Terms Of Use Agreement

BidCactus.com (the "Website") is owned and operated by BidCactus, LLC ("BidCactus" or "we"). By using any services offered on the Website (the "Services"), purchasing products on the Website (the "Products"), or accessing the Website, you agree to be bound by these Terms of Use, whether or not you open an account (an "Account"), to subscribe to particular Services or purchase Products.

To the extent applicable, these Terms of Use apply to all users of the Website ("Users"). BidCactus reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Website following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, BidCactus grants Users a personal, non-exclusive, non-transferable, limited privilege to enter and use the Website.

Additional terms and conditions may apply to the use of Services or purchase Products and to specific portions or features of the Website, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such Service or feature. If there is a conflict between these Terms of Use and the terms posted applicable to a specific portion of the Website, or for any service offered on or through the Website, the latter terms shall control with respect to your use of that portion of the Website or the specific Service.

A. Accounts

1. In order to access the auctions (the "Auctions") and certain other features of the Website, you must create an Account that is accepted by BidCactus and maintained by you in accordance with these Terms of Use and applicable law. You may never use an Account that is created by another User.

2. When creating your Account, you agree to only provide accurate and complete information.

3. Limit one account per household, unless otherwise expressly approved by Bidcactus. Only individuals may open an Account, not entities, companies, trusts, co-ops, etc.

4. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. You must notify BidCactus immediately of any breach of security or unauthorized use of your Account. Although BidCactus will not be liable for your losses caused by any unauthorized use of your Account, you may be liable for the losses of BidCactus or others relating to any such unauthorized use.

5. Either you or Bidcactus, may at any time, terminate your Account, for any reason or no reason, with or without notice. If BidCactus terminates your Account for any reason other than your violation of these Terms of Use, the Website rules and regulations, and/or your violation of law, then BidCactus shall return to you the balance of any purchased and paid Bids (each as defined below), either by e-mail, US Mail and/or courier (e.g., FedEx) to the address that we have on file for you.

6. Without limitation to Number A.5., above, if you do not use your Account to bid on an item for more than 12 months, your Account shall be considered “Inactive” and subject to termination by BidCactus. Except where prohibited by law, all bids held in an Inactive Account shall expire on the first anniversary of the last bid you placed using your Account.

7. To request an Account and/or participate in any Auction (including the placing of a bid or purchasing a Product), you must be legally capable of entering into binding contracts and be at least 18 years old.

8. BidCactus employees, independent contractors, and their immediate family members are not eligible to participate in Auctions.

9. BidCactus Products and Services are offered exclusively to Account holders and not to commercial or partly-commercial resellers.

10. Each User shall be liable for all activities that are undertaken using his or her Account.

11. BidCactus hereby grants to you permission to use the Website as set forth in these Terms of Use, provided that: (i) your use of the Website as permitted is solely for the purposes expressly agreed upon by BidCactus; (ii) you will not copy or distribute any part of the Website in any medium; (iii) you will not alter or modify any part of the Website; and (iv) you will otherwise comply with the terms and conditions of these Terms of Use.

12. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website in a manner that sends more request messages to the Website servers in a given period of time quicker than a human could reasonably produce in the same period by using a conventional on-line web browser.

13. You agree to use the Website and/or the Services only in a manner consistent with any and all applicable laws and regulations, and these Terms of Use.

14. You agree that you will not post any telephone numbers, street addresses, last names, URLs or email addresses, unless otherwise expressly permitted by BidCactus.

15. You agree not to advertise, or solicit, any User to buy or sell any products or services and not to transmit any chain letters or junk email to other Users.

16. You agree that you will not, nor will you permit others to, cover or obscure any banner or other advertisements on any BidCactus page.

17. You agree not to disclose your password to any third party or permit any third party to access your Account.

18. You may not sell, license, or otherwise transfer your Account, except by operation of law; provided, however, you may transfer to other eligible users of BidCactus (i.e., users who are at least 18 years of age and who either have a valid Account or open a valid Account) unused Bids and Packs that are returned to you pursuant to Numbers A.5. or A.6. above, and/or Bid Gift Certificates (as defined below).

19. While members in the same household are permitted to have separate accounts, if expressly authorized by BidCactus pursuant to A.3., they are not permitted to bid on the same auctions. Evidence of this activity will be deemed collusion and will result in all associated accounts being closed permanently.

20. Bids placed and items won in violation of our Terms of Use will be forfeited.

B. Purchase of Bids

1. Each bid placed by a User with an authorized and active Account in connection with an Auction ("Bids"), must be purchased and paid for by users prior to initiating such Bid. Bids are purchased only in packs comprised of a minimum quantity ("Packs") at the currently applicable price(s).

2. Payment for Packs shall be made by credit/debit card or such other payment solutions identified on the Website.

3. Neither Bids nor Packs are transferable, except by operation of law; provided, however, you may transfer to other eligible users of BidCactus (i.e., users who are at least 18 years of age and who either have a valid Account or open a valid Account) unused Bids and Packs that are returned to you pursuant to Numbers A.5. or A.6. of Accounts (above), and/or Bid Gift Certificates (as defined below).

4. If any payment by a User for Packs or Products is returned or dishonored, the User will be charged a fee equal to $20.00, which is a fair approximation off BidCactus' costs and expenses of such return. Without limitation to any other rights or remedies, BidCactus reserves the right to disable such User's Account until all obligations are paid in full.

5. Free and promotional Bids are valid until the earlier of (i) one year after credited to an Account, (ii) the termination of your Account, either by us or by you, and/or (iii) the period allocable to such free or promotional Bid.

6. Purchased Packs and Bids are valid for the duration of your Account. However, upon the termination of your Account or in the instance of Account inactivity for more than one year, then BidCactus may at any time thereafter return to you the balance of any purchased and paid Bids (each as defined below), either by e-mail, US Mail and/or courier (e.g., FedEx) to your address that we have on file for you.

7. When a Bid is placed in an Auction, the Bid is deducted from the User's Account and can no longer be used.

8. Users are prohibited from using bidding software not authorized by BidCactus, including "robots."

C. Auctions and Purchases - See "FAQ's" for more information

1. Upon a User placing a Bid in an active Auction, the price of the Product for that Auction increases by the amount specified. Each Bid constitutes an irrevocable offer by such User to purchase the Product under the terms and conditions for such Auction. Upon completion of the Auction, BidCactus will accept the winning Bid, whereupon, an agreement for purchase of such Product shall be made and be binding upon such User and BidCactus, under the terms and conditions of such Auction.

2. Unless otherwise set forth in such Auction, each new Bid resets the 'remaining time' for the Auction by the amount set for such Auction, which is in addition to an increase in the purchase price by the amount reflected in such Auction. The Auction ends when the remaining time reaches zero. The User with the last (and highest) Bid wins the Auction, at the applicable purchase price. All other Bids placed on the item expire and will not be credited back to any Account or be eligible for use. The successful Bidder is determined based upon our records and will be made in our sole discretion.

3. The successful bidder of each Auction must go to the "Winners" section to acknowledge all of the applicable Auction and purchase information, including purchase price, shipping costs, payment options, and shipping instructions. The User must select a payment option and pay the purchase price, plus shipping costs, plus applicable taxes. (Canadian residents will be charged a different shipping rate, which will include sales taxes and tariffs if applicable). If an Auction win has not been acknowledged and paid with fourteen (14) days of the Auction end-date, BidCactus reserves the right to reject the offer to purchase the Product.

4. Upon payment of the applicable purchase price, the shipping costs, and taxes, BidCactus, shall initiate the shipment of the Product to the address information supplied by the winning Bidder. Shipment will be made from our suppliers or from our warehouse. The Website has more details on shipping limitations and restrictions.

5. If BidCactus is not able to deliver the Products purchased, BidCactus shall be entitled to substitute the item with a comparable replacement product with the same or better features, or provide a refund of the purchase price (plus any shipping charges and taxes paid). For Canadian residents, refer to the auction details page for information about product availability in Canada. In the event that a product / model number is not available for shipping to Canada, an equivalent model may be substituted. Some gift cards auctioned on the site may not be redeemable in Canada.

6. Except for audio or video recordings and computer software, any Product purchased from BidCactus may be returned within seven (7) days of shipping, in original condition with all original packaging and material. The "Returns" section of the Website has proper details.

7. A system outage has occurred if no bids can be submitted for items due to an unforeseeable disruption in a system. In such instance, auctions will be temporarily halted and the remaining times for the auctions, the current bidding price and the current highest bidder will be maintained. After the disruption has been resolved, the auctions will be continued, and 10 minutes will be added to the remaining times for the auctions. Temporarily halted auctions are clearly indicated. Bids placed on a temporarily halted auction shall not be credited back on a user's account and are not eligible for a refund for bids used or other costs incurred.

8. BidCactus provides no assurance or promise for the constant and uninterrupted availability of the Website and technical systems. Without limitation to any other disclaimer set forth herein, BidCactus shall not be liable for any damage that occurs due to Bids submitted by Users not being received by Bidcactus, not being received promptly, or not being considered, as a consequence of technical faults.

9. Under no circumstances should the same credit card, PayPal account, or other form of payment be shared or used on multiple accounts. This will result in the closure of all associated accounts. Customers must maintain separate and unique forms of payment.

D. Intellectual Property

1. Copyright. If you believe that any content on the Website infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the Copyright Agent (as defined below) with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

a.a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

b.identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

c.identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

d.information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

e.a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

f.a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

g.BidCactus' designated "Copyright Agent" to receive notifications of claimed infringement is: BidCactus, LLC, 191 Post Road West, Westport, Connecticut 06880, ATTN: COPYRIGHT INFRINGEMENT DESIGNATED AGENT. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to the BidCactus customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 6, your DMCA notice may not be valid.

2. Patent. BidCactus or any of its licensors or affiliates products, technology and processes referred to or posted on the Web Site may be covered by one or more patents and/or are subject to other trade secret and/or any other proprietary rights. No transfer or grant of any rights under any such patents is made or is to be implied by any provision of these Terms of Use or by any other provision contained in the Web Site, and BidCactus and/or its licensors and/or affiliates reserves all such rights.

3. Trademarks - General. BidCactus®, as well as other names and marks so notified in the Web Site are trademarks of BidCactus, Inc. ("BidCactus Marks"). Other company or product names are the trademarks or registered trademarks of their respective holders. No transfer or grant of any rights under any names, marks or logos is made or is to be implied by any provision of these Terms of Use or by any other provision contained in the Web Site, and all rights in such names, marks or logos is reserved by BidCactus and/or respective holders.

4. Trademarks - Use of. You may use BidCactus Marks or product names to refer to BidCactus products and services, provided you follow the following guidelines whenever BidCactus Marks appear:

a.Your use of BidCactus Marks must not mislead consumers or imply as to any BidCactus sponsorship, affiliation, or endorsement of your company, or your products or services.

b.You should not use BidCactus Marks, or any other trademarks, service marks, logos, or trade names of BidCactus, or any word, symbol, or design confusingly similar thereto, as part of your (i) corporate name; or (ii) as part of the name of any of your product/service or third party's products/services; or (iii) as part of your internet address, domain name, meta tags, or any other similar designations.

c.At least upon the first occurrence of each of the BidCactus Marks, the ® symbol shall appear.

d.In any material in which the BidCactus Marks appear, a notice in the following format will be added: "BidCactus and the BidCactus logo, are trademarks of BidCactus, LLC".

e.All BidCactus Marks must incorporate the exact and consistent style, type specifications and capitalization as instructed by BidCactus, without any variations of same.

f.The BidCactus Marks shall be used as an adjective followed by the generic term for the product/service.

g.These guidelines are not a definitive statement of proper brand and trademark use. BidCactus reserves the right to oppose any uses of BidCactus Marks that BidCactus, in its sole discretion, deems unlawful or improper, even if such use is not expressly prohibited hereunder. BidCactus further reserves the right to revise these guidelines at any time, without notice.

E.Bid Gift Certificates

1. Transfer. You may only transfer "Bid Gift Certificates" (Bids or Packs) to eligible users (including yourself) who are at least 18 years old and either have a valid Account or open a valid Account.

2. Unused Bid Gift Certificates. After 12 months from date of purchase from BidCactus, any Bid Gift Certificates that are not deposited into a valid Account, will be deposited in the account of the purchaser.

3. Eligibility. Bid Gift Certificates are void where prohibited. Bid Gift Certificates may not be transferred or assigned to anyone in violation of law.

F. Miscellaneous

1. User Disputes. You are solely responsible for your interactions with other Users. BidCactus reserves the right, but has no obligation, to monitor disputes between you and other Users.

2. Eligibility. Using the Services and/or purchasing Bids, Pacts, or Products is void where prohibited. You represent and warrant that you are at least 18 years of age. Bid or Packs that are otherwise assignable hereunder, may not be transferred or assigned to anyone in violation of law.

3. Update your Address. So that we may return to you unused Bids, Packs, and/or Gift Bids as contemplated herein, you must notify us of any change in your address and e-mail, all such information of which shall be retained to us in accordance with our Privacy Policy.

4. Non-Returnable Bids or Packs. If we are unable to return to you any Bids, Packs, or Gift Bids as contemplated herein (including because you change your address or e-mail and do not notify us of such change), then except where prohibited by law, such non-returnable bids will expire one year following our attempted return.

5. Registration. You may be required to open an Account in order to access some or all of the Services. To do so, you will be required to create a username and password, to agree to these terms and conditions and to provide your email address. You may be required to provide additional information and complete additional registration steps.

6. Non Commercial Use by Users. The Services are for your personal use and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by BidCactus. Illegal and/or unauthorized use of the Services, including collecting usernames and/or email addresses of Users by electronic or other means or unauthorized framing of or linking to the Services are prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed without notice and may result in termination of Account privileges, which is without limitation to any other legal action that may be taken by BidCactus.

7. Disclaimers. BidCactus is not responsible for any incorrect or inaccurate content posted on the Website or in connection with any of the Services provided, whether caused by Users or by any of the equipment or programming associated with or utilized in any of the Services. BidCactus is not responsible for the conduct, whether online or offline, of any User. BidCactus assumes no responsibility 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, any of the Services or Products. BidCactus is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or User due to technical problems or traffic congestion on the Internet or at any of the Services or combination thereof, including any injury or damage to users and/or Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Website and/or in connection with the Services or Products. Under no circumstances shall BidCactus be responsible for any loss or damage, including personal injury or death, resulting from use of the Website or the Services or from any content posted on the Website or transmitted to Users, or any interactions between Users, whether online or offline. THE WEBSITE AND THE SERVICES ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND BidCactus EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. BidCactus DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEBSITE, THE BIDS, AND/OR THE SERVICES.

8. Limitation on Liability. IN NO EVENT SHALL BidCactus OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR UNDER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE WEBSITE AND ANY OF THE SERVICES, EVEN IF BidCactus HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BidCactus' LIABILITY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO AMOUNT ACTUALLY PAID, IF ANY, BY YOU TO BidCactus FOR THE SERVICES DURING THE TERM OF YOUR ACCOUNT.

9. U.S. Export Controls. Software from the Website (the "Software") may be subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

10. Dispute Resolution. All claims, disputes and causes of action arising out of, or related to your use of the Website or your interactions with Bidcactus, shall be resolved pursuant to this Dispute Resolution provision. This provision may only be waived with a writing signed by you and an officer of Bidcactus. Prior to initiating an action against Bidcactus, you agree to negotiate individually with an authorized representative of Bidcactus, in good faith, for thirty days. You may initiate negotiations by providing notice pursuant to the Notices section of these Terms and Conditions. Upon the expiration of this thirty-day period, if no agreement has been reached, you agree to submit to binding arbitration, on an individual basis and not as the member or representative of a class. The Federal Arbitration Act shall govern the proceedings and the rules of the American Arbitration Association shall be applied. In any such arbitration, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Any court of competent jurisdiction may enforce an award of the panel. Each party shall evenly divide the administrative costs of the arbitration. Each party shall bear its own responsibility for paying its attorney fees, expert fees, and other expenses. Bidcactus shall pay the arbitration filing fee in the event that (1) the amount in controversy is less than $10,000; and (2) you submit a statement to Bidcactus that you are unable to pay the arbitration filing fee. The arbitrator is empowered to grant whatever relief would be available in court under law or in equity . To the maximum extent permitted by law, the parties agree that the arbitration award shall not include consequential or punitive damages but shall only award the aggrieved party the actual damages sustained.

11. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Delaware without regard to conflict of laws provisions, the actual state or county of execution or loss or any different state laws that may govern these Terms of Use. To the extent that both parties agree in a signed writing to waive arbitration pursuant to the previous Dispute Resolution paragraph, THE CONNECTICUT COURTS (STATE AND FEDERAL), SHALL HAVE SOLE JURISDICTION OF ANY AND ALL CONTROVERSIES ARISING OUT OF OR RELATED TO THIS AGREEMENT; ANY ACTION OR OTHER PROCEEDING WHICH INVOLVES SUCH A CONTROVERSY SHALL BE BROUGHT SOLELY IN COURTS IN CONNECTICUT AND NOT ELSEWHERE. THE PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys' fees.

12. Notices. All notices of Disputes, or otherwise required, shall be made in writing and sent via U.S. Mail, Certified Mail Return Receipt Requested or via a reputable overnight carrier, with proof of delivery to BidCactus, LLC, 191 Post Road West, Westport, Connecticut 06880, ATTN: President. Notices shall be deemed received as of the date indicated on the return receipt or delivery confirmation, as applicable.

13. Indemnity. You agree to indemnify and hold BidCactus, its subsidiaries, members, managers, affiliates, officers, agents, lawyers, accountants, licensors, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Website or any of the Services in violation of these Terms of use; arising from your breach of these Terms of Use; arising from your violation of applicable law or court order; and/or arising from your negligence.

14. Void Where Prohibited. BidCactus administers and operates the Website from its location; other BidCactus sites may be administered and operated from various locations outside the United States. Although the Website is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Website are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. BidCactus reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on BidCactus is void where prohibited. If you choose to access the Website from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

15. Privacy Policy. Please carefully read our Privacy Policy, the terms of which are hereby incorporated by this reference.

16. Other. Except for any additional written agreement(s) between you and BidCactus, these Terms of Use constitute the entire agreement between you and BidCactus regarding the use of the Website and/or any of the Services. The failure of BidCactus to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. All rights not expressly granted to you in these Terms of Use are reserved to BidCactus and/or its licensors. This Agreement is not assignable or transferable or sublicensable by you except with BidCactus' prior written consent. BidCactus may transfer, assign or delegate these Terms of Use and its rights and obligations without consent. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding these Terms of Use.