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BidBird Terms of Use

Last Modified: May 8, 2020

I. Introduction

Welcome to BidBird! BidBird is a blind, reverse-auction marketplace for users to solicit and bid for the opportunity to sell construction materials in the United States. You are now reading our Terms of Use, an agreement between you and BidBird, LLC (“BidBird,” or “we”), for your use of our online platform and service, which connects people and businesses who want to purchase construction materials (“Buyers”), with people and businesses who want to sell and supply those construction materials (“Bidders”). The platform and service are available at https://www.BidBird.co (the “Website”).

The entity you are contracting with is: BidBird, LLC, 2828 North Central Avenue, Suite 1033, Phoenix, AZ 85004.

These Terms of Use, and all policies and additional terms posted on and in our Website, set out the terms on which BidBird offers you access to and use of our Website (collectively, the “Terms”). You agree to comply with all these Terms when accessing or using our Website. Please read these Terms of Use carefully, because they govern your use of the Website.

II. About BidBird

BidBird is a construction materials network that allows users to solicit and bid for the opportunity to buy construction materials in the United States. The actual contract for sale is directly between the Buyer and Bidder—we do not sell any items ourselves. BidBird is a technology services and platform provider, and not a retailer or a traditional auctioneer. Through our Website, we offer a technology service and platform to allow Buyers and Bidders to connect. Users can sign up to the Services and post their construction material needs by posting a listing (“Listing”). Bidders can sign up to the Website if they want to bid on the opportunity to sell such items to the Buyer. Our responsibilities under these Terms are limited solely to facilitating the availability of our technology services and platform.

We use Stripe, Inc. to process payments by Buyers. We collect payments from Buyers and mail all payments to Bidders in a hard check mailed through the United States Postal Service. Any and all refunds will be mailed via a hard check, as well. To the extent that we accept, hold, or transmit funds in connection with a Listing, we do so as an agent of the applicable Buyer.

Your access to the Website and your participation in any auction or bidding on the Website are at your own risk. We disclaim all warranties, express, limited, or implied, and limit our liability in these Terms.

III. Agreement to these Terms of Use

By using the Website, you agree to be bound by these Terms. Please read these Terms of Use carefully before you start to use the Website. By clicking to accept or agree to the Terms of Use when this option is made available to you on the Registration page, you accept and agree to be bound and abide by these Terms. If you do not want to agree to these Terms, you must not access or use the Website.

Unless you are an agent authorized to bind another person and you are acting under their direction, you may not create an account for anyone other than yourself. If you are accessing and using the Website as an agent of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.

By creating an account on our Website, you agree to abide by these Terms and provide accurate information. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of these Terms.

IV. Using BidBird

You may use the Website only if you are of legal age and have the capacity to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You may use the Website only in compliance with these Terms and all applicable, local, state, national, and international laws, rules and regulations.

If we believe you are abusing our Website in any way, we may in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Website, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical or legal steps to prevent you from using our Website, with or without notice to you.

V. No Endorsement

We do not endorse any Buyers or any items they may offer for sale through the Website. We are not obligated to conduct background checks on any Buyer or Bidder, but we might do so on a discretionary basis. We are not responsible for any damage or harm resulting from communications or interactions with Buyers. Buyers are not employees, agents, or otherwise contractors of BidBird and we do not, in any way, supervise, direct, or control Buyers or Bidders. By using the Website, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers, Bidders, or other third parties will be limited to a claim against the Buyer, the Bidder, or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.

VI. Buyer Listing Conditions

When listing a job for bid on the Website, you agree that:
  • You are responsible for the accuracy and content of the listing and item offered;
  • Content that violates any of BidBird’s Terms may be modified, removed, or obfuscated at BidBird’s discretion.
  • We strive to create a marketplace where Buyers find what they are looking for.
  • Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including but not limited to:
    • Buyer’s location, listing details, and search query.
    • Item’s location, listing format, price and additional costs, and other terms.
    • Number of listings matching the “seller’s” query.
  • Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search results.

Buyers pay a flat listing fee (“Listing Fee”) to BidBird. The Listing Fee is non-refundable, so Buyers are responsible for ensuring that the Listing is accurate before posting the Listing. A Buyer may cancel the Listing, but cancelled Listings will be reflected on the Buyer’s BidBird profile. If a Buyer cancels a Listing, no refund of the Listing Fee will be given. Listings are marked up by a proprietary amount (the “BidBird Fee”). Buyers will only see the Bidder’s final offer price which includes the BidBird Fee.

If you post a Listing, you will be asked to provide payment information, including your credit card number, the expiration date of your credit card, your address(es) for billing and delivery, and other information about your financial accounts (such information “Payment Information”). If you post a Listing, you authorize BidBird and BidBird’s payment processor(s) to use the Payment Information to charge your designated payment account. You also authorize BidBird and BidBird’s payment processors to correct any mistakes in payments made by or to you, including any processing errors we discover, by using the Payment Information to debit or credit the payment account used in the applicable transaction.

You agree to bear any additional charges that your bank or other financial service provider may levy on you. You will receive a confirmation email once the transaction is complete. If you have any concerns or objections regarding charges, you agree to raise them first with us and you agree not to cancel, reject, chargeback or request reversal or any charges related to a Purchase unless you have made a reasonable attempt at resolving the matter directly with BidBird. Any accounts that have charged-back or disputed any charges will be locked and prohibited from using the Website.

When you accept a winning bid via the Website (each, a “Sale”), you are purchasing direct from the applicable Bidder of the item, not from BidBird. Any details regarding the item, including but not limited to product descriptions, warranties, offered, or any other terms set forth in the Listing are between you and the applicable Bidder. Because Buyers and Bidders may be located in separate and applicable tax jurisdictions, a Sale may be subject to local sales, customs, or value-added taxes or additional postage upon delivery. Bidders and Buyers are responsible for paying any applicable tax on the Sale for their respective states,

After a Buyer has paid for their materials through the Website, we will send an email to the winning Bidder and to the Buyer with unique QR codes and contact information for the Bidder.

When a Buyer goes to Will Call to pick-up the materials, the Buyer is expected and encouraged to examine the materials. When a Buyer has inspected the materials and is satisfied that they meet the Buyer’s expectations and that the materials are as described in the listing, the Buyer will approve the materials for completeness and condition, by allowing the Bidder to scan the Buyer’s unique QR code with their smartphone, which will link to the Website and verifies authenticity.

Once the buyer’s QR code is scanned, BidBird will issue a check to the winning bidder less the BidBird fee, which will be sent via USPS mail. By scanning the Buyer’s QR code, the Bidder consents to BidBird’s release of the funds to the Bidder.

VII. Bidder Conditions

BidBird auctions are real, and any bids placed are binding offers to sell the item on the listing. BidBird charges a flat rate fee to bid on a Listing (“Bid Reserve”). The Bid Reserve is non-refundable, so you are responsible for reading the full listing before making a bid or commitment to sell. You agree you will not engage in any manipulative or disruptive bidding practices, including without limitation “shill” bidding or any other practice designed to interfere with the natural progression of bidding or otherwise affect ultimate sale price of any item. You should review and familiarize yourself with any and all terms of sale provided by the Buyer prior to bidding on an item.

If your bid is the winning bid (each, a “Sale”), you will be sent a confirmation email from BidBird which will contain contact information for the Buyer.

When a Buyer goes to Will Call to pick-up the materials, the Buyer is expected and encouraged to examine the materials. When a Buyer has inspected the materials and is satisfied that they meet the Buyer’s expectations and that they are as described in the listing, the Buyer will approve the materials for completeness and condition by allowing the Bidder to scan the Buyer’s unique QR code with their smartphone, which will link to the Website and verifies authenticity. Once the QR code is scanned, BidBird will issue a check via USPS mail to the winning Bidder, less the BidBird Fee. Bidders are responsible for maintaining an accurate mailing address on file, so that we can mail the funds to the Bidder’s proper address.

VIII. Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. Any changes or revisions to the Terms of use will be posted on the Website at least 10 days in advance and will be e-mailed to users for their review prior to implementation. All changes are effective immediately on the stated effective date, and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in in these Terms will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes.

IX. Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

X. Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by these Terms.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your email, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any email, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

XI. Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by BidBird, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. These Terms permit you to use the Website for approved uses only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by BidBird. Any use of the Website not expressly permitted by these Terms is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

XII. Trademarks

The BidBird name, the BidBird logo, and all related names, logos, product and service names, designs, and slogans are registered trademarks of BidBird or its affiliates or licensors. You must not use such marks without the prior written permission of BidBird. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

XIII. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code.

We respond to notices of alleges copyright infringement under the United States Digital Millennium Copyright Act. If you believe that your intellectual property rights have been infringed, please send a report of the alleged copyright infringements via a Digital Millennium Copyright Act (DCMA) notification to the BidBird designated agent (contact information below) by providing ALL of the following information:

A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright that is allegedly infringed.

  • Identification or description of the copyrighted work that you claim has been infringed.
  • Identification or description of where the material that you claim is infringing is located on the BidBird Website, with enough detail that we may find it on the BidBird Website.
  • Your address, telephone number, and email address.
  • A statement by you that you have a good-faith belief that the use of the allegedly infringing material isn’t authorized by the copyright owner, its agent, or the law.
  • A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Contact the designated BidBird agent:

Trevor Pan By mail: 2828 N. Central Avenue, Suite 1033
Phoenix, AZ 85004
By email: ip (at) bidbird (.) co

XIV. Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use.

You agree not to use the Website:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
  • To impersonate or attempt to impersonate BidBird, a BidBird employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm BidBird or users of the Website, or expose them to liability.
Additionally, you agree not to:
  • Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider, bot, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
  • Use any device, software, or routine that interferes with the proper working of the Website.
  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.
  • View more than 1,000 web pages from the Website in any twenty-four (24) hour period.

XV. User Contributions

The Website may contain Listings, message boards, forums, personal web pages or profiles, and other interactive features (collectively, "Interactive Services") that allow users to post, list, submit, publish, display, or transmit to other users or other persons (hereinafter, "post") content or materials (collectively, "User Contribution(s)") on or through the Website.

All User Contributions must comply with the Content Standards set out in these Terms. Any User Contribution you post to the site will be considered non-confidential and non- proprietary. By providing any User Contribution on the Website, you grant us and our licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose/according to your account settings.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and licensees, successors, and assigns.
  • All of your User Contributions do and will comply with these Terms.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not BidBird, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website. You acknowledge that we will not pay royalties on any User Contributions to the Website.

XVI. Monitoring and Enforcement; Termination

We have the right to:

  • Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
  • Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for BidBird.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
  • Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.

YOU WAIVE AND HOLD HARMLESS BIDBIRD FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BIDBIRD DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER BIDBIRD OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

XVII. Content Standards

These content standards apply to any and all User Contributions and use of the Website. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. While Users are anonymous to other Users of the Website, BidBird retains the user-supplied identifying information and may provide that information to any relevant law enforcement agency, if necessary.

Without limiting the foregoing, User Contributions must not:

  • Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote, or assist any unlawful act.
  • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve contests, sweepstakes, and other sales promotions.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

XVIII. Copyright Infringement

If you believe that any User Contributions violate your copyright, please see our Copyright Policy contained in these Terms for instructions on sending us a notice of copyright infringement. It is the policy of BidBird to terminate the user accounts of repeat infringers.

XIX. Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website includes content provided by third parties, including Buyer Listings. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by BidBird, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of BidBird. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

XX. Geographic Restrictions

The owner of the Website is based in the State of Arizona in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

XXI. Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BIDBIRD NOR ANY PERSON ASSOCIATED WITH BIDBIRD MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER BIDBIRD NOR ANYONE ASSOCIATED WITH BIDBIRD REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, BIDBIRD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

XXII. Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL BIDBIRD, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct, or any liability that cannot be excluded or limited under Applicable Law.

XXIII. Indemnification

You agree to defend, indemnify, and hold harmless BidBird, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms, or your use of any information obtained from the Website.

XXIV. Violation of these Terms

We reserve the right to investigate any violation of these Terms, including any unauthorized use of the Website. We reserve the right to take any legal action that we deem appropriate, including contacting and providing information you provide to us to relevant law enforcement agency or agencies.

You agree that your abusive use of the Website may cause damage and harm to us, including impaired goodwill, lost sales, and increased expenses. You also agree that monetary damages for your abusive use of the Website are difficult to determine, and that if you, or others acting with or on behalf of you, request more than 1,000 pages of the Website in any 24-hour period, you, and those acting with you or on behalf of you, will be jointly and severally liable for liquidated damages in the amount of twenty-five cents ($0.25) for each page request made during that 24-hour period which exceed those limits.

XXV. Governing Law and Jurisdiction

All matters relating to the Website and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Website shall be instituted exclusively in the Maricopa County Superior Courts of the State of Arizona or the United States District Court for the District of Arizona located in Phoenix, Arizona. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

XXVI. Dispute Resolution

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, RATHER THAN IN COURT, with the following exceptions:
  • You may assert claims in small claims court if your claims apply;
  • In the event that the arbitration agreement in these Terms is for any reason held to be unenforceable, any litigation against us (except for small-claims court actions) may be commenced only in a federal or state court located within Maricopa County, Arizona, and we both consent to the jurisdiction of those courts for such purposes.

The arbitration agreement in these Terms is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.

This arbitration agreement is intended to be broadly interpreted and will survive termination of these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: BidBird, 2828 N. Central Avenue, Suite 1033, Phoenix, AZ 85004, Attn: General Counsel.

The arbitration will be conducted under the American Arbitration Association (AAA) rules. Payment of all filing, administrative, and arbitrator fees will be governed by AAA’s rules.

XXVII. Waiver and Severability

No waiver by BidBird of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of BidBird to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

XXVIII. EntireAgreement

The Terms constitute the sole and entire agreement between you and BidBird regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.