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BidPrime Terms of Service

General Information.

Last Updated: May 24, 2018

BidPrime, LLC ("BidPrime") provides a subscription service through a website portal (the “Site,”) and electronic communication for you, the user (“You”) to access real-time government bids and contracts utilizing BidPrime’s proprietary database. All products and services described in this Section, as well as any other products and services offered by BidPrime at any time shall be defined herein as “Service” or “Services.” In order to use the Service, you must read and accept all of the terms and conditions in, and linked to, this Terms of Service agreement (the "Agreement"). This Agreement may be modified by BidPrime from time to time at our sole discretion, and you may be notified as set forth below. We strongly recommend that, as you read this Agreement, you also access and read the linked information. By accepting this Agreement, you also agree that your use of some BidPrime-branded websites or other websites we operate may be governed by separate terms and conditions, agreements and privacy policies. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.

1. BIDPRIME SERVICE

BidPrime allows you to access and view real-time state and local government requests for proposals, bids, contracts and awards on projects in a variety of industries. BidPrime does not facilitate the entry of information into forms, delivery of information, and/or filing of documentation with governmental entities.

2. REGISTRATION AND ACCOUNT

Account Creation. In order to use the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. BidPrime may suspend or terminate your Account in accordance with the Term and Termination Section.

Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree not to share your Account login information with anyone except your employment obligations to your employer, if applicable. You agree to immediately notify BidPrime of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. BidPrime cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

3. MINIMUM AGE

You must be 18 years of age or older to use or register for the Services.

4. ACCESS TO THE SITE AND THE SERVICES

License. Subject to this Agreement, BidPrime grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and the Services solely for your own, non-competitive use, internal business purposes.

Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or the Services, whether in whole or in part, any content displayed on the Site, or use more than 10% of the entire database of the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site or the Services in order to build or improve a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site or the delivered Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written consent of BidPrime. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to this Agreement. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.

Modification. BidPrime reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that BidPrime will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.

Support and Maintenance. You acknowledge and agree that BidPrime will only provide you with support and maintenance in connection with the Services if you are a paid subscriber of the Service. BidPrime will have no obligation to provide you with any support or maintenance as a free trial user of the Service.

Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site, the Services and its content are owned by BidPrime or BidPrime’s suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. BidPrime and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.

5. PRIVACY POLICY AND CONFIDENTIALITY

BidPrime has established a privacy policy to explain to you, and other users, how your personal information is collected and used. This privacy policy is located at www.bidprime.com/privacypolicy.

6. SERVICE FEES AND BILLING METHODS

BidPrime may charge you for service fees and filing fees. BidPrime may collect these fees directly using a third-party payment service.

Trial Access. Free trials provide up to four weeks of access to the Service. If, after four weeks, you do not opt in to paid subscription, BidPrime will disable the Services and your access to the Site. BidPrime may at times send you promotional offers to trial access users. You will not owe BidPrime any payment after the free trial period ends unless you opt to become a paid subscriber of the Services.

Paid Subscription. BidPrime charges you service fees using a prorated, recurring payment system for subscriptions that recur on a monthly, quarterly, semi-annual, annual, or bi-annual basis dependent on the date of your first payment and selection of paid subscription plan. You will be charged the service fee at the selected time interval of your paid subscription plan. If a payment fails or is expired, you will be notified by BidPrime and access to the Services will be suspended until payment is received.

Automatic Renewal. If you are a paid subscriber of the Services, the paid subscription will be automatically renewed and the payment method on file with BidPrime will be charged based on the chosen paid subscription plan unless you notify BidPrime within 48 hours of your intent to cancel the paid subscription to the Service. BY ACCEPTING THESE TERMS OF SERVICE YOU UNDERSTAND AND AGREE THAT UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE PAID SERVICES (1) YOUR SUBSCRIPTION TO THE PAID SERVICES WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION PLAN PERIOD AND CONTINUE FOR ANOTHER SUBSCRIPTION PERIOD; (2) YOU WILL AUTOMATICALLY BE BILLED AT THE START OF EACH NEW SUBSCPRIPTION PLAN PERIOD; AND (3) THAT PERIODIC CHANGES FOR EACH NEW SUBSCRIPTION PERIOD WILL BE AUTOMATICALLY BILLED TO YOUR DESIGNATED BILLING PAYMENT METHOD. YOU MAY TERMINATE ENROLLMENT IN AUTOMATIC RENEWAL WITH AT LEAST 48 HOURS NOTICE FROM THE END OF THE SUBSCRIPTION PERIOD BY DISABLING AUTORENEW IN THE ACCOUNT SETTINGS SECTION OF THE USER INTERFACE OR CALLING BIDPRIME SUPPORT LINE AT 1-888-808-5356 EXT. 2. IF YOU CANCEL WITHIN 24 HOURS OF THE AUTOMATIC RENEWAL BIDPRIME WILL VOID THE NEW SUBSCRIPTION PERIOD AND GIVE A FULL REFUND OF THE SERVICE FEES CHARGED WITH THE RENEWAL. IF YOU CANCEL WITHIN 10 BUSINESS DAYS OF THE AUTOMATIC RENEWAL BIDPRIME WILL VOID THE NEW SUBSCRIPTION PERIOD AND GIVE A 90% REFUND OF THE SERVICE FEES CHARGED WITH THE RENEWAL. AFTER THE 10TH BUSINESS DAY, THE PAYMENT IS NON-REFUNDABLE.

7. CONSENT TO USE CERTAIN DATA

Diagnostic and Usage Data. You agree that BidPrime and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the BidPrime software, and to verify compliance with this Agreement. BidPrime may use certain information, as long as it is collected in a form that does not personally identify you, to provide and improve BidPrime’s products and services. To enable BidPrime’s partners and third party developers to improve their software, hardware and services designed for use with BidPrime products, BidPrime may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to that partner’s or developer’s software, hardware and/or services, as long as the diagnostic information is in a form that does not personally identify you. BidPrime may use other information in accordance with its privacy policy www.bidprime.com/privacypolicy.

Location Data. If you opt in to location data, BidPrime and its partners, licensees and third party developers may provide certain services through the BidPrime software that rely upon location information. To provide these services, where available, BidPrime and its partners, licensees and third party developers may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your computer, and location search queries. The location data and queries collected by BidPrime are collected in a form that does not personally identify you and may be used by BidPrime and its partners, licensees and third party developers to provide and improve location-based products and services. By using any location-based services provided by or through the BidPrime software, you agree and consent to BidPrime's and its partners', licensees' and third party developers’ transmission, collection, maintenance, processing and use of your location data and queries to provide and improve such products and services.

8. THIRD PARTY LINKS

Third-Party Links. The Site contains third-party data and/or sources (collectively, “Third-Party Data & Sources”). Such Third-Party Data & Sources are not under the control of BidPrime, and BidPrime is not responsible for any Third-Party Data & Sources. BidPrime provides access to these Third-Party Data & Sources only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Data & Sources. You use all Third-Party Data & Sources at your own risk, and should apply a suitable level of caution and discretion in doing so. BIDPRIME DOES NOT CONTROL NOR GUARANTEE THE ACCURACY OF THE DATA IT GATHERS FROM THIRD-PARTY DATA & SOURCES. AT TIMES, TIME DELAYS DUE TO THE THIRD PARTY UPDATING ITS SYSTEM MAY AFFECT ACCURACY OF INFORMATION DISPLAYED BY BIDPRIME. BIDPRIME DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM INACCURACIES OR TIME DELAYS CAUSED BY THIRD-PARTY DATA & SOURCES.

When you click on any of the Third-Party Data & Sources, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Data & Sources.

Release. You hereby release and forever discharge BidPrime (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Site or App users or any Third-Party Data & Sources). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

9. SERVICE PROVIDERS

BidPrime does not endorse and is not responsible or liable for any data, advertising, products, goods or services available or unavailable from, or through, third party filers or governmental agencies (collectively “Service Providers”). You agree that should you use or rely on such data, advertisement, products, goods or services, available or unavailable from, or through any Service Provider, BidPrime is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or representation by any Service Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider exclusively and do not involve BidPrime. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers.

You agree that BidPrime is not responsible for the accessibility or unavailability of any Service Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against BidPrime relating to any interactions or dealings with any Service Provider, and release BidPrime from any and all liability for or relating to any interactions or dealings with Service Providers.

10. DISCLOSURE OF INFORMATION

As BidPrime continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of your information as one of the transferred assets and to be used for any purpose allowed under this Agreement (subject to privacy and confidentiality provisions).

11. TERM AND TERMINATION

Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement or reasonable belief that use of the Site will cause BidPrime liability. We will attempt to notify you of termination where we have advance notice. Upon termination of your rights under this Agreement, your Account and right to access and use the Services will terminate immediately. BidPrime will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your Account except for pre-paid unused fees if you are a paid subscriber and BidPrime terminated your Account other than for violation (whether perceived or actual) of this Agreement.

12. MODIFICATION OF TERMS AND CONDITIONS

This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

13. DELAYS

The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. BidPrime is not responsible for any delays, failures or other damage resulting from such problems.

Notwithstanding anything in this Agreement, if there is a Security Emergency, meaning (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services; or (ii) unauthorized third-party access to the Services, then BidPrime may automatically suspend use of the Services or access to the Site. BidPrime will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

14. EXPORT

The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from BidPrime, or any products utilizing such data, in violation of the United States export laws or regulations.

15. WARRANTY DISCLAIMER

You understand and agree that THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT BIDPRIME ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. BIDPRIME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THE TEXAS DECEPTIVE TRADE PRACTICES ACT. OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (D) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO RETAIN LEGAL COUNSEL, THAT COUNSEL HAS REVIEWED THESE TERMS OF SERVICE IF YOU HAVE RETAINED COUNSEL AND YOU WAIVE ANY CLAIM UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE.

IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to you as they relate to implied warranties.

16. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT BIDPRIME WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (COLLECTIVELY, "DAMAGES"), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) YOUR FAILURE OR INABILITY TO COMPLETE A BID OR OBTAIN A CONTRACT ACCESSED THROUGH THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY BIDPRIME OR THE FAILURE OF BIDPRIME TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BIDPRIME CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF FEES TO BIDPRIME THROUGH THE USE OF A CREDIT CARD (A "CREDIT CARD PROCESSOR"). YOU ALSO EXPRESSLY ACKNOWLEDGE AND AGREE THAT BIDPRIME CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF FEES TO BIDPRIME THROUGHT THE USE OF AN ELECTRONIC CHECK (AN “E-CHECK PROCESSOR”).

17. INDEMNIFICATION

You agree to indemnify, defend and hold harmless BidPrime, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys' fees and court costs due to or arising from: (a) your use of the Service or Site; (b) any violation of this Agreement by you; (c) the inaccurate or untruthful content or other information provided by you to BidPrime or that you submit, transmit or otherwise make available through the Service; or (d) any intentional or willful violation of any rights of another or harm you may have caused to another. BidPrime will have sole control of the defense of any such damage or claim.

18. DISPUTE RESOLUTION

Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with BidPrime and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by the BidPrime that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you if you name BidPrime or any of its subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement in any lawsuit claim of action or otherwise.

Notice Requirement and Informal Dispute Resolution. Before you may seek arbitration, you must first send to BidPrime a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the BidPrime should be sent to: 1306 Rio Grande, Suite B, Austin, TX 78701. After the Notice is received, you and the BidPrime may attempt to resolve the claim or dispute informally. If you and the BidPrime do not resolve the claim or dispute within thirty (30) days after the Notice is received, you may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved only through binding non-appearance-based arbitration. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Austin, Texas. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the BidPrime made to you prior to the initiation of arbitration, the BidPrime will pay you the greater of the award or $1,000.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

Time Limits. If you or the BidPrime pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the BidPrime, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the BidPrime.

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and the BidPrime in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with BidPrime.

Small Claims Court. Notwithstanding the foregoing, either you or the BidPrime may bring an individual action in small claims court.

Collections. Notwithstanding other provisions of this Agreement, BidPrime may seek relief for nonpayment of subscriptions or other monies due under this Agreement in any court of competent jurisdiction. Late payments shall accrue interest on the unpaid balance at a rate of 1.5% per month, or the maximum rate under law, whichever is lower, from the date such payment was due until the date paid. BidPrime may also collect all attorneys fees, costs, expenses and collection expenses associated with its collection efforts.

Emergency Equitable Relief. Notwithstanding the foregoing, BidPrime may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

Penalties for Competitive Violation. In addition to all other remedies available to BidPrime under this Agreement, law and equity, you agree that if you are engaged in competitive activities to BidPrime and use the Site or Services for purposes of obtaining information provided through the Site or the Services, it is difficult for BidPrime to know the extent of its damages in such event and that you agree that BidPrime may seek monetary damages of not less than $25,000 per violation or attempted violation of this Agreement.

Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Travis County, Texas, for such purpose.

19. NOTICE

You agree that BidPrime may communicate any notices to you under this Agreement, through electronic mail, regular mail or posting the notices on the Website. All notices to BidPrime will be provided by either sending: (i) an email to support@bidprime.com or (ii) a letter, first class certified mail, to BidPrime, 1301 S IH 35 #200, Austin, TX 78741. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.

The communications between you and BidPrime use electronic means, whether you use the Site or App or send us emails, or whether BidPrime posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from BidPrime in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that BidPrime provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

20. ENTIRE AGREEMENT

This Agreement governs your use of the Service and constitutes the entire agreement between you and BidPrime. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and BidPrime regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between you and third parties, including but not limited to, Service Providers and others. You represent and warrant that those third party agreements do not interfere with your obligations and duties to BidPrime under this Agreement.

21. GOVERNING LAW

This Agreement and the relationship between you and BidPrime will be governed by the laws of the State of Texas, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where you may be located or any other jurisdiction. Subject to the Arbitration provision above, you agree and consent to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non convens to a claim brought in such court, except that BidPrime may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.

22. PROVISIONS REMAINING IN EFFECT

In the event your use of the Services is terminated or lapses or you are no longer a user of BidPrime, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Section 4, 7-10, and 13-24.

23. FORCE MAJEURE.

Except for payment obligations, neither BidPrime nor you will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

24. MISCELLANEOUS

This Agreement may not be re-sold or assigned by you. If you assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of BidPrime's rights if BidPrime fails to enforce any of the terms or conditions of this Agreement against you. In the event a court finds a provision in this Agreement to not be valid, you and BidPrime agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between you and BidPrime as a result of this Agreement or use of the Service. You acknowledge and agree that each of the Released Parties shall be an intended third party beneficiary of this Agreement.

IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.