AUCTANE PARTNER PORTAL TERMS
1. Acceptance of Terms
Auctane offers a Partner Portal service that allows its partners to register certain deal information, participate in Auctane opportunity sharing, and obtain approved content from Auctane to assist with their partnership efforts (including Auctane Content, the “Auctane Partner Portal”).
2. Key Definitions
“Auctane” refers to Auctane LLC and its affiliates.
“Auctane Content” means any information, resources or data (including text, images, photos, videos, audio, and documents) or any other content in any media and format that Auctane may provide or make available to you in connection with your use of the Auctane Partner Portal.
“Partner Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format that you, directly or indirectly, provide or make available to Auctane in connection with your use of the Auctane Partner Portal.
“Partner Agreement” means the written or electronic Auctane Master Services Agreement or other partner agreement between you and Auctane.
“you” or “your” means you personally as an authorized user of the Auctane Partner Portal and your employer or principal.
Your right to access and use the Auctane Partner Portal is limited to permitted activities relating to your business relationship with Auctane, which activities include, but are not limited to, accessing Auctane marketing materials, Auctane product information and partner program documents and information. You may not use the Auctane Partner Portal for any purpose not relating to your partner relationship with Auctane, or for any purpose that is prohibited by the Auctane Partner Portal Terms. Access to the Auctane Partner Portal is determined by Auctane at its sole discretion and Auctane may temporarily suspend or permanently revoke your access to the Auctane Partner Portal for any reason, with or without notice, at any time. If you have not been designated as the administrator of the Auctane Partner Portal for your organization, access to the Auctane Partner Portal may also be determined by your organization’s administrator, at its discretion.
Any Auctane Content marked as confidential in the Auctane Partner Portal is “confidential information” as defined in your Partner Agreement and you agree that you shall protect such content in accordance with the confidentiality obligations set out in your Partner Agreement.
5. Intellectual Property Rights
You acknowledge that the Auctane Partner Portal is protected by copyrights, trademarks and other intellectual and proprietary rights (“Intellectual Property Rights”); (ii) these Intellectual Property Rights are valid and protected in all media and technologies existing now or later developed; and (iii) except as explicitly provided otherwise, the Auctane Partner Portal Terms and applicable copyright, trademark and other laws govern your use of the Auctane Partner Portal. Any other use, including but not limited to the reproduction, modification, distribution, transmission, republication, display, or performance, of the Auctane Partner Portal is strictly prohibited.
Auctane®, ShipStation®, ShippingEasy®, ShipWorks® and associated brand names and domain names are trademarks of Auctane in the United States and/or other countries. Auctane trademarks and trade dress may not be used in connection with any product or service that is likely to cause confusion among your customers, or in any manner that can be interpreted as business disparagement. All marks not owned by Auctane are the property of their respective owners. You may not use, and nothing contained on the Auctane Partner Portal or in the Auctane Partner Portal Terms grants, by implication, waiver, estoppel or otherwise, any right to use, any trademark displayed on the Auctane Partner Portal without the written permission of Auctane or the respective owner of such trademark, service mark or logo.
Subject only to limited rights to access and use the Auctane Partner Portal as expressly stated herein, all rights, title and interest in and to the Auctane Partner Portal and any information contained therein, and all related intellectual property rights, will belong exclusively to Auctane.
Any feedback, suggestions, testimonials, endorsements, information or materials conveyed to Auctane by you in connection with the Auctane Partner Portal shall be collectively deemed “Feedback.” You hereby grant to Auctane a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback in connection with Auctane’s business.
7. Use of Site
You are required to keep your user credentials (e.g., usernames and passwords) for the Auctane Partner Portal confidential and not disclose any such credentials to any third party. The Auctane Partner Portal, and any portion of the Auctane Partner Portal, may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by Auctane. Auctane reserves the right to refuse service, suspend or terminate accounts, and/or cancel orders in its discretion, including, without limitation, if Auctane believes that your conduct violates applicable law or is harmful to the interests of Auctane. Any use of content or descriptions; any derivative use of the Auctane Partner Portal or its contents; and any use of data mining, robots, or similar data gathering and extraction tools are strictly prohibited. In no event shall you frame any portion of the Auctane Partner Portal or any content contained therein. By using the Auctane Partner Portal, you agree that you will comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations.
As a condition of your access and use of the Auctane Partner Portal, you warrant to Auctane that you:
will be solely responsible for the accuracy, quality, integrity, and legality of Partner Content and of the means by which you acquire or generate Partner Content;
will be solely responsible and liable for all activity conducted through your account in connection with the Auctane Partner Portal;
will use commercially reasonable efforts to prevent unauthorized access to or use of the Auctane Partner Portal, including keeping passwords and usernames confidential and not permitting any third party to access or use your username, password, or account for the Auctane Partner Portal;
will promptly notify Auctane if you become aware of or reasonably suspect any security breach relating in any way to the Auctane Partner Portal, including any loss, theft, or unauthorized disclosure or use of your username, password, or account;
will not use the Auctane Partner Portal for any purpose that is unlawful or prohibited by the Auctane Partner Portal Terms, or the laws and regulations of the jurisdiction in which you are located;
will not use the Auctane Partner Portal to store or transmit any content, including Partner Content, that may be infringing, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws;
will not use the Auctane Partner Portal in any manner that could damage, disable, overburden, or impair the Auctane Partner Portal;
will not attempt to gain unauthorized access to the Auctane Partner Portal, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Auctane Partner Portal, nor will you authorize, permit, or encourage any third-party to do any of the foregoing; and
will not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided through the Auctane Partner Portal.
Auctane reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, at Auctane’s sole discretion.
8. Links to Third Party Websites
The Auctane Partner Portal may contain links to third party websites (“Linked Websites”). The Linked Websites are not under the control of Auctane and Auctane is not responsible for the contents of any Linked Website, including without limitation any link contained in a Linked Website, or any changes or updates to a Linked Website. You should contact the site administrator or webmaster for those Linked Websites if you have any concerns regarding such links or the content located on such Linked Websites. You are responsible for following the terms and conditions of all Linked Websites.
9. Term and Termination
You are subject to the Auctane Partner Portal Terms starting on the date on which you first log in to the Auctane Partner Portal, and will continue to be subject to these terms until your account is terminated. Upon termination of your account, your rights to the Auctane Partner Portal will automatically terminate, and you will cease all use of the Auctane Partner Portal.
Auctane may suspend, revoke or terminate your access to the Auctane Partner Portal without notice for any reason in its sole discretion, including but not limited to your violation of the Auctane Partner Portal Terms.
THE AUCTANE PARTNER PORTAL IS PROVIDED BY AUCTANE ON AN “AS IS” BASIS. AUCTANE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE AUCTANE PARTNER PORTAL. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, AUCTANE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AUCTANE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE AUCTANE PARTNER PORTAL, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. AUCTANE DOES NOT PROMISE OR GUARANTY UNINTERRUPTED OR ERROR-FREE SERVICE.
11. Limitation of Liability
IN THE EVENT AUCTANE IS FOUND TO BE RESPONSIBLE TO YOU FOR DAMAGES IN ANY WAY RELATING TO THE AUCTANE PARTNER PORTAL, YOU AGREE THAT AUCTANE’S TOTAL AGGREGATE LIABILITY TO YOU WILL NOT EXCEED US $1,000 (ONE THOUSAND U.S. DOLLARS) AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. AUCTANE IS NOT LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), PUNITIVE OR EXEMPLARY DAMAGES, THE COST OF ALTERNATIVE SERVICES, OR ATTORNEYS’ FEES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
12. Dispute Resolution; Agreement to Arbitration; and Class Waiver
You and Auctane agree that, except as provided below regarding small claims court proceedings, any dispute, claim or controversy arising out of or relating in any way to the Auctane Partner Portal, the Auctane Partner Portal Terms, and this “Agreement to Arbitrate,” shall be determined by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. YOU AGREE THAT, BY AGREEING TO THE AUCTANE PARTNER PORTAL TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND AUCTANE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision shall survive termination of the Auctane Partner Portal Terms and the termination of your account(s).
PRE-FILING MEDIATION. In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by certified mail with return receipt requested (or any successor service), a written notice of claim (“Notice”). If you are the claimant, the Notice to Auctane must be addressed to: Auctane LLC / Dispute Resolution, 4301 Bull Creek Rd, Suite 300, Austin, Texas 78731, with a cc to Legal Department – Dispute Resolution, Auctane LLC, 1990 E Grand Ave., El Segundo, CA 90245. If Auctane is the claimant, the Notice must be addressed to the address used for your account. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court.
ADDITIONAL ARBITRATION PROVISIONS:
Settlement Offers: During the arbitration, the amount of any settlement offer made by Auctane or you shall not be disclosed to the arbitrator.
Initiating A Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org. Alternatively, you can contact the arbitration administrator by calling 800-778-7879.
Fees for Initiating Arbitration: If you are required to pay a filing fee to initiate arbitration, after Auctane receives notice of the initiation of arbitration, it will promptly reimburse you for your payment of the filing fee at the address we have for you on file (or the address provided in the Notice), unless your claim is for greater than US $10,000 (TEN THOUSAND U.S. DOLLARS).
Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Auctane Partner Portal Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the requirements of this section of the Auctane Partner Portal Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Agreement to Arbitrate.
Location of Hearing: Unless Auctane and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
Award Enhancement: If the arbitrator issues you an award that is greater than the value of Auctane’ last written settlement offer made before an arbitrator was selected (or if Auctane did not make a settlement offer before an arbitrator was selected), then Auctane will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
Class Waiver: YOU AND AUCTANE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Auctane agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by you, then the entirety of the arbitration provision set forth in this section shall be null and void.
Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Small Claims Procedure Alternative: Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such program) as an alternative to proceeding with arbitration.
13. Governing Law
The laws of the State of Texas (or U.S. federal law, if applicable), without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Auctane Partner Portal. By using the Auctane Partner Portal, you submit to the exclusive jurisdiction of Texas courts and further agree that any cause of action arising out of or in connection with these Auctane Partner Portal Terms and/or your use of the Auctane Partner Portal shall be brought only in the federal or state courts in Travis County, Texas.
The Auctane Partner Portal Terms and, to the extent applicable, your Partner Agreement with Auctane are the entire agreement between you and Auctane with respect to the Auctane Partner Portal, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Auctane with respect to the Auctane Partner Portal, including any prior version of these terms. If any provision of the Auctane Partner Portal Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Auctane Partner Portal Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Auctane shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. The Auctane Partner Portal Terms are not assignable, transferable or sublicensable by you except with Auctane’s prior written consent. Auctane may assign, transfer or delegate any of its rights and obligations hereunder without your consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Auctane Partner Portal Terms and neither party has any authority of any kind to bind the other in any respect.
Last Updated: February 9, 2022