Point Blank Auctions User Agreement (Updated March 1, 2009)
Welcome to Point Blank Auctions User Agreement. This Agreement describes the terms and conditions applicable to your use of our services at Point Blank Auctions. Point Blank Auctions is owned and operated by TRT Communications. If you have any questions please contact us at admin@pbauction.biz.
We may amend this Agreement at any time by posting the amended terms on our site. Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on our site. This Agreement may not be otherwise amended except in a writing signed by You, Point Blank Auctions and TRT Communications. This agreement was last revised on May 31, 2005.
1. Membership Eligibility.
Our services are available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to minors. If you do not qualify, please do not use our services. Further, our services are not available to temporarily or indefinitely suspended Point Blank Auctions members.
2. Fees and Services.
Joining and bidding on items on Point Blank Auctions is free. Our Fees and Policies are available under the "help" link on the home page of www.pbauction.biz/asp/helpgeneral.asp. We may change our Fees and Policies for our services from at any time. Our changes to the policy are effective after we provide you with at least seven (7) days notice of the changes by posting the changes on the "help" link on the home page of www.pbauction.biz/asp/helpgeneral.asp. However, we may choose to temporarily change our Fees and Policies for our services for promotional events (for example, freeloader days) and such changes are effective when we post the temporary promotional event on at Point Blank Auctions. When you list an item you have an opportunity to review and accept the fees that you will be charged for the use of our listing services. We may in our sole discretion change some or all of our services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and our website and all applicable taxes.
3. Point Blank Auctions is Only a Venue.
3.1- Overview. Our site acts as the venue for sellers to list items (or, as appropriate, solicit offers to buy) and buyers to bid on items. We are not involved in the actual transaction between buyers and sellers. As a result, 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 buy items. We cannot ensure that a buyer or seller will actually complete a transaction.
3.2- Safe Trading. Because user authentication on the Internet is difficult, Point Blank Auctions cannot and does not confirm each user's purported identity. Thus, we have established a user-initiated feedback system to help you evaluate with whom you are dealing. We also encourage you to communicate directly with potential trading partners. You may also wish to consider using a third party escrow service or services that provide additional user verification.
3.3- Release. Because we are not involved in the actual transaction between buyers and sellers, in the event that you have a dispute with one or more users, you release Point Blank Auctions (and our officers, directors, agents, subsidiaries, owner and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code #167;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."
3.4- Information Control. We do not control the information provided by other users which is made available through our system. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using our site. Please note that there are also risks of dealing with foreign nationals, underage persons or people acting under false pretense.
4. Bidding and Buying.
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, you are obligated to complete the transaction with the seller, unless the transaction is prohibited by law or by this Agreement. By bidding on an item you agree to be bound by the conditions of sale included in the item's description (or linked to from the description) so long as those conditions of sale are not in violation of this Agreement or unlawful. Bids are not retractable except in exceptional circumstances such as when the seller materially changes the item's description after you bid, a clear typographical error is made, or you cannot authenticate the seller's identity.
5. Listing and Selling.
5.1- Listing Description. Listings may only include text descriptions, graphics and pictures you supply to our site (or that you link to from your personal site) that describe your item for sale (or as appropriate, for which are soliciting offers to buy). All listed items must be listed in an appropriate category. All Dutch auction items must be identical (the size, color, make, and model. All must be the same for each item). At any one time you may not promote identical items in more than ten (10) listings (whether Dutch or Regular auction style) on our site.
5.2- 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 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. You may not promote any other sites or your personal web site on Point Blank Auctions with out permission from Point Blank Auctions.
5.3- Fraud. Without limiting any other remedies, Point Blank Auctions may suspend or terminate a user's account if they are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with our site.
5.4- Manipulation. Neither bidders nor sellers may manipulate the price of any item nor may you interfere with other user's listings or auctions.
6. Your Information.
"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 feedback area) or through any email feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. With respect to Your Information: 6.1- Your Information (or any items listed therein): (a) shall not be false, inaccurate or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harrassing; (f) shall not be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Adults Only section and shall be distributed only to people legally permitted to receive such content; (g) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) shall not link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are identical to other items you have up for auction but are priced lower than your item's reserve or minimum bid amount; (cc) are concurrently listed for auction on a web site other than Point Blank Auctions'; or (dd) you do not have a right to link to or include. Furthermore, you may not list any item on our site (or consummate any transaction that was initiated using our service) that, by paying to us the listing fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation.
6.2- Solely to enable Point Blank Auctions to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information. Point Blank Auctions will only use Your Information in accordance with our Privacy Policy.
7. Access and Interference.
Our web site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Point Blank Auctions site or any auction being conducted on our site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our site is updated on a real time basis and is proprietary or is licensed to Point Blank Auctions by our users or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our website without the prior expressed written permission of Point Blank Auctions or the appropriate third party.
8. Breach.
Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you: (a) if you breach this Agreement or the documents it incorporates by reference; (b) if we are unable to verify or authenticate any information you provide to us; or (c) if we believe that your actions may cause legal liability for you, our users or us.
9. Privacy.
Our current Privacy Policy is available (at http://www.pbauction.biz/privacy.htm).
10. No Warranty.
WE AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE 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 disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.
11. Liability Limit.
IN NO EVENT SHALL WE 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 NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some states do not allow the limitation of liability, so the foregoing limitation may not apply to you.
12. Indemnity.
You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including 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.
13. Legal Compliance.
You shall comply with all applicable 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.
14. No Agency.
You and Point Blank Auctions are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
15. Notices.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Point Blank Auctions, Attn: Legal Department, P.O. Box 741211, Orange City, FL. 32774 (in the case of Point Blank Auctions) or to the email address you provide to Point Blank Auctions during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Point Blank Auctions during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
16. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or our services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Either you or Point Blank Auctions may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of you or Point Blank Auctions pending the completion of arbitration. 17. Affiliate Program Terms of service
Affiliates: All affiliate membership is subject to prior approval. Point Blank Auctions reserves the right to refuse service to any new or existing affiliate, in its sole discretion, with our without cause. Point Blank Auctions reserves the right to refuse to do business with anyone, at any time, for any reason. Point Blank Auctions reserves the right, without liability, to reject, omit or exclude any affiliate, webmaster or website for any reason at any time, with or without notice and regardless of any previous conditions. By using The Point Blank Auctions Affiliate Program, the You warrant that: You are 18 years of age and that there is no legal reason that the Affiliate cannot enter into a binding agreement. You are the owner or are licensed to use the entire contents contained on the approved website. The website and/or newsletter does not violate any law or regulation. The website and/or newsletter does not contain misrepresentation or content that is defamatory or violates any rights of privacy or publicity. The website and or/newsletter does not and will not infringe any copyright, trademark, patent or other proprietary right.
You can place our banners anywhere on your site as you see fit, or within non-spam emails.
NOT ALLOWED: All other uses of banners or links, such as newsgroups, chat rooms, message boards, banner networks, counters, or guestbooks etc. are NOT allowed.
Failure to abide by these rules could mean termination from Affiliate Program.
Fraud is a serious offense, and will be treated as such. Fraud is defined as any action that intentionally attempts to create sales or click-throughs using robots, scripts, or manually "refreshing" of pages, for the sole purpose of creating commissions. Privacy policy:
Point Blank Auctions respects the privacy of its users and promises not to disclose personal or business information to third parties without the express permission of You and Your company. We will not sell Your name, e-mail address, phone number, or any other personal information to anyone else. We consider this information to be private, and it will remain as such. If You have any questions about Your privacy rights, contact us at webmaster@pbauction.biz Affiliate payment:
You will receive a commission for each membership or authorized sale via your link on Point Blank Auctions. In order to place links, You must first be approved by Point Blank Auctions to become an affiliate of the Point Blank Auctions Affiliate Program. You understand that the payout amount may be changed at any time. You are responsible for determining if the payout for a link You have placed on Your site has changed or been discontinued. You may not receive commissions for your own purchases. You receive the commissions from Point Blank Auctions (www.pbauction.biz). Payments are made on the first (1th) day of each month when Your account balance reaches $50 or more for the previous months' transactions. Payments is sent to your Paypal account. Refunds, Chargebacks and Bad Checks:
If an order is later refunded to the customer or charged back by the customer, or if a customer's check does not clear, the referral fee, and any Affiliate charge back fees, will be deducted from the next monthly payment sent to the Affiliate. 18. Additional Terms.
The following documents are incorporated by reference:
17.1- Our Privacy Policy is available at http://www.pbauction.biz/privacy.htm . We may change our Privacy Policy from time to time and our changes are effective after we provide you with at least thirty (30) days' notice of the changes by posting the changes on the announcements board and sending email to users who select such notification.
19. General.
This Agreement shall be governed in all respects by the laws of the State of Washington as such laws are applied to agreements entered into and to be performed entirely within Washington State and between Washington residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our 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 struck and the remaining provisions shall be enforced. 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.
20. Disclosures.
The services hereunder are offered by Point Blank Auctions, located at Box 741211, Orange City Fl. 32774-1211.
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