Legal Agreements
Welcome to the Terms of Service Agreement ("Agreement"). This is a legal agreement between you and
Broker Exchange Network, LLC, a Minnesota limited liability company doing business as BrokerBin.com
(hereinafter referred to as "BrokerBin," "We," "Us," or "Our"). BrokerBin provides the services
("Services") offered through BrokerBin.com (the "Site") to You as a registered subscriber or
authorized user, subject to the terms and conditions of this Agreement. In this Agreement, "Member,"
"You," "Your," and "Yourself" refers to an individual accessing the Site, regardless of any
particular BrokerBin product or Services purchased or licensed. To the extent applicable, "Member,"
"You," and "Your" also includes the company or organization, if any, on whose behalf an individual
is accessing the Site.
By accessing the Site, You expressly acknowledge acceptance of the terms and conditions of this
Agreement. The Agreement will continue in full force and effect until terminated pursuant to Section
5 (Termination). This Agreement is not a transfer of any of BrokerBin's property, rights or
interests nor a license of any of BrokerBin's intellectual property.
BrokerBin reserves the right, in its sole and absolute discretion, to modify or discontinue the
Site, or modify the terms and conditions of this Agreement, without notice or reason given to You.
All modified terms and conditions of this Agreement will be effective 45 days after they are
initially posted on the Site. If a modification is unacceptable, You may terminate this Agreement by
giving notice of termination to BrokerBin and following the procedures in Section 5 (Termination).
If You do not give BrokerBin notice of termination within 15 days of such modification(s), Your
continued use of the Site signifies Your acceptance and agreement to be bound by the modification(s)
to this Agreement.
Conditions for Membership
BrokerBin accepts only those Members that meet BrokerBin's strict membership criteria. Accordingly,
BrokerBin, in its sole and exclusive discretion, accepts only Members who are actively engaged in
the computer parts industry as resellers, dealers, brokers, service centers, manufacturers,
integrators, or variations of the preceding under certain conditions. In the sole and absolute
discretion of BrokerBin, free trials and memberships will not be granted to competitors of
BrokerBin, including, but not limited to, IT parts listing services, sourcing service websites, IT
brokering websites, or any company or individual that is a parent, subsidiary, division, or
affiliate of any company or organization that competes with BrokerBin. Competitors or their
affiliates approved for membership by standard, erroneous, or fraudulent means are in violation of
this Agreement and the law, will be immediately terminated from Service, and may be prosecuted by
BrokerBin to the fullest extent of the law. BrokerBin may, in its sole and
absolute discretion, deny membership or Serviceto any person or entity for any reason or no reason.
Company Membership
To join the Site as a trial or subscribing company, logon to www.BrokerBin.com, choose the
appropriate link, and fill out the required information. All information submitted to BrokerBin
about Yourself and Your company must be valid, current, and accurate to the best of Your knowledge,
or denial, termination, or suspension of membership may occur. After filling out and submitting the
required information, a BrokerBin representative will review Your application, during which time You
may be eligible for a free trial membership ("Free Trial"). During the Free Trial period, Your
company will have access to BrokerBin's Platinum Service level. The individual who enrolled Your
company will be appointed the company administrator ("Administrator") by default. A BrokerBin
representative will then e-mail Your Administrator a password ("Password") and login ("Login"). All
Logins and Passwords are considered property of BrokerBin and are to be used only by the intended
person, the Administrator. Violation of this requirement may cause company suspension or termination
of its membership and the Services. The Administrator is responsible for approving individuals
within Your company to access the Site as Members ("Members"), and is responsible for managing such
Members, their actions, and the security levels for such Members. The security levels may be changed
by the Administrator or a BrokerBin representative, in its sole and exclusive discretion. After Your
Free Trial period expires, Your company may elect to continue Services. At such time, credit card or
other payment information will be required after Your Administrator selects Your service level. The
aforementioned rules regarding Administrator, Members, Login, and Password requirements shall
continue after Your Free Trial period expires, and the fee for Services membership commences.
Company membership may be suspended or terminated at any time without notice or reason in the sole
and absolute discretion of BrokerBin.
Member of a Subscribing Company
To join as a Member of a Free Trial or subscribing company, visit www.BrokerBin.com, choose the
appropriate link, and fill out the required information. All information submitted to BrokerBin
about Yourself must be valid, current, and accurate to the best of Your knowledge, or denial,
termination, or suspension of membership and the Services may occur. After filling out the required
information, a BrokerBin representative may, in its sole and exclusive discretion, grant You access
by sending You a Login and Password via e-mail, provided Your company is currently subscribed as a
Free Trial or a paying Member, and your application is approved by Your Administrator. All Logins
and Passwords are considered property of BrokerBin and are to be used only by the intended person,
the Member. Violation of this may cause company suspension or termination of Services. If You cannot
find Your company while signing up, contact Your company Administrator.
Your BrokerBin Service is billed either on a semi-annual or an annual basis unless a custom plan is
implemented at BrokerBin's sole discretion. The minimum length of subscription for the BrokerBin
Service is twelve (12) months. Other BrokerBin products such as BrokerBox services, custom
memberships, or other services are billed annually with a minimum commitment of one (1) year, which
services are also subject to this Agreement. Your subscription fees are payable in advance and are
not refundable in whole or part.
Credit Cards
Accepted credit cards are Visa, MasterCard, American Express, and Discover. Billing will be
proactive, taking place on the 1st, 8th, 15th, or 22nd of the month, dependent upon Your Service
plan. Invoices are available upon request and unless specifically requested, will not be mailed. If
We do mail You an invoice at your request, administrative fees may apply and may be billed to Your
account.
Company Checks, Wire Transfer, and ACH Payments
Company checks, wire transfers, and ACH payments are also accepted means of payment. Billing will
take place annually. BrokerBin will charge a $30 service fee for each check returned NSF or
otherwise not honored.
Late Payments
Past due accounts may be suspended or canceled without notice after any payment due becomes 15 days
delinquent. BrokerBin reserves the right to charge a late fee of $15 per month on any past due
account. You agree to be liable for all attorneys' and collection fees arising from efforts to
collect any unpaid balance of Your account(s). You agree to be billed for and to pay any outstanding
balance in the event of cancellation or termination of Your account upon demand. Unless You notify
BrokerBin of any billing discrepancies within 90 days after they first appear on Your account
statement, they will be deemed acceptable by You for all purposes, including resolution of inquiries
made by Your credit card issuer. You waive and agree to release BrokerBin from all liabilities and
claims of loss resulting from any billing discrepancy or error that is not reported to BrokerBin
within 90 days of its publication in Your account.
Billing Charges
BrokerBin reserves the right, at any time, to change its fees and billing methods, including the
addition of supplemental fees or separate charges for online areas, content, or Services provided by
BrokerBin, which will be effective 45 days after posting such changes on the Site (the "Effective
Date"). BrokerBin may also elect, in its sole and absolute discretion, to supplement such notice of
billing changes through pop-ups, e-mail, or U.S. Mail to the address provided by Your Administrator.
If any such change is unacceptable to You, You may terminate Your membership as provided in Section
5 (Termination). Your continued use of the Site after the Effective Date will constitute Your
acceptance of such change(s). You acknowledge that the notice efforts outlined in this section are
adequate to inform you of any billing changes with respect to the Services.
This Agreement may be terminated by You upon providing 45 days advance written notice to BrokerBin.
Three methods of notice of termination are acceptable: (1) e-mail to
Sales@BrokerBin.com , (2) fax to
507-292-5747 , attention Sales Manager or (3) U.S. Mail to BrokerBin.com 32 7th Ave NE, Rochester, MN 55906,
attention Sales Manager. BrokerBin will not provide any refunds under any circumstances to Members
who elect to terminate their membership(s) / account(s) prior to the expiration of their membership.
In its sole and absolute discretion, BrokerBin may terminate this Agreement and Your access to the
Services at any time without notice or reason. In the event BrokerBin receives any "ethics
complaint" with respect to You, BrokerBin may, in its sole and absolute discretion, terminate Your
access to the Services. You agree not to mine, harvest or script any data located on this Site; in
the event that BrokerBin receives any evidence of this activity with respect to You, BrokerBin may,
in its sole and absolute discretion, terminate Your access to the Services. The aforementioned
activities materially interfere with and cause damage to BrokerBin's business; BrokerBin may seek
monetary damages and / or equitable relief from You as a result therefrom. BrokerBin also, in its
sole and absolute discretion, may suspend Your access to the Site at any time without notice or
reason. In the event Your account is terminated or suspended, no refund will be granted to You.
All Logins and Passwords are the property of BrokerBin and may be revoked at anytime without notice.
Logins and Passwords must be appropriate and unique on the Site. Logins and Passwords are to be used
only by the intended person, who is the Administrator or Member. Logins and Passwords supplied to
the Member are non-transferable and may only be used by the persons registered under those Logins
and Passwords. Unauthorized use may cause company suspension or termination of its membership and
the Services. Lost Passwords may be retrieved by logging on to Password Recovery, speaking to Your
company Administrator, or contacting a BrokerBin representative.
You and Your Administrator are responsible for the deletion of Members and their user information
when a Member of Your company quits, is terminated, or engages in conduct that violates the terms of
this Agreement. You understand and agree that unauthorized logins are prohibited even when
accomplished with legitimate Logins and Passwords. Unauthorized logins include, but are not limited
to, competitors and their affiliates, terminated Members, and site hackers.
BrokerBin's Site is protected under copyright and other laws. Any reproduction or distribution of
this Site information, by, for, or to any third party, is expressly prohibited.
BrokerBin does not represent that its Services are appropriate or available for use in any
particular location. Those who choose to access the Services do so on their own initiative and are
responsible for compliance with all applicable laws. Membership in, and use of, the Services are
void where prohibited. Software from the Services is subject to United States export controls and
may not be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any
country with which the U.S. maintains a trade embargo prohibiting the shipment of goods; or (ii) to
anyone on or acting on behalf of an entity on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Commerce Department's Denied Persons List or Entities List. By
downloading or using such software, You represent and warrant that You are not (a) located in or a
national or resident of any such country or (b) on any such list or acting on behalf of any person
or entity on any such list.
Additionally, You agree that You will not:
take any action that imposes or may impose (in Our sole and absolute discretion) an unreasonable
or disproportionately large load on BrokerBin's infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly display any
content (except for Your information) from the Site without the prior expressed written
permission of BrokerBin and the appropriate third party, as applicable;
interfere or attempt to interfere with the proper working of the Site or any activities
conducted on the Site;
use any robot, spider, scraper, or other automated means to access the Site for any purpose
without Our express written permission;
post content or items in an inappropriate category or area on the Site;
use the Site for any purpose that is unlawful, fraudulent, or contrary to this Agreement and the
policies of BrokerBin, and You will cooperate fully with BrokerBin to investigate any suspected
unlawful, fraudulent, or improper activity, including but not limited to granting authorized
BrokerBin representatives access to any password-protected portions of Your Member account;
use the Site if You are not able to form legally binding contracts, are under the age of 18, or
are temporarily or indefinitely suspended from Our Site;
interfere with any other Member's listings;
use the Site in any manner that harasses another Member or could interfere with any other
party's use or enjoyment of the Site. You will respect the privacy of others and not use the
Site for unwelcome, rude, or abusive communications;
attempt to gain unauthorized access to any Member account information, computer systems, or
networks associated with the Site;
attempt to obtain any information or materials relating to the Site through any means not
intentionally made available through the Site;
"frame," "mirror," or otherwise copy any portion of the Site without BrokerBin's express written
authorization;
use false identities or impersonate any other person or use a name that You are not authorized
to use;
post false, inaccurate, misleading, defamatory, or libelous content on the Site (including
personal information);
transfer Your Login and/or Password to another party without BrokerBin's consent;
distribute or post unsolicited bulk e-mail or spam to Members or users of the Site;
distribute viruses or any other technologies that may burden or harm BrokerBin or the interests
or property of BrokerBin's Members;
copy, modify, or distribute content from the Site or BrokerBin's intellectual property,
copyrights and
trademarks;
solicit, harvest or otherwise collect information about Members or users, including e-mail
addresses; or
encourage or instruct any other individual to do any of the acts prohibited by this Section 6 or
to violate any term of this Agreement or BrokerBin's policies.
Each Member agrees to conduct Site business in an appropriate, honest, and ethical manner,
including, but not limited to, accurately describing the Member's company, the Member's information,
and the quantity, condition, age, stock status, price, and description of products the Member lists
on the Site. Manipulation of the system to obtain premium listings is expressly prohibited. If any
manipulation occurs, BrokerBin encourages You to report such conduct. Site business not conducted in
good faith may result in suspension or termination of Services in BrokerBin's sole and exclusive
discretion.
You understand and agree that information disclosed through BrokerBin's Site includes proprietary
information belonging to BrokerBin. You agree not to copy or disclose to third parties, in whole or
in part, any portion of the information, including, but not limited to, Site design, software,
navigation, features of the Site, and information concerning other Members and the products they
list on the Site. You further agree not to allow third parties to view Your screen sessions and the
information contained in them while accessing the Site. The provisions of this Section 8
(Confidential Disclosure) survive termination or expiration of this Agreement.
You are solely responsible for all materials, whether publicly posted or privately transmitted, that
You upload, post, e-mail, transmit, or otherwise make available on Our Site ("Your Content"). You
certify that You own all intellectual property rights in Your Content. You hereby grant Us, Our
affiliates, and Our partners a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable
license (through multiple tiers) to use, reproduce, create derivative works of, distribute, publicly
perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent
versions of Your Content for the purposes of (i) displaying Your Content on Our Site, (ii)
distributing Your Content, either electronically or via other media, to users seeking to download or
otherwise acquire it, and/or (iii) storing Your Content in a remote database accessible by end
users, for a charge. This license shall apply to the distribution and the storage of Your Content in
any form, medium, or technology now known or later developed.
BrokerBin is, unless otherwise stated, the owner or licensee of all rights in this Site and its
contents, software, databases, and Services. The materials contained in this Site are protected by
the copyright and trademark laws and other laws of the United States, as well as international
conventions and the laws of other countries. No user of this Site has any right, title, or interest
in the Site, its content, any intellectual property therein, unless any content, software,
databases, or services have been specifically licensed to You in writing by BrokerBin or by its
licensor.
You are prohibited from using the Site or its Services to transmit, route, provide connections to,
or store any material that infringes copyrighted works, trademarks, or otherwise violates, or
promotes the violation of, the intellectual property rights of BrokerBin or any third party.
BrokerBin is committed to respecting others' intellectual property rights, and We ask Our Members to
do the same. BrokerBin may, in its sole and absolute discretion, terminate the accounts or access
rights of Members who violate others' intellectual property rights.
If You believe that Your work has been copied in a way that constitutes copyright infringement on
Our Site, please deliver the following information to BrokerBin's Copyright Agent:
an electronic or physical signature of the person authorized to act on behalf of the copyright
owner;
a description of the copyrighted work that You claim has been infringed;
a description of where the material that You claim is infringing is located on Our Site;
Your address, telephone number, and e-mail address so that We may contact You;
a statement by You that You have a good faith belief that the disputed use is not authorized by
the copyright owner, its agent, or the law; and
a statement by You, made under penalty of perjury, that the information in Your notice to Us is
accurate and that You are the copyright owner or authorized to act on the copyright owner's
behalf.
BrokerBin's Copyright Agent for notice of claims of copyright infringement on Our Site can be
reached as follows:
BrokerBin.com
Attn: Copyright Agent
32 Seventh Ave. N.E.
Rochester, MN 55906
Fax: 507-292-5747
E-mail: Sales@BrokerBin.com
If You have a dispute with one or more Members or users of the Site, You hereby release BrokerBin
(and its managers, governors, agents, subsidiaries, joint ventures and employees) from claims,
demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising
out of or in any way connected with such disputes. If You are a California resident, You waive
California Civil Code §1542, which reads: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the debtor." Residents of other
states, nations, and jurisdictions waive their rights under analogous laws, statutes, and
regulations. The provisions of this Section 11 (Release) survive termination or expiration of this
Agreement.
You hereby agree to indemnify, defend, and hold BrokerBin and all of Our managers, governors,
owners, employees, agents, information providers, affiliates, partners, and licensors (collectively,
the "BrokerBin Parties") harmless from and against any and all allegations, demands, claims,
liabilities, damages, losses, fines, penalties, costs, and expenses of whatsoever nature (including
attorneys' fees) incurred by any BrokerBin Party in connection with any claim, including, but not
limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright
infringement, or trademark infringement arising out of:
Your use of Our Site;
Any use or alleged use of Your accounts or Your Login/Password by any person, whether or not
authorized by You;
The content, the quality, or the performance of content that You submit to Our Site;
Your connection to Our Site;
Your violation of this Agreement; or
Your violation of the rights of any other person or entity.
You may not enter into any settlement that adversely affects BrokerBin without Our prior written
approval. We reserve the right, at Our own expense, to assume the exclusive defense and control
of any matter for which You are required to indemnify Us, and You agree to cooperate with Our
defense of these claims.
The provisions of this Section 12 (Indemnity) survive termination or expiration of this
Agreement.
THE SITE AND SERVICES AND GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE"
WITH NO WARRANTY OF ANY KIND. BROKERBIN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE SITE, SERVICES, AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE,
INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. In addition, BrokerBin makes no representation or
warranty that the operation of the Site will be error free. Some states or other jurisdictions do
not allow the exclusion of implied warranties, so the above exclusions may not apply to You.
The provisions of this Section 13 (No Warranty; As Is) survive termination or expiration of this
Agreement.
BROKERBIN WILL NOT BE LIABLE TO YOU FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS
OPPORTUNITIES, LOST DATA OR ANY OTHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF BROKERBIN HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, BROKERBIN'S AGGREGATE LIABILITY TO
YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) the total fees You
paid to BROKERBIN in the 12 months prior to the action giving rise to the liability, or (b) $100.
BROKERBIN WILL NOT BE LIABLE TO YOU FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS IN THE SITE
OR SERVICES. Some states or other jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitation and exclusions may not apply to You.
Without limiting the foregoing, under no circumstances will BrokerBin be held liable for:
other Members' actions or inactions, including information they post on the Site. You
acknowledge that BrokerBin is not involved in the actual transactions between Members who are
buyers and sellers. BrokerBin has no control over and does not guarantee the quality, safety, or
legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell
items, the ability of buyers to pay for items, or that a buyer or seller will actually complete
a transaction;
any incorrect or inaccurate information, whether caused by the Site, its users, or by any of the
equipment or programming associated with or utilized in the Site. BrokerBin will have no
responsibility or liability for any error, omission, interruption, deletion, defect, delay in
operation or transmission, communications line failure, theft or destruction or unauthorized
access to, or alteration of, the Site. BrokerBin will not be responsible and assumes no
liability for any problems or technical malfunction of any telephone, network, cable or lines,
computer, on-line-systems, servers or providers, computer equipment, software, failure of e-mail
or players on account of technical problems or traffic congestion on the Internet or at any
website or combination thereof, including injury or damage to participants or to any other
person's computer, related to, or resulting from, participating in, or downloading materials of,
the Site;
any delay or failure in performance resulting directly or indirectly from acts of nature,
forces, or causes beyond its reasonable control, including, without limitation, Internet
failures, computer equipment failures, telecommunication equipment failures, other equipment
failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil
disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God,
war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of
third parties, or loss of or fluctuations in heat, light, or air conditioning; or
any unauthorized use of proprietary or confidential information concerning Your business
contacts, including without limitation names and e-mail/business addresses.
Without limiting the foregoing, You acknowledge that the Site contains links to websites
controlled by companies other than BrokerBin, and You agree that BrokerBin is not responsible
for and does not endorse, or accept any liability for, the content or use of those websites.
Electronic Communications Privacy Act Notice (18 U.S.C. § 2701-2711): Without limiting the
foregoing, BrokerBin makes no guaranty of the confidentiality or privacy of any communication or
information transmitted on the Site or any website linked to the Site. BrokerBin will not be
liable for the privacy of the information, e-mail addresses, registration and identification
information, disk space, communications, confidential or trade secret information, or any other
content transmitted over networks accessed by the Site, or otherwise connected with Your use of
the Site.
The provisions of this Section 14 (Limitation of Liability) survive termination or expiration of
this Agreement.
All of the information that We collect from You, such as registration and credit card information,
is subject to Our Privacy Policy. Please click here to see Our full
Privacy Policy.
Please click here to see Our full Terms and
Conditions.
Each Party agrees that any controversy or claim arising out of or relating to this Agreement, the
breach thereof, or its subject matter must be settled by binding arbitration in accordance with the
commercial arbitration rules (then existing) of the American Arbitration Association. The decision
of the arbitrator shall be final and unappealable. The arbitration must be conducted in Rochester,
Minnesota, and judgment on the arbitration award may be entered in any court having jurisdiction
thereof. If a Member files a claim or counterclaim against BrokerBin, the Member must do so on an
individual basis and not with any other Member or as part of a class action. The parties acknowledge
that this Agreement evidences a transaction involving interstate commerce. The Federal Arbitration
Act shall govern the interpretation, enforcement, and proceedings of any arbitration held pursuant
to this Section 16. This Agreement will not be governed by the United Nations Convention of
Contracts for the International Sale of Goods, the application of which hereby is expressly
excluded. Notwithstanding anything to the contrary, BrokerBin, the Member, or any other party to the
arbitration may at any time seek injunctions or other forms of equitable relief from any state or
federal court of competent jurisdiction in Olmsted, Ramsey, or Hennepin County, Minnesota (the
"Court"), and each party hereby consents to and agrees to submit to the exclusive personal
jurisdiction and venue of the Court for the purpose of seeking injunctions or other forms of
equitable relief pending the completion of the arbitration.
The provisions of this Section 16 (Arbitration) survive termination or expiration of this Agreement.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is
intended or created by this Agreement.
You represent and warrant that You have the legal right, power, and authority to agree to the terms
of this Agreement on behalf of Yourself and any subscribing Member affiliated with You. You further
agree that Your use constitutes an electronic signature as defined by the Electronic Signatures in
Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and
that You have formed, executed, entered into, accepted the terms of, and otherwise authenticated
this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes
of E-Sign, UETA, and the Uniform Computer Information Transactions Act and as such is completely
valid, has legal effect, is enforceable, and is binding on, and non-refutable by You and any
subscribing Member affiliated with You. You consent to the use of (a) electronic means to provide
You with any notices given pursuant to this Agreement and (b) electronic records to store
information related to this Agreement and Your use of the Site and Services.
This Agreement and the rights of the parties hereunder will be governed by, interpreted, and
enforced in accordance with the internal laws, and not the laws pertaining to choice or conflict of
laws, of the State of Minnesota and the Federal Arbitration Act.
You may not assign or transfer this Agreement or any Member rights or obligations, in whole or in
part, by operation of law or otherwise, without the prior written consent of BrokerBin, which may be
withheld in its sole and exclusive discretion. BrokerBin may assign this Agreement in whole or in
part without Your consent.
No waiver of this Agreement, or any part hereof, will be binding unless made in writing and signed
by the party claimed to have made such waiver. No waiver of any breach or condition of this
Agreement will be deemed to be a waiver of any other conditions or subsequent breach whether of like
or different nature. The failure of either party to enforce any provision of this Agreement will not
constitute a waiver of the party's rights to enforce subsequently the provision.
This Agreement together with the rules and policies of BrokerBin constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes and replaces all prior
or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
If any provision of this Agreement is, becomes, or is deemed invalid, illegal, or unenforceable in
any jurisdiction, (a) such provision will be deemed amended to conform to applicable laws of such
jurisdiction so as to be valid and enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, it will be stricken; (b) the validity, legality,
and enforceability of such provision will not in any way be affected or impaired thereby in any
other jurisdiction; and (c) the remainder of this Agreement will remain in full force and effect.
Furthermore, in lieu of any invalid, illegal, or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and enforceable.
The provisions of this Section 20 (General Provisions) survive termination or expiration of the
Agreement.
Last revised: Sept 22nd, 2008
The following WEB SITE HOSTING SERVICE AGREEMENT ("Agreement") is a
legal agreement by and between you ("You" or
"Your") and Broker Exchange Network, LLC, a Minnesota limited
liability company doing business as BrokerBin.com ("BrokerBin") of 32 ‑ 7th Avenue
NE, Rochester, MN 55906, and is effective as of the date of electronic execution. This Agreement
sets forth the terms and conditions of Your use of BrokerBin's Web Site Hosting services
(collectively, the "Services") and represents the entire agreement between You and
BrokerBin. By using the Services, You acknowledge that You have read, understand and agree to be
bound by all the terms and conditions of this Agreement, along with any Policies (defined below and
available on BrokerBin's web site).
In consideration of the mutual promises contained in this Agreement, BrokerBin and You agree:
BrokerBin currently provides the Services to its customers for a monthly fee. BrokerBin will host
Your web site on BrokerBin's servers, provided, however, You abide by the terms and conditions set
forth herein and in each of BrokerBin's policies and procedures here.
You grant to BrokerBin and BrokerBin accepts from You, a non-exclusive, worldwide and royalty free
license to copy, display, use and transmit on and via the Internet Your web site content in
connection with BrokerBin's performance or enforcement of this Agreement.
Subject to the terms and conditions of this Agreement, BrokerBin shall attempt to provide the
Services for twenty-four (24) hours per day, seven (7) days per week throughout the term of this
Agreement. You agree that from time to time the Services may be inaccessible or inoperable for any
reason, including, without limitation, (a) equipment malfunctions, (b) periodic maintenance
procedures or repairs that BrokerBin may undertake from time to time, or (c) causes beyond the
control of BrokerBin or that are not reasonably foreseeable by BrokerBin, including, without
limitation, interruption or failure of telecommunication or digital transmission links, hostile
network attacks network congestion or other failures. You acknowledge that the Internet is neither
owned nor controlled by any one entity and that that BrokerBin has no control of availability of the
Services on a continuous or uninterrupted basis; therefore, BrokerBin can make no guarantee that any
given party shall be able to access the server made available by BrokerBin as a part of the Services
at any given time. BrokerBin represents that it shall make every good faith effort to ensure that
the Services are available as widely as possible and with as little service interruption as
possible. Furthermore, in no event will BrokerBin be responsible for and no credit will be given in
relation to (aa) periodic scheduled maintenance or repairs BrokerBin may undertake from time to
time, (bb) errors caused by You from custom scripting or coding, (cc) outages that do not affect the
appearance of the web site but merely affect access to the web site such as FTP and email, (dd)
causes beyond the control of BrokerBin or that are not reasonably foreseeable by BrokerBin, or (ee)
outages related to the reliability of certain programming environments.
4.1
Except to the extent you have purchased web site design, development or support services from
BrokerBin, You shall be solely responsible for providing, updating, uploading and maintaining
Your web site and any and all files, pages, data, works, information and/or materials on,
within, displayed, linked or transmitted to, from or through Your web site, including, without
limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips,
video clips, email or other messages, meta tags, domain names, software and text. Your web site
content shall also include any registered domain names provided by You or registered on behalf
of You in connection with the Services.
4.2
Notwithstanding anything in this Agreement to the contrary, if You are using ad-supported
hosting, in no event shall Your web site consist of the following: search results, registration,
"thank you", error, email or chat pages, pages comprised primarily of other advertising or pages
containing any of the following: (a) pornographic, obscene, excessively profane or
adult-oriented content; (b) content intended to advocate or advance computer hacking or
cracking, to violate any copyright or trademark or to destroy others property or information;
(c) gambling; (d) illegal activity; (e) controlled substances, drug paraphernalia or contraband;
(e) weapons; (f) pirated materials; or (g) hate, violence or racial or ethnic intolerance.
4.3
You represent and warrant to BrokerBin that: (i) Your Content does not and shall not contain any
content, materials, data, work, trade or service mark, trade name, link, advertising or services
that actually or potentially violate any applicable law or regulation; (ii) infringe or
misappropriate any proprietary, intellectual property, contract or tort right of any person; and
(iii) that You own Your web site content and all proprietary or intellectual property rights
therein, or have express written authorization from the owner to copy, use and display the
content on and within Your web site. You also warrant that the web site being hosted by
BrokerBin will not be used in connection with any illegal activity. If You are hosting Your web
site on BrokerBin's servers, You are responsible for ensuring there is no excessive overloading
on BrokerBin's servers. In the event You exceed Your allotted bandwidth or disk space and
thereby overload BrokerBin's servers, You shall be assessed any and all fees, costs and
penalties associated with such overloading. You may not use BrokerBin's servers and Your web
site as a source, intermediary, reply to address, or destination address for mail bombs,
Internet packet flooding, packet corruption, denial of service, or other abusive activities.
Server hacking or other perpetration of security breaches is prohibited and BrokerBin reserves
the right to remove sites containing information about hacking or links to such information. Use
of Your web site as an anonymous gateway is prohibited. BrokerBin prohibits the use of software
or scripts run on its servers that cause the server to load beyond a reasonable level, as
determined by BrokerBin. You agree BrokerBin reserves the right to remove Your web site
temporarily or permanently from its servers if BrokerBin is the recipient of activities that
threaten the stability of its network. Further, if You are using ad-supported hosting, You
acknowledge and agree BrokerBin has the right to terminate Your Services in its sole discretion
and for any reason, including, but not limited to, Your failure or unwillingness to comply with
the terms and limitations of this Agreement, specifically, the content and material restrictions
set forth in this Agreement. You agree not to engage in unacceptable use of any Services, which
includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited
messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on
a daily basis, provided, BrokerBin, in its sole discretion, may permit You, if You have a
legitimate purpose and after request, to send more email than BrokerBin's standard SMTP relay
limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive,
obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or
malicious; (iii) disseminate or transmit files, graphics, software or other material, data or
work that actually or potentially infringes the copyright, trademark, patent, trade secret or
other intellectual property right of any person; (iv) create a false identity or to otherwise
attempt to mislead any person as to the identity, source or origin of any communication; (v)
export, re-export or permit downloading of any message or content in violation of any export or
import law, regulation or restriction of the United States and its agencies or authorities, or
without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt
to gain unauthorized access to any computer system, server, network or account for which You do
not have authorization to access or at a level exceeding Your authorization; (vii) disseminate
or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or
program; (viii) engage in any other activity deemed by BrokerBin to be in conflict with the
spirit or intent of this Agreement or any BrokerBin policy; or (ix) use Your server as an "open
relay" or similar purposes. BrokerBin reserves the right, but is not obligated to review the
content posted via the Services and to refuse or remove any such materials in its sole
discretion, without notice at any time.
4.4
All activities on your web site may be monitored, recorded, and examined by any authorized
person, including law enforcement. BrokerBin reserves the right, but is not obligated, to review
the content posted via the Services and to refuse or remove any prohibited materials in its sole
discretion without notice at any time. BrokerBin may disclose any of Your information in its
possession, including, without limitation, internet transmissions and web site activity in order
to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation
or governmental request, to protect BrokerBin or others from harm, and/or to ensure the proper
operation of the Services. BrokerBin has no obligation to notify any person, including the
Subscriber about whom information is sought, that BrokerBin has provided the information.
Any SSL certificate You purchase from BrokerBin or its affiliates to use in conjunction with the
Services provided by BrokerBin, is intended for its specific use as described in the Subscriber
Agreement and will not be exported from the server to be used with any other web hosting service. If
You are using an SSL certificate on a web site hosted by BrokerBin, BrokerBin will generate and
securely store a corresponding private key. For security reasons, at no time will BrokerBin release
Your private key, even if You request. If You wish to export Your SSL certificate for use on a non-
BrokerBin server, You will need to make a request to BrokerBin no earlier than thirty (30) days
after Your initial SSL subscription began. After Your account with BrokerBin has been canceled, Your
SSL certificate will become invalid.
At all times, You shall bear full risk of loss and damage to Your web site and all of Your web site
content. You are entirely responsible for maintaining the confidentiality of Your password and
account information. You agree You are solely responsible for all acts, omissions and use under and
charges incurred with Your account or password or in connection with the Site or any of Your web
site content displayed, linked, transmitted through or stored on the Server. You shall be solely
responsible for undertaking measures to: (i) prevent any loss or damage to Your web site content;
(ii) maintain independent archival and backup copies of Your web site content; (iii) ensure the
security, confidentiality and integrity of all your web site content transmitted through or stored
on BrokerBin servers; and (iv) ensure the confidentiality of Your password. BrokerBin's shared
hosting servers are not an archive and BrokerBin shall have no liability to You or any other person
for loss, damage or destruction of any of Your content. You acknowledge and agree that BrokerBin has
the right to carry out a forensics examination in the event of a compromise to Your server or
account.
You agree to the initial term of service ("Term") selected by you
during the registration process or at the time of purchasing web site design or development services
from BrokerBin. Upon the expiration of Your initial Term, Your hosting service shall automatically
renew for the same period of time not to exceed one year and Your payment method shall be charged
for the renewal term on the renewal date. You acknowledge and agree that in the event You do not
desire to automatically renew Your hosting services for the same period of time, it is Your
responsibility and obligation to access Your account manager and manually turn off the default
renewal and Your failure to access Your account manager and manually select to renew on a
month-to-month basis shall be deemed acceptance of the renewal term.
Your failure to remit payment to BrokerBin by the invoice due date is cause for removal of Your web
site files from the BrokerBin hosting server. You agree that BrokerBin shall not be held liable for
such removal or disconnection. BrokerBin may charge a reinstatement fee if Your account is
reinstated after such removal or disconnection.
As detailed above, cancellation by You must be in writing with 30 days notice. Setup charges are not
refundable under any circumstances, and You are not be entitled to any refund of any monies under
any circumstances should this agreement be terminated before the end of the term of service.
BrokerBin shall not be liable for any taxes or other fees to be paid in accordance with or related
to purchases made from Your or BrokerBin's server. You agree to take full responsibility for all
taxes and fees of any nature associated with such products sold.
You warrant that You have the right to use any applicable trademarks or copyrighted material used in
connection with this service.
If You install (or ask BrokerBin to install) any third-party software, the following terms shall
apply. You represent and warrant You have the right to use and install the third-party software, and
have paid the applicable licensing fees for the third party software, and the third-party software
does not and shall not infringe on the intellectual property rights of any other person or entity.
You agree to defend, indemnify and hold harmless BrokerBin and its employees, officers and directors
for, from and against any and all claims brought against BrokerBin and its employees, officers and
directors by a third-party alleging the software infringes: (i) the third-party's rights; or (ii) a
U.S. patent, trademark, copyright or other intellectual property right. You agree that in such an
event You shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a
court awards and settlements incurred by BrokerBin in connection with any such claims.
You certify that he or she is of full legal age to enter into this agreement.
You agree to all terms in the BrokerBin
Terms of Service , Privacy Policy, the terms and conditions of any other BrokerBin user agreement, and any new,
different or additional terms, conditions or policies that BrokerBin may establish from time to
time, all of which are either now available or will be posted when established from time to on
BrokerBin's web site (collectively, the "Policies"). While BrokerBin
will endeavor to provide you with reasonable advance notice of changes to the Agreement that
materially and adversely impact your use of the Services. BrokerBin reserves the right to change the
Policies at any time, in whole or in part, at its sole discretion, including to meet the needs of
BrokerBin's customers, changing laws and new technology. Changes to the Policies apply to You. You
may review the most current version of the Policies at BrokerBin's web site. Posting of such changed
Usage Policy on its Web site shall constitute notice of such changes to You, although BrokerBin may
choose additional types of notice. Your continued use of the Services following notice constitutes
your acceptance of all changes. If you do not agree to any such changes, your sole and exclusive
remedy is to cancel your account.
This Agreement may be terminated by either party, without cause, by giving the other party 45 days
written notice. Written notice may be by postal, email or fax transmission. BrokerBin reserves the
right to verify all cancellations before terminating service. Notwithstanding the above, BrokerBin
may terminate service under this Agreement at any time, without penalty, if the You fail to comply
with any of the terms of this Agreement. Termination for any violation of the BrokerBin Policies and
Terms of Service Agreement shall be immediate. BrokerBin may, at its option, cancel or suspend
service immediately should it believe You have violated or is about to violate BrokerBin Policies or
should the You fail to remit payment to BrokerBin by the Your invoice due date. Written notice of
cancellation may be by postal mail, email or fax transmission.
15.1
If this Agreement or Your use of the Services is terminated, or when the Term expires, moving
Your web site and web site content off of the BrokerBin's hosting servers is Your
responsibility. BrokerBin will not transfer, FTP or manage transfer of Your web site or Your web
site content to another provider. If Your use of the Services is terminated prior to its term,
it is Your responsibility to update and maintain the DNS information (including contact
information) with the registrar and point Your domain name to the proper server, and You release
BrokerBin for any losses suffered by You with respect to transitioning your domain name and web
site.
In the event of "force majeure" (as defined below), BrokerBin may terminate this Agreement without
liability to you. For purposes of the Agreement, "force majeure"
means circumstances or occurrences beyond BrokerBin's reasonable control, whether or not foreseeable
at the time of entering into the Agreement, in consequence of which BrokerBin cannot reasonably be
required to perform its obligations hereunder or otherwise perform its obligations under the
Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war,
civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or
similar acts, embargoes, termination or temporary unavailability of any computer hardware or
software, server, or network on which the 1&1 Services are located or maintained or through which
the Services are provided, and non-availability of any permits, licenses and/or authorizations
required by governmental authority. BrokerBin reserves the right at any time and from time to time
to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or
without notice. You agree that BrokerBin shall not be liable to you or to any third party for any
modification, suspension or discontinuance of the Services.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise
transferred in whole or in part by You without BrokerBin's prior written consent. In particular, You
may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement
shall be binding upon Your successors and assigns, if any. BrokerBin may assign or license any or
all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
Without affecting the "No Warranty; As Is" provision contained in the
Terms of Service , YOU ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED "AS IS, AS AVAILABLE" WITHOUT ANY
WARRANTY OF ANY KIND. BROKERBIN HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE
QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY
OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE,
OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY
BROKERBIN OR BROKERBIN'S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, CUSTOMER SUPPORT
REPRESENTATIVES, SHALL CREATE A WARRANTY. BROKERBIN DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS,
IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND
NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. BROKERBIN DOES NOT GUARANTEE
THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. BROKERBIN DOES
NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH
THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY
SERVICE OR BROKERBIN IN PARTICULAR. BROKERBIN WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE
SUFFERED BY YOU, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE
INTERRUPTIONS BY ANY CAUSE OR YOUR ERRORS OR OMISSIONS. USE OF ANY INFORMATION OBTAINED BY WAY OF
BROKERBIN IS AT YOUR OWN RISK, AND BROKERBIN SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY
OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. CONNECTION SPEED REPRESENTS THE SPEED OF AN
END-TO-END CONNECTION. BROKERBIN DOES NOT REPRESENT GUARANTEES OF SPEED OR AVAILABILITY OF
END-TO-END CONNECTIONS. BROKERBIN EXPRESSLY LIMITS ITS DAMAGES TO YOU FOR ANY NON-ACCESSIBILITY TIME
OR OTHER DOWN TIME TO THE PRO-RATA MONTHLY CHARGE DURING THE SYSTEM UNAVAILABILITY. BROKERBIN
SPECIFICALLY DENIES ANY RESPONSIBILITIES FOR ANY DAMAGES ARISING AS A CONSEQUENCE OF SUCH
UNAVAILABILITY.
Without affecting the limitation of liability contained in the
Terms of Service , YOU EXPRESSLY AGREE THAT USE OF SERVICES IS AT YOUR SOLE RISK. NEITHER BROKERBIN, ITS EMPLOYEES,
AFFILIATES, AGENTS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE
INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICE OR
MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING
NEGLIGENCE, SHALL BROKERBIN, ITS OFFICES, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR
DISTRIBUTING THE SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION,
LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR
OPPORTUNITY) OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS,
DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED
TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BROKERBIN'S
RECORDS, PROGRAMS OR SERVICES, REGARDLESS OF WHETHER BROKERBIN HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT ON
BROKERBIN'S SERVERS PROVIDED THROUGH THE SERVICES. NOTWITHSTANDING THE ABOVE, YOUR EXCLUSIVE
REMEDIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT, TORT INCLUDING
NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED TERMINATION OF THIS AGREEMENT PLUS THE AGGREGATE DOLLAR
AMOUNT WHICH YOU PAID DURING THE LAST YEAR OF THE TERM OF THIS AGREEMENT. NO ACTION, REGARDLESS OF
FORM, ARISING OUT OF THESE RULES OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU OR BROKERBIN MORE THAN
ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED. SOME JURISDICTIONS DO
NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH
JURISDICTIONS, BROKERBIN'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, save and hold BrokerBin harmless from any and all demands,
liabilities, losses, costs and claims, including reasonable attorneys' fees asserted against
BrokerBin, its agents, its customers, servants, officers and employees, that may arise or result
from any service provided or performed or agreed to be performed or any product sold by You, its
agents, employees or assigns. You agrees to defend (using counsel reasonably acceptable to
BrokerBin), indemnify and hold harmless BrokerBin against any and all claims, losses, damages,
liabilities and costs (including, without limitation, reasonable attorneys' fees and court costs)
arising out of any of the following:
20.1
Your violation of this Agreement or the Policies;
20.2
The use by You or any third party of BrokerBin's web site, servers, co-location facilities and
Services, except to the extent the foregoing directly result from BrokerBin's own negligence;
20.3
Any use or alleged use of Your accounts or Your login/password by any person, whether or not
authorized by You;
20.4
the content, the quality, or the performance of content that You include on your hosted web
site;
20.1
Your violation of the rights of any other person or entity.
20.6
Any injury to person or property caused by any products sold or otherwise distributed in
connection with BrokerBin's Server service;
20.7
Any material supplied by You infringing or allegedly infringing on the proprietary rights of a
third party;
20.8
Copyright infringement; and
20.9
Any defective product which You sold on the Server offered by, or web site hosted by, BrokerBin.
You may not enter into any settlement that adversely affects BrokerBin without BrokerBin's prior
written approval. BrokerBin reserves the right, at BrokerBin's expense, to assume the exclusive
defense and control of any matter for which You are required to indemnify BrokerBin, and You
agree to cooperate with BrokerBin's defense of these claims. The provisions of this Section 20
(Indemnification) survive termination or expiration of this Agreement.
21.1
Any domain name registered by BrokerBin on Your behalf is Your property after You have paid
BrokerBin any registration fees that BrokerBin has incurred on Your behalf. BrokerBin claims no
ownership over Your domain names that the You have paid to register. At its option, BrokerBin
will either arrange for any billing for names registered by BrokerBin on Your behalf to be sent
directly by the registrar or agent thereof to You, or BrokerBin will directly bill You for these
registration fees plus applicable expenses, and/or service charges, if any.
21.2
You agree that BrokerBin may be presented with information Your domain name possibly violates
the trademark rights or other intellectual property rights of a trademark or other intellectual
property rights owner. In case of such action, You agree to the following:
(a)
You agree to hold BrokerBin harmless of any action taken by such owner regardless of the
outcome of such dispute and regardless of whether Domain Name Service hosting for Your
domain is hosted at or continued to be hosted at BrokerBin.
(b)
You agree that BrokerBin has the right to discontinue name service in the event of such
dispute over a Your domain name.
(c)
You agree that should BrokerBin discontinue name service for Your domain upon notification
of such dispute that that BrokerBin will not be liable for any loss of business,
interruption of business, loss of Your domain name, or any indirect, special, incidental, or
consequential damages of any kind (including lost profits) regardless of the form of action
whether in contract, tort (including negligence), or otherwise, even if BrokerBin has been
advised of the possibility of such damages.
(d)
In no event shall BrokerBin's maximum liability exceed one hundred ($100.00) dollars.
21.3 Technical Contact; Administrative or Billing Contact.
You agree that a BrokerBin contact person shall be named as the "technical or zone contact" for
any domains hosted at BrokerBin. You agree that BrokerBin may create and use network resources
with the Your domain name for administrative, testing, and network infrastructure enhancement
purposes. BrokerBin may also be named as the administrative and/or billing contact as needed to
perform its duties under this Agreement or any contract between You and BrokerBin for web site
design, development or support services.
This Agreement and BrokerBin Policies constitute the entire understanding of the parties. Any
changes or modifications to this Agreement are automatically agreed to by the parties upon any
change or renewal of the Term or Services.
This Agreement shall be governed and construed in accordance with the laws of the State of
Minnesota. You and BrokerBin are bound by the arbitration requirement contained in the
Terms of Service . Any action arising out of any such arbitration, out of this Agreement or the Policies must be
brought in either the Minnesota District Court for Olmsted County, Minnesota or the United States
District Court for the District of Minnesota. You consent to personal jurisdiction and venue in such
courts and you waive any challenge to personal jurisdiction or venue in such courts. You further
agree that BrokerBin shall be entitled to collect its attorneys' fees, costs and other expenses in
the event that BrokerBin acts to enforce this venue selection clause, regardless of whether
BrokerBin prevails in the underlying action.
YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A
TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND BROKERBIN THAT IS IN ANY WAY RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is
intended or created by this Agreement.
No waiver of this Agreement, or any part hereof, will be binding unless made in writing and signed
by the party claimed to have made such waiver. No waiver of any breach or condition of this
Agreement will be deemed to be a waiver of any other conditions or subsequent breach whether of like
or different nature. The failure of either party to enforce any provision of this Agreement will not
constitute a waiver of the party's rights to enforce subsequently the provision. This Agreement
together with the rules and policies of BrokerBin constitute the entire agreement between the
parties with respect to the subject matter hereof and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral, regarding such subject matter. If any
provision of this Agreement is, becomes, or is deemed invalid, illegal, or unenforceable in any
jurisdiction, (a) such provision will be deemed amended to conform to applicable laws of such
jurisdiction so as to be valid and enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, it will be stricken; (b) the validity, legality,
and enforceability of such provision will not in any way be affected or impaired thereby in any
other jurisdiction; and (c) the remainder of this Agreement will remain in full force and effect.
Furthermore, in lieu of any invalid, illegal, or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and enforceable.
You represent and warrant that You have the legal right, power, and authority to agree to the terms
of this Agreement on behalf of Yourself and any subscriber affiliated with You. You further agree
that Your use constitutes an electronic signature as defined by the Electronic Signatures in Global
and National Commerce Act ("E-Sign") and the Uniform Electronic
Transactions Act ("UETA") and that You have formed, executed, entered
into, accepted the terms of, and otherwise authenticated this Agreement and acknowledged and agreed
that this Agreement is an electronic record for purposes of E-Sign, UETA, and the Uniform Computer
Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and
is binding on, and non-refutable by You and any subscribing Member affiliated with You. You consent
to the use of (a) electronic means to provide You with any notices given pursuant to this Agreement
and (b) electronic records to store information related to this Agreement and Your use of the Site
and Services.
IF YOU DO NOT AGREE TO THE POLICIES, YOU MUST DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR
USE OF THE SERVICES, AND, IF YOU ARE ALREADY A CUSTOMER, CANCEL YOUR ACCOUNT.
Changes to the Agreement and the Policies Apply to You as provided above. You may review the most
current version of this Agreement and the Policies at BrokerBin's web site. If you do not agree to
any such changes, your sole and exclusive remedy is to cancel your account as described above.
This is BrokerBin Usage Policy, which supplements the service agreement of each user of BrokerBin's
services (each, a "Subscriber"). Every Subscriber is subject to this
Usage Policy, and by virtue of using BrokerBin's services, network, and/or systems (collectively the
"Services") agrees to be bound by this Usage Policy. BrokerBin will
revise this Usage Policy from time to time. A Subscriber's use of the Services after revisions to
the Usage Policy are posted on BrokerBin's web site will constitute such person's acceptance of any
changes or additions to the Usage Policy.
Subscribers may only use the Services for lawful purposes.
Subscribers violate this Usage Policy when they (or their affiliates or customers) engage in the
following prohibited activities.
Any violation of any person's intellectual property rights, rights of privacy, rights of
publicity or other personal rights is prohibited. BrokerBin is required by law to remove or
block access to content appearing on or through the Services upon receipt of proper notice of
copyright infringement (see "Copyright Infringement Notice Information" below).
Spamming, whether or not it overloads the Services or disrupts service to BrokerBin's
Subscribers, is prohibited. The term "spamming" includes, but is not limited to, the sending of
unsolicited bulk and/or commercial message over the Internet or maintaining an open SMTP policy.
BrokerBin reserves the right to determine, in its sole and absolute discretion, whether e-mail
recipients were from an opt-in email list.
Forging, misrepresenting, omitting, or deleting message headers, return mailing information
and/or Internet protocol addresses to conceal or misidentify the origin of a message is
prohibited.
Use of the Services for creating or sending Internet viruses, worms or Trojan horses, or for
pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is
also prohibited for any Subscriber to engage in other activity that is intended to disrupt or
interfere with, or that results in the disruption of or interference with, the ability of others
to effectively use the Services (or any connected network, system, service or equipment) or
conduct their business over the Internet.
"Hacking" and related activities is prohibited. "Hacking" includes, but is not limited to, the
following activities: illegally or without authorization, accessing computers, accounts or
networks, penetrating or attempting to penetrate security measures, port scans, stealth scans,
and other activities designed to assist in hacking.
We do not allow the use of anonymous proxy scripts on our servers. They can be very abusive to
the server resources, affecting all users on that server.
The exportation of encryption software outside of the United States and/or violations of United
States law relating to the exportation of software are prohibited.
The use of the Services to store, post, display, transmit, advertise or otherwise make available
child pornography is prohibited. BrokerBin is required by law, and will, notify law enforcement
agencies when it becomes aware of the presence of child pornography on, or being transmitted
through, the Services.
Transmission of any material in violation of any Federal, State or local regulation is
prohibited. The use of the Services to engage in any activities that are determined by
BrokerBin, in its sole and absolute discretion, to be illegal is prohibited. Such illegal
activities include, but are not limited to, storing, posting, displaying, transmitting or
otherwise making available Ponzi or pyramid schemes, fraudulently charging credit cards or
displaying credit card information of third parties without their consent, and failure to comply
with applicable on-line privacy laws. BrokerBin will cooperate fully with appropriate law
enforcement agencies in connection with any and all illegal activities occurring on or through
the Services.
Use of the Services to store, post, transmit, display or otherwise make available obscene,
defamatory, harassing, abusive or threatening language is prohibited.
BrokerBin Web Hosting intends to offer services to host web sites, not store data. Using an
account as an online storage space for archiving electronic files is prohibited.
Subscriber shall comply with all applicable laws and its published privacy policies with regard
to private or confidential information and cookies used on its web site.
Engaging in any activity that, in BrokerBin's sole and absolute discretion, disrupts, interferes
with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services,
BrokerBin's business, operations, reputation, goodwill, customers and/or customer relations, or
the ability of BrokerBin's customers to effectively use the Services is prohibited. Such
prohibited activities include making available any program, product or service that is designed
to or could be used to violate this Usage Policy. In addition, a Subscriber's failure to
cooperate with BrokerBin in correcting or preventing violations of this Usage Policy by, or that
result from the activity of, a customer of a Subscriber is a violation of this Usage Policy.
In general, BrokerBin does not monitor its customers' web sites or activities to determine
whether they are in compliance with this Usage Policy. However, when BrokerBin becomes aware of
any violation of this Usage Policy, its Terms of Service Agreement or the terms and conditions
of any other BrokerBin user agreement, BrokerBin may take any action to stop or correct such
violation, including, but not limited to, shutting down a web site, denying access to the
Services or to the Internet, and/or removing information. In addition, BrokerBin may take action
against a Subscriber or a customer of such Subscriber because of the activities of such
customer. BrokerBin reserves the right to take any such action even though such action may
affect other customers of the Subscriber.
BrokerBin may disclose any information in its possession, including, without limitation,
information about Subscribers, internet transmissions and web site activity in order to comply
with a court order, subpoena, summons, discovery request, warrant, statute, regulation or
governmental request, to protect BrokerBin or others from harm, and/or to ensure the proper
operation of the Services. BrokerBin has no obligation to notify any person, including the
Subscriber about whom information is sought, that BrokerBin has provided the information.
In accordance with the Digital Millennium Copyright Act, BrokerBin has adopted a policy that
provides for termination of web sites hosted by BrokerBin that are found to infringe on copyrights
of third parties, which is included in BrokerBin's Terms of Service.
IF YOU DO NOT AGREE TO THIS USAGE POLICY, YOU MUST DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE
YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A SUBSCRIBER, CANCEL YOUR ACCOUNT.
You may review the most current version of the Usage Policy at our Web site. BrokerBin may change
the Usage Policy, in whole or in part, at any time at BrokerBin's sole discretion. Posting of such
changed Usage Policy on its Web site shall constitute notice of such changes to you, although
BrokerBin may choose additional types of notice. BrokerBin will use reasonable efforts to provide
you with 7 days advance notice of changes to the Rules that materially and adversely impact your use
of the Services. Your continued use of the Services following notice constitutes your acceptance of
all changes. If you do not agree to any such changes, your sole and exclusive remedy is to cancel
your account as described below.
Broker Exchange Network
32 7th Ave NE
Rochester, MN 55906
Sales Questions:
Support Questions:
