources and information about current, upcoming and past Auctions, and the ability to bid on memorabilia and collectibles (“Items”) in active Auctions (each an “Auction” and collectively, the “Auctions”). By enabling users to find, view, and learn about its Auctions and Items, our goal is to generate interest, excitement, and enthusiasm for the Company’s services. VIP grants you permission to use the Service as set forth in this Agreement, provided that: (i) you will not copy, distribute, or disclose any part of the Service in any medium; (ii) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; and (iii) you will otherwise comply with the terms and conditions of this Agreement.
In the event you elect to participate in any Auction that we conduct, you further agree to comply with VIP’s Terms and Conditions
Use of and Membership in the Service is void where prohibited. This Service is intended solely for Users who are eighteen (18) years of age or older, and any registration, use or access to the Service by anyone under 18 is unauthorized, unlicensed, and in violation of this Agreement. VIP may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18.
3. Term and Termination. This Agreement shall remain in full force and effect while you use the Service and/or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member’s account settings page.
VIP may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in our sole determination, you violate any of terms of this Agreement, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Service; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; or, (vi) bypassing the measures we may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with an email address that is not rightfully yours.
4. Membership Accounts. You will need to register with VIP and create a “Member” account by direct registration on the site. Your membership account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You may use your account settings to control your Member Profile.
a. Password and Email. When you sign up to become a Member, you will also be asked to choose a username, permanent password and supply your email address. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify VIP immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account, and the activity that occurs on your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of your account. Although VIP will not be liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of VIP or others due to such unauthorized use.
b. Communications and Notifications. By providing your email address to VIP, you consent to our using the email address to send you Service-related notices, including, but not limited to, notices required by law, in lieu of postal mail. We may also use your email address to send you other messages, including changes to our features, marketing messages, and special offers. If you do not want to receive such email messages, you may opt out by changing the notification settings in your account, or by sending mail to the following postal address:
VIP Fan Auctions
424 Fort Hill Drive, Bldg 128
Naperville, IL 60540
Opting out may prevent you from receiving email messages regarding updates, improvements, or special offers.
c. Personal Use. Member accounts are for your personal, non-commercial use only, and are limited to one account per person. When creating your account, you must provide accurate and complete information. You may not create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple Membership Accounts. Additionally, you may not impersonate someone else (e.g., adopt the identity of a celebrity or your next-door neighbor). You may never use another Member’s account without permission.
5. Non-Commercial Use by Members. The Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or expressly approved in writing by VIP. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. Illegal and/or unauthorized use of VIP’s Service, including collecting and/or harvesting personally identifiable information, including usernames and/or email addresses of Members, by electronic or other means for the purpose of sending spam, unsolicited email or unauthorized framing of or linking to the website is prohibited. You agree not to use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. Appropriate legal action will be taken for any illegal or unauthorized use of our Service.
6. Export Control: You shall not shall use, export, import, or transfer any part of the Service or Content except as authorized by U.S. law, the laws of the jurisdiction in which you use or access the Service or Content, or any other applicable laws. In particular, but without limitation, no part of the Service or Content may be exported or re-exported: (i) into any country embargoed by the U.S.; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By registering for the Service, you represent and warrant that: (x) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Service or Content for any purpose prohibited by law. You acknowledge and agree that the Service, Content and Auction Items provided by VIP are subject to the export control laws and regulations of the U.S. You shall comply with those laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer VIP products, content, services, or technology, either directly or indirectly, to any country in violation of those laws and regulations.
7. Billing and Payments.
a. General. You acknowledge that VIP may charge a fee for the use of any Services, provided that VIP notifies you of any such fee before you incur it. Subject to the foregoing, you agree to pay any fees incurred by you. Member agrees to pay for all Items ordered through the Website using the payment method indicated and provides VIP express authorization to charge said fees to the Member’s payment provider at time of purchase. Fees owed depend on the specific type and quantity of Company Items ordered. Payment of fees shall not be contingent on any events other than the delivery of the ordered Items. Any attorney fees, court costs, or other costs incurred in collection of delinquent undisputed amounts shall be the responsibility of and paid for by Member. If payment is not current, VIP may immediately cease to provide any and all Items to the Member. It is the Member’s responsibility to promptly provide VIP with any contact or billing information changes or updates (including phone number, email address, physical address, credit card numbers, etc.). Account updates should be made online via the “My Account” section, once member has logged into the Service. Credit card verification may be done in VIP’s sole discretion in connection with registration as a Bidder for Auctions as detailed in VIP’s Terms and Conditions [include link to T&C]. All sales are final, non-cancelable and non-refundable except as expressly set forth in this Agreement or as otherwise determined by us in our sole discretion.
b. Prices. All listed prices for Items at Auction are the starting or current Bid prices and are subject to change without notice. All pricing is in United States dollars.
c, Auction Purchase Fees. If you purchase any Items at Auction, you acknowledge that such purchases are subject to a Buyer’s Premium fee if you made your winning Bid via the Service.
d. Shipping. Any tangible property purchased through the Service will be shipped FOB Shipping Point. Title to such products purchased by you from the Service passes from Company (or, as applicable, from the Company’s authorized third-party fulfillment provider) to you upon shipment. Shipping costs in connection with your order are in addition to the price for the Items, and may vary based on the type, size and quantity of items you purchased and the shipping destination address. You will have the opportunity to view such shipping costs in your order summary prior to confirming your purchase. Shipping costs will be itemized on your auction invoice. In the event you do not receive your order, please Contact Us, and VIP will either: (i) provide you with store credit for the amount of your Item purchase plus free shipping, or (ii) fully refund the amount you paid for the Item provided that you have successfully filed a claim with the shipper and have shared this information with VIP.
e. Discrepancies. The Member must notify VIP about any billing problems or discrepancies within sixty (60) days after charges first appear on their Account statement. If it is not brought to our attention within 60 days, Member agrees to waive their right to dispute such problems or discrepancies.
f. Taxes. Member will be responsible for any applicable sales or use tax, duties, or other governmental taxes or fees payable in connection with the Member’s purchase. If you do not pay such sales or other tax or fee on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such sale, and Company reserves the right to collect such taxes or other fees from you at any time.
g. Inspection. All Items must be inspected by you upon delivery. In the event your order arrives damaged, please contact the shipping company directly concerning any damage to your Item(s) and successfully complete their claim filing process and Contact Us with your claim number and information as a courtesy so that we can update the information in our system.
h. Incorrect Item. Contact Us if you received an different Item than what you won and paid for on the Service.
8. License Grant. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, personal license to use the Service. VIP reserves all rights not expressly granted herein in the Service and the Content (as defined below). VIP may terminate this license at any time for any reason or no reason.
9. Our Proprietary Rights.
a. Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
b. Content. Except for your User Content, the Service and its materials, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the “Content”), and all Intellectual Property Rights related thereto, are the exclusive property of VIP and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
c. Ideas and Comments. You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place VIP under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, VIP does not waive any rights to use similar or related ideas previously known to VIP, or developed by its employees, or obtained from sources other than you.
10.User Content and User Content Responsibility.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined above), rights of publicity and privacy. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
b. Responsibility for User Content. VIP takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. In the event that you elect to download User Content, VIP recommends that you only download or access files from a trusted source and implement security measures to scan downloaded files for contaminants. VIP disclaims any responsibility or liability relating to your access to or downloading of User Content. VIP is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that VIP shall not be liable for any damages you allege to incur as a result of such User Content.
11. Additional Representations and Warranties.
You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following:
A. You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
B. Your User Content and our use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and/or rights of publicity.
12. DMCA Copyright Policy. You may not post, modify, distribute, or reproduce in any way, any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of VIP to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of prompt notification to VIP by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide us with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Service; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please provide this information to:
VIP Fan Auctions
424 Fort Hill Drive, Suite 128
Naperville, IL 60540
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying VIP and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the Digital Millennium Copyright Act (“DMCA”), including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, VIP has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, members who are deemed to be repeat infringers. VIP may also, at its sole discretion, limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
13. Mobile Use.
Though you may access the Service via a mobile device, VIP shall not be liable for any delay in performing or failure to perform any obligation hereunder by circumstances beyond our reasonable control including (without limitation) any technical problems beyond the control of VIP such as (for example) defects, congestion or failures of capacity or otherwise in the public data or telephone or mobile carrier network or caused by atmospheric interference, your mobile device being turned off for an extended period of time so that messages are not retained, or your being unable to obtain mobile network coverage.
VIP has implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information and User Content for improper purposes. You acknowledge that you provide your personal information at your own risk.
16. Third-Party Websites, Advertisers or Services.
Your dealings with or participation in promotions of advertisers to which you opt-in and/or find on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that VIP shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless VIP and its subsidiaries, agents, and other affiliated companies, and the employees, contractors, agents, officers, shareholders, members and directors of each, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any information that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
18. No Warranty.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, VIP, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. VIP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE AND VIP WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
19. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIP, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, LIMITED OR GENERAL PARTNERS OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. VIP IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER OR OTHER USER OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL VIP BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, INCLUDING VIEWING, PLAYING OR DOWNLOADING ANY MATERIALS ON OR FROM THE SERVICE, OR OTHERWISE IN CONNECTION WITH THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL VIP, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO VIP HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF VIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
20. Limitation of Liability
PLEASE READ THIS SECTION CAREFULLY. IT INCLUDES A MANDATORY ARBITRATION PROVISION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SITES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS SECTION ALSO INCLUDES A JURY WAIVER.
You and VIP agree that any dispute, controversy, or claim that has arisen or may arise between us relating in any way to your use of or access to the Auction, the Service, any interpretation, breach, enforcement, or termination of these Auction Terms and Conditions, or otherwise relating to VIP in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 10.
a. Informal Resolution. If you have any dispute with us, you agree that before taking any formal action, you will Contact Us with a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of your issue.
b. Applicable Law. The laws of the State of Illinois, and applicable federal law, will govern all Covered Matters. Illinois conflicts of law rules shall apply.
d. Award. You agree and acknowledge that in any award to be granted by the Arbitrator, your rights and remedies against us or any distributor of financier or other party related to the Auction or Service shall be limited to an action at law for money damages, and you hereby waive all other rights and remedies you may have at law or in equity (including, without limitation, injunctive relief, rescission, cancellation, and termination of this Agreement or the right to enjoin or restrain the advertisement, promotion, marketing or exploitation by VIP or any third party in connection with the Auction and/or any rights or activities hereunder in any and all manner of media whatsoever, whether now known or hereafter devised). For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same VIP user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
e. Exceptions. There are only two exceptions in which the parties may elect to seek resolution outside of Arbitration before JAMS:
(i) First, if we reasonably believe that you have in any manner infringed upon or violated or threatened to violate or infringe any of our Intellectual Property Rights, privacy rights, publicity rights, or data security, in which case you acknowledge that there may be no adequate remedy at law and we may seek injunctive or other appropriate relief in any court of competent jurisdiction, without any attempt at informal resolution pursuant to paragraph 10(a) above.
(ii) Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in DuPage County, Illinois, if the claim and the parties are within the jurisdiction of the small claims court and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
f. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by JAMS rules unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your request, VIP will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator’s decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, VIP is relieved of its obligation to reimburse you for any fees associated with the arbitration. The prevailing party shall be entitled to an award of all attorneys’ fees, costs, and expenses incurred by it in connection with the dispute. “Attorneys’ fees and expenses” includes, without limitation, paralegals’ fees and expenses, attorneys’ consultants’ fees and expenses, expert witness’ fees and expenses, and all other expenses incurred by the prevailing party or its attorneys in the course of their representation of the prevailing party in anticipation of and/or during the course of the litigation, whether or not otherwise recoverable as “attorneys’ fees” or as “costs” under Illinois law; and the same may be sought and awarded in accordance with Illinois procedure as pertaining to an award of contractual attorneys’ fees.
h. Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order or because of an election pursuant to Paragraph 10(e) above, you agree that any claim, controversy, or dispute that has arisen or may arise between you and VIP must be resolved exclusively by a state or small claims court located in DuPage County, Illinois, or federal court in Cook County, Illinois. You and VIP agree to submit to the exclusive personal jurisdiction of the courts located within DuPage County, Illinois for the purpose of litigating all such state or small claims or disputes and Cook County, Illinois for any federal claims.
i. Opt-Out.IF YOU ARE A NEW VIP USER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY CONTACTING US WITH THE SUBJECT LINE “OPT-OUT NOTICE” OR VIA US MAIL TO: VIP FAN AUCTIONS, 424 FORT HILLS DRIVE, SUITE 128, NAPERVILLE, IL 60540. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME.
l. STATUTE OF LIMITATIONS AND WAIVER OF CLAIMS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICE, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER WAIVED AND BARRED.
21. Availability and Use Outside of the United States.
The Service is controlled and operated from facilities in the United States. VIP makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals located in the United States. Notwithstanding the foregoing, VIP retains all rights, including all Intellectual Property Rights, to the Service and the Content therein, throughout the world.
22. Notification Procedures.
VIP may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by VIP in our sole discretion. VIP reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt-out of certain means of notification as described in this Agreement.
23.Notice to California Users.
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
“VIP Fan Auctions” and other Service graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks, or trade dress of VIP Limited Partnership. VIP’s trademarks and trade dress may not be used in connection with any item, product, or service that is not ours, in any manner that is likely to confuse customers, or in any manner that disparages or discredits VIP. All other trademarks not owned by VIP that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by VIP.
a. Entire Agreement. This Agreement, together with any other legal notices and agreements published by VIP via the Service, shall constitute the entire agreement between you and VIP concerning the Service.
b. No Waiver. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
c. Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
d. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by VIP without restriction.
e. Severability. If any provision of this Agreement is unlawful, void or unenforceable by a court of competent jurisdiction, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
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