TERMS AND CONDITIONS
TERMS AND CONDITIONS OF WEBSITE USE
VICCI, Inc., a Wisconsin corporation ("VICCI"), owns and operates the VICCI Car Auctions website, found at www.viccicarauctions.com and related sites (the "Site"). These Terms and Conditions of Website Use ("Terms and Conditions") govern your ("User" or "Users") use of the Site. Any use by any User of the Site, including, but not limited to, posting any vehicle for sale on the Site ("Posted Vehicle;" those Users who post any Posted Vehicle are referred to herein as "Seller" or "Sellers"), posting any information regarding any Posted Vehicle, making any offer or placing any bid for any Posted Vehicle (those Users who make any offer or place any bid on any Posted Vehicle are referred to herein as "Buyer" or "Buyers"), creating an Account on the Site, or viewing the Site, constitutes such User's acknowledgement that such User has read and understands these Terms and Conditions and such User's agreement to adhere to and be bound by these Terms and Conditions at all times such User uses the Site.
A. ALL USERS.
A.1. VICCI Intellectual Property. The Site and all of its contents other than Seller Content ("VICCI Content"), the name "VICCI," and VICCI logos, symbols, and slogans are copyrighted, trademarks, service marks, or trade dress by or of VICCI ("VICCI Intellectual Property"). VICCI Intellectual Property may not be copied, republished, or distributed without the prior written consent of VICCI.
A.2. No Warranties; Limitation of Liability; Indemnification.
A.2.1. EACH USER AGREES THAT SUCH USER'S USE OF THE SITE, VICCI CONTENT, OR SELLER CONTENT IS UNDERTAKEN AT SUCH USER'S OWN RISK. VICCI MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY: (A) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTHFULNESS, AVAILABILITY, SECURITY, ACCURACY, OR COMPLETENESS OF THE SITE, VICCI CONTENT, OR SELLER CONTENT; (B) THAT THE SITE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THAT THE SITE, VICCI CONTENT, OR SELLER CONTENT WILL MEET ANY USER'S REQUIREMENTS OR EXPECTATIONS; OR (D) THAT THE SITE OR THE SERVER(S) THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SITE, VICCI CONTENT, AND SELLER CONTENT ARE PROVIDED TO EACH USER STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. VICCI HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WITH RESPECT TO THE SITE, VICCI CONTENT, ANY SELLER CONTENT, AND ANY POSTED VEHICLE.
A.2.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VICCI SHALL NOT BE LIABLE FOR, AND EACH USER HEREBY AGREES TO HOLD VICCI HARMLESS FROM, ANY LIABILITY OR DAMAGES RESULTING FROM OR ARISING OUT OF: (A) SUCH USER'S USE OF OR INABILITY TO USE THE SITE; (B) VICCI CONTENT; (C) SELLER CONTENT OR VICCI'S USE OF SELLER CONTENT; (D) ANY POSTED VEHICLE; (E) SUCH USER'S DISPUTE OR OTHER INTERACTION WITH ANY OTHER USER, INCLUDING, BUT NOT LIMITED TO, SUCH USER'S FAILURE TO COMPLETE ANY TRANSACTION CONTEMPLATED BY USE OF THE SITE; (F) PROHIBITED CONDUCT; (G) VICCI'S LIMITATION, SUSPENSION, OR TERMINATION OF SUCH USER'S USE OF THE SITE OR REMOVAL, REFUSAL TO DISPLAY, OR RELOCATION OF ANY CONTENT FROM OR ON THE SITE; (H) DELAYS OR DISRUPTIONS WITH THE SITE; (I) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OR LINKING TO THE SITE; (J) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND WITH RESPECT TO THE SITE, VICCI CONTENT, OR SELLER CONTENT; (K) DAMAGE TO SUCH USER'S HARDWARE DEVICE RESULTING FROM USE OF THE SITE; OR (L) ANY DISCLOSURE OR TRANSMISSION OF ANY CONTENT POSTED ON THE SITE BY SUCH USER TO ANY PERSON, INCLUDING, BUT NOT LIMITED TO, AS A RESULT OF HACKING, TAMPERING, OR OTHERWISE UNLAWFUL USE OF THE SITE BY ANY PERSON OR FOR THE PURPOSE OF SATISFYING ANY STATUTE, REGULATION, ORDINANCE, OR OTHER LAW OR ANY REQUEST BY ANY LAW ENFORCEMENT AGENCY OR OTHER GOVERNMENTAL AUTHORITY. IN NO EVENT SHALL VICCI BE LIABLE TO ANY USER IN AN AMOUNT EXCEEDING (M) THE TOTAL AMOUNT PAID BY SUCH USER TO VICCI WITHIN ONE (1) YEAR PRIOR TO THE DATE ON WHICH VICCI FIRST RECEIVED NOTICE OF SUCH USER'S CLAIM OR (N) $100, WHICHEVER IS GREATER.
A.2.3. Some jurisdictions do not allow the disclaimer of warranties or waiver or limitation of damages. Accordingly, Sections A.2.1 and A.2.2, above, may not apply to particular Users.
A.2.4. Each User hereby agrees to indemnify, defend, and hold harmless VICCI for any liabilities or damages suffered by VICCI resulting from or arising out of such User's: (a) violation of these Terms and Conditions, any statute, regulation, ordinance, or other law, or any right of any person; or (b) improper use of the Site, VICCI Content, or Seller Content.
A.3. User Conduct.
A.3.1. Each User agrees to use the Site only for lawful purposes. Without limiting the foregoing, each User is prohibited from posting on or transmitting through the Site: (a) any unlawful, offensive, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, or racially, ethnically, or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable statute, regulation, ordinance, or other law; (b) any material that contains computer viruses, worms, or other harmful materials; (c) any spam or unsolicited or bulk electronic communications; or (d) any material that interferes with the operation of the Site or that imposes an unreasonable or disproportionately large load on the Site's infrastructure (collectively, "Prohibited Conduct").
A.3.2. VICCI has the right, but not the obligation, for any reason, including, but not limited to, any engagement in Prohibited Conduct by any User, any User's pattern of activity that appears to be deliberately designed to defraud consumers on the Site, any User's infringement upon the intellectual property rights of any third party, and any Seller's posting of an unreasonable, at VICCI's sole discretion, Reserve Price with respect to a Posted Vehicle, or for no reason, and without limiting other legal or equitable remedies that may be available to VICCI, to limit, suspend, or terminate any User's Account with the Site or other use of the Site or to remove, refuse to display, or relocate any content, including, but not limited to, any Posted Vehicle, any vehicle proposed to be posted for sale on the Site, and any other Seller Content, from or on the Site. VICCI has no obligation to store or preserve any such content. All content posted to the Site by any User is posted at such User's own risk. Use of the Site by a Seller constitutes a license from such Seller to VICCI to disclose or transmit any content posted on the Site by such Seller, including, but not limited to, any Posted Vehicle or other Seller Content of such Seller, to any person, for any or no reason, including, but not limited to, for the purpose of satisfying any statute, regulation, ordinance, or other law or any request by any law enforcement agency or other governmental authority.
A.4. No Use by Minors. Each User hereby represents and warrants that such User is eighteen (18) years of age or older. No individual under the age of eighteen (18) years may use the Site.
A.5. VICCI's Role.
A.5.1. VICCI IS NOT AN AUTOMOBILE BROKER OR DEALER AND DOES NOT SELL, EXCHANGE, BUY, OFFER FOR SALE, NEGOTIATE, OR ATTEMPT TO NEGOTIATE SALES OR EXCHANGES OF ANY INTEREST IN ANY POSTED VEHICLE. VICCI DOES NOT HOLD OR POSSESS TITLE TO ANY POSTED VEHICLE. THE SITE PROVIDES VEHICLE LISTINGS AND AUCTION SERVICES THAT CONNECT BUYERS WITH SELLERS. VICCI IS NOT AN AGENT OF ANY USER. OTHER THAN THESE TERMS AND CONDITIONS, VICCI IS NOT A PARTY TO ANY AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY VEHICLE PURCHASE AND SALE OR AGENCY AGREEMENT, WITH ANY USER.
A.5.2. EACH USER ACKNOWLEDGES AND AGREES THAT SUCH USER SHALL BE RESPONSIBLE FOR ANY AND ALL TAX, REGISTRATION, TRANSFER OF TITLE, INSPECTION, EMISSIONS TESTING, AND OTHER OBLIGATIONS REQUIRED BY ANY STATUTE, REGULATION, ORDINANCE, OR OTHER LAW OR GOVERNMENTAL AUTHORITY WITH RESPECT TO OWNING, SELLING, OR PURCHASING ANY POSTED VEHICLE ("OBLIGATIONS"), AND SUCH USER AGREES TO RELEASE VICCI FROM AND INDEMNIFY VICCI AGAINST ANY AND ALL SUCH OBLIGATIONS.
A.6. Accounts. Each Seller and Buyer must register with the Site by creating an account on the Site ("Account"). In so registering and creating an Account, each Seller and Buyer must provide his, her, or its name, address, telephone number, email address, credit card information, and other information required by VICCI.
A.7. Copyright Infringement Complaints. Pursuant to 17 U.S.C. § 512(c), notifications of any claimed copyright infringement of any Site content shall be provided to the following agent of VICCI:
Name: Stroud, Willink & Howard, LLC
Address: 33 East Main Street, Suite 610, Madison, WI 53703
Telephone: (608) 257-2281
A.8. USA Only. Each User must be a resident of the United States of America, and no User may use the Site from a location outside of the United States of America. Any vehicle to be purchased by any Buyer, the sale or purchase of which was contemplated by use of the Site, must be sold and purchased at a location within the United States of America. All prices set forth on the Site are in United States dollars.
A.9. Taxes, Title, and Other Fees. Each User acknowledges and agrees that any Purchase Price, offer on a Posted Vehicle posted to the Site for fixed listing ("Fixed Listing Vehicle"), VICCI's Fee, and Failed Transaction Fee are exclusive of any additional fees or other payments that may be required as a result of paying any VICCI's Fee or Failed Transaction Fee or selling or purchasing a vehicle, including, but not limited to, taxes, registration and titling fees, inspection and emissions testing charges, and any other fees required by any statute, regulation, ordinance, or other law or any governmental authority ("Additional Fees"). Such User acknowledges and agrees that such User shall be responsible for any and all Additional Fees, and such User agrees to release VICCI from and indemnify VICCI against any and all Additional Fees.
A.11. Entity Use. Each User who uses the Site on behalf of any business or other entity hereby represents and warrants that such User is authorized to act on behalf of such entity.
A.12. Complaints and Inquiries. Each User may submit complaints or inquiries to VICCI by emailing email@example.com.
B.1. Rights to Seller Content. All content any Seller uploads to the Site is referred to herein as such Seller's "Seller Content." Each Seller agrees to upload to the Site only Seller Content: (a) which such Seller owns; (b) to which such Seller otherwise controls all necessary rights; or (c) to which no party claims any right. Each Seller represents and warrants that the use of such Seller's Seller Content by VICCI or other Users will not infringe upon any intellectual property or other right of any third party. Each Seller grants to VICCI and other Users a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, publish, copy, and distribute all of such Seller's Seller Content.
B.2. Accuracy of Seller Content. Each Seller represents and warrants that the Seller Content posted by such Seller shall contain no false or misleading information.
B.3. Indemnification. Each Seller hereby agrees to indemnify, defend, and hold harmless VICCI and other Users for any liabilities or damages suffered by VICCI or any other User resulting from or arising out of such Seller's Seller Content, including, but not limited to, VICCI's or any other User's use of such Seller Content, any infringement by such Seller Content upon any third party's intellectual property or other rights, and any false or misleading information contained in such Seller Content.
B.4. No Buyer Guarantee. Although VICCI vets all Buyers and requires all Buyers to complete a registration and approval process, each Seller hereby acknowledges and agrees that VICCI does not and will not warrant, represent, or guarantee that any Buyer is capable of purchasing, financially or otherwise, any Posted Vehicle or will complete any sales transaction.
B.5. Auction, Bidding, and Fixed Listings.
B.5.1. Each Seller who posts: (a) a Posted Vehicle to the Site for auction ("Auction Vehicle"); or (b) a Fixed Listing Vehicle to the Site shall pay to VICCI $169.00 by the credit card such Seller used to establish such Seller's Account pursuant to Section A.6., above.
B.5.2. During any period that a Seller's vehicle is an Auction Vehicle, such Seller shall not advertise, list, post, or otherwise offer for sale such Auction Vehicle via any medium, including, but not limited to, any auction, dealership, or listing service, other than the Site.
B.5.3. Each Seller hereby acknowledges and agrees that all offers and bids made by any Buyer, whether or not winning bids, are non-binding, and while such offers or bids may represent the Buyer's serious expression of interest in purchasing such Seller's Posted Vehicle, they do not create a binding contract between such Seller and such Buyer.
B.5.4. With respect to all Auction Vehicles, unless any Seller wishes to post an Auction Vehicle without reserve, each Seller must include with each Auction Vehicle the minimum amount for which such Seller will sell such vehicle (a "Reserve Price"). In the event an Auction Vehicle is posted (a) without reserve and bid upon by any Buyer or (b) with a Reserve Price which is met or exceeded by a Purchase Price (collectively, a "Successful Auction"), and the Auction Vehicle's Seller fails to sell such Auction Vehicle at the price indicated by the highest bid with respect to an Auction Vehicle posted without reserve or the Purchase Price, whichever is applicable, within thirty (30) days after the date of the winning bid, VICCI shall have the right, but not the obligation, to: (a) impose on such Seller VICCI's Fee and the Failed Transaction Fee; and/or (b) refuse to allow such Seller to continue his, her, or its use of the Site.
B.5.5. With respect to all Fixed Listing Vehicles, each Seller must include with each Fixed Listing Vehicle a Reserve Price. In the event any Buyer makes an offer on any Fixed Listing Vehicle in an amount equal to or greater than the Reserve Price, and such Seller fails to sell such Fixed Listing Vehicle at the amount offered within thirty (30) days after the date of the offer, VICCI shall have the right, but not the obligation, to: (a) impose on such Seller VICCI's Fee and the Failed Transaction Fee; and/or (b) refuse to allow such Seller to continue his, her, or its use of the Site.
B.5.6. Each Seller shall contact any Winning Buyer with respect to such Seller's Auction Vehicles and any Fixed Listing Buyer with respect to such Seller's Fixed Listing Vehicles to discuss payment and shipping options within forty-eight (48) hours after VICCI declares such Winning Buyer's bid a winning bid or such Seller accepts such Fixed Listing Buyer's offer, whichever is applicable.
C.1. No Warranties Regarding Accuracy of Seller Content. VICCI VETS ALL SELLERS AND VERIFIES THE EXISTENCE OF ALL POSTED VEHICLES. HOWEVER, VICCI DOES NOT WARRANT OR GUARANTEE THE TRUTHFULNESS, SUITABILITY, ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY SELLER CONTENT, INCLUDING, BUT NOT LIMITED TO, THE ABILITY OF ANY SELLER TO SELL ANY VEHICLE. VICCI ENCOURAGES EACH BUYER TO HAVE POSTED VEHICLES INDEPENDENTLY INSPECTED. EACH BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (A) VICCI HAS NO OBLIGATION TO SCREEN OR MONITOR ANY SELLER CONTENT AND (B) IT IS SUCH BUYER'S RESPONSIBLITY TO INDEPENDENTLY EVALUATE ALL SELLER CONTENT.
C.2. Auction, Bidding, and Fixed Listings.
C.2.1. Each Buyer acknowledges and agrees that: any offer or bid made by such Buyer, whether or not a winning bid: (a) represents that such Buyer is (i) seriously interested in purchasing the vehicle on which the offer or bid was made and (ii) capable of paying the price indicated by such offer or bid, VICCI's Fee, and any and all Additional Fees associated with such offer or bid within no more than three (3) days after the date of such offer or bid; and (b) binds such Buyer with respect to VICCI's Fee, which may become due and payable as set forth in Section C.3, below.
C.2.2. In the event any Winning Buyer fails to purchase the Auction Vehicle on which such Winning Buyer placed the winning bid at the price indicated by such winning bid ("Purchase Price") within thirty (30) days after the date of such winning bid, VICCI has the right, but not the obligation, to: (a) impose on such Winning Buyer a fee that is in addition to, equal to the amount of, and payable in the same manner as VICCI's Fee as set forth in Section C.3, below ("Failed Transaction Fee"); and/or (b) refuse to allow such Winning Buyer to continue his, her, or its use of the Site.
C.2.3. In the event any Buyer who makes an offer on a Fixed Listing Vehicle that is accepted by the Fixed Listing Vehicle's Seller ("Fixed Listing Buyer") fails to purchase the Fixed Listing Vehicle on which such accepted offer was made at the price indicated by such accepted offer within thirty (30) days after the date of such offer's acceptance, VICCI has the right, but not the obligation, to: (a) impose on such Fixed Listing Buyer the Failed Transaction Fee; and/or (b) refuse to allow such Fixed Listing Buyer to continue his, her, or its use of the Site.
C.3. VICCI's Fees.
C.3.1. Each Buyer who places a winning bid on any Auction Vehicle ("Winning Buyer"), whether or not such Winning Buyer ever purchases such Auction Vehicle, and each Fixed Listing Buyer, whether or not such Fixed Listing Buyer ever purchases any Fixed Listing Vehicle, shall pay to VICCI a fee in the amount of six percent (6%) of the Purchase Price or the Fixed Listing Buyer's accepted offer, whichever is applicable ("VICCI's Fee").
C.3.2. Each Buyer acknowledges and agrees that VICCI may, at any time after such Buyer's bid on an Auction Vehicle is declared a winning bid by VICCI, or at any time after such Buyer's offer on a Fixed Listing Vehicle is accepted by the Fixed Listing Vehicle's Seller, charge VICCI's Fee against the credit card such Buyer used to establish such Buyer's Account pursuant to Section A.6, above ("VICCI's Fee Transaction").
C.4. Additional Fees. Notwithstanding Section A.9, above, VICCI has the right, but not the obligation, to impose upon any Winning Buyer or Fixed Listing Buyer a fee that is in addition to VICCI's Fee, equal to the amount of any required Additional Fees, and payable in the same manner as VICCI's Fee as set forth in Section C.3, above ("Tax Fee"). Upon VICCI's receipt of proof acceptable to VICCI at VICCI's sole discretion that such Winning Buyer or Fixed Listing Buyer has paid all Additional Fees, VICCI will return the Tax Fee, without interest, to such Winning Buyer or Fixed Listing Buyer.
C.5. Credit Card Authorization. Each Buyer agrees that such Buyer must select a bidding limit in order to create an Account. Each Buyer acknowledges and agrees that VICCI has the right, but not the obligation, to place an authorization hold in the amount of six percent (6%) of the bidding limit selected by such Buyer against the credit card such Buyer used to establish such Buyer's Account pursuant to Section A.6, above, at the time such Buyer establishes such Buyer's Account and at any time thereafter.
D.1. Headings. Headings included in these Terms and Conditions are for convenience only and are not intended to limit or expand the rights of VICCI or any User.
D.2. No Waiver. Any provision of these Terms and Conditions may be waived only by a written instrument executed by VICCI. The failure of VICCI at any time to require performance of any provision contained in these Terms and Conditions by any User shall, in no manner, affect the right of VICCI at a later date to enforce the same. No waiver by VICCI of any provision contained in these Terms and Conditions, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such or any other provision of these Terms and Conditions.
D.3. Amendment. VICCI may, in its sole discretion, amend these Terms and Conditions from time to time. Each Buyer and Seller will be notified by email at the email address listed in the Buyer's or Seller's Account, and the "Effective as of" date displayed at the bottom of this page will be updated, when VICCI amends these Terms and Conditions. If any User does not agree with these Terms and Conditions, as amended from time to time, such User shall discontinue his, her, or its use of the Site. These Terms and Conditions may not be amended except as provided in this Section D.3.
D.4. Severability. If any term or provision contained in these Terms and Conditions shall be held to be invalid, illegal, or unenforceable in any respect, in whole or in part, by a judgment, order, or decree of any court of competent jurisdiction, the validity of the remaining terms and provisions, and of the remaining part of any term or provision held to be partially invalid, illegal, or unenforceable, shall continue in full force and effect to the extent permitted by the terms of such judgment, order, or decree.
D.5. Wisconsin Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Wisconsin.
D.6. Wisconsin Jurisdiction. Any claim or dispute between VICCI and any User shall be resolved exclusively by a State or Federal court located in Dane County, Wisconsin. Each User hereby agrees to submit and consents to the personal jurisdiction of the courts located in Dane County, Wisconsin.
D.7. Assignment; VICCI's Successors and Assigns. No User may assign his, her, or its Account or rights or obligations under these Terms and Conditions. VICCI may assign its rights and obligations under these Terms and Conditions without restriction. These Terms and Conditions shall be binding upon and inure to the benefit of each User's successors and VICCI's successors and assigns.
D.8. Entire Agreement. These Terms and Conditions contain and constitute the entire agreement between VICCI and each User with regard to the Site.