Terms of Use Agreement

for Manor Born Estate Sales Site, Solution & Services
Last Updated: September 15, 2016

Manor Born Estate Sales, Inc.  (the “Company”) and its service providers (collectively “us,” “our” or “we”) operate a service and solution that enables and supports estate sale agent members (“ES Members”) with conducting online and mobile transactions with customers for the sale and purchase of items via an estate sale (the “Solution”).  The Solution may be available through our website located at https://www.manorbornestatesales.com or via a mobile application (collectively or individually, the “Site”), with certain back-office and support services hosted and available separately.  This Terms of Use, along with the content of our then-current policies, invoices, statements and other documents as we provide or require (collectively, the “Service Agreement”), governs your access and use of the Solution, Site and our services, including each sales transaction involving ES Member and customer of estate sale items (“ES Items”) via the Solution.
PLEASE READ THESE “TERMS OF USE” CAREFULLY BEFORE ACCESSING OR USING THE SITE, THE SOLUTION OR ANY SERVICE AS MADE AVAILABLE.
This Agreement takes effect upon the earlier to occur of: (i) when you click an “I Accept” button or check box presented with these terms, or (ii)  when you access, view or otherwise use the Site or Solution (the “Effective Date“). By taking such actions, you represent and acknowledge to us that: (a) you are lawfully able to enter into contacts (e.g., you are not a minor), (b) if you are entering into this Service Agreement for an entity, such as the company you work for, you have legal authority to bind that entity, and (c) assent to these Terms of Use and all policies and other documents applicable to its subject matter as published by us. If you do not agree to these Terms of Use or other policies and document, please exit and/or uninstall the Site immediately. We reserve the right, at our discretion, to change, modify, add, or remove portions of these Terms of Use as well as out other portions of the Service Agreement at any time, with or without notice to you. Please check these Terms of Use and each policy periodically for changes as your continued access or use of this Site, the Solution or ant Service made available following the posting of changes signifies your acceptance of all such changes.

Use of the Site, Solution and Services

You may access and use the Site, Solution and Services offered in accordance with the Service Agreement. Service Level criteria may apply to certain Service offerings. You will adhere to all laws, rules, and regulations applicable to your use of the Site, Solution and Services.  To access the Solution, you must create an MBES account associated with a valid e-mail address. Unless explicitly permitted by the Service Terms, you may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Service Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement as otherwise specified in the Service Agreement.

Your Responsibilities

You are solely responsible for your content, operation and use the Site, Solution and Services, including for all access and use through your MBES Account.  This includes, without limitation: (i) compliance of all aspects of the Service Agreement and the law, (ii) timely making of all required payments, (iii) proper handling and processing of notices sent to you, and (iv) proper response to all claims made against you.  You will ensure that all persons using the Site, Solutions or Services through your  MBES Account or systems comply with your obligations under this Service Agreement and that the terms of your agreement with each such person are consistent with this Service Agreement.  You are responsible for properly configuring and using the Site, Solution and Services and taking your own steps to maintain appropriate security, protection and backup of your content, which may include the use of encryption technology to protect your content from unauthorized access and routine archiving of your content.  You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Service Agreement, your content or use of the Site, Solution and Services.

Online Purchases and Other Terms and Conditions

All purchases through our Site or Solution, as well as all other transactions for the sale of goods or information formed through the Site or Solution as a result of visits made by you are governed by these Terms of Use and our then-current Purchasing & Returns Policy which are hereby incorporated into these Terms of Use.  Additional terms and conditions may also apply to specific purchases as well as to other portions, services or features of the Site and Solution. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

Geographic Restrictions

Company’s principal place of business is, and the Site and Solution are, based in the state of Georgia in the United States. Company provides this Site and the Solution for use only by persons located in the United States. We make no claims that the Site, Solution or any of its content is accessible or appropriate outside of the United States. Access to or use of the Site and/or Solution may not be legal by certain persons or in certain countries. If you access or use the Site or Solution from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Import and Export Compliance

In connection with this Service Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Site, Solution and Services, including your transfer and processing of your content, the provision of your content to users and ES Members, and the Company region in which any of the foregoing occur.

Access and Delays

Company, its affiliates, subsidiaries, and ES Members shall have no responsibility to provide you access to the Site or Solution.  Further, Company, its affiliates, subsidiaries, and ES Members shall not be liable to you for any loss or liability resulting, directly or indirectly, from delays, inaccuracies, errors, omissions or interruptions of the Site or Solution for any reason, including, without limitation, due to electronic or mechanical equipment failures, telephone interconnect problems, defects, weather, strikes, walkouts, fire, acts of God, riots, armed conflicts, acts of war, acts of terrorism, or to other like causes.

Security, Privacy and Monitoring

Without limiting your obligations as otherwise required by the Service Agreement, we may implement reasonable and appropriate measures designed to help secure the Site and Solution against accidental or unlawful loss, access or abuse.  We may also access, use, reproduce, record, display, sell, transfer, store, perform, and modify all information and data provided us, which is done so in accordance with our Privacy Policy. You acknowledge and consent that we reserve the right to, and may, monitor for all lawful purposes any and all transaction, communications, access, use and content transmitted or received through or using the Site, Solution or any Services.

Accuracy

While Company and its ES Members may each make certain commercially reasonable efforts to present accurate and reliable information on this Site and in the Solution as is applicable to them, Company does not endorse, approve, or certify such information, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Use of such information is voluntary, at your own risk, and reliance on it should only be undertaken after an independent review. THE WEBSITE AND SOLUTION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS FOR ITSELF AND THE ES MEMBERS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARISING FROM OR RELATED TO THIS WEBSITE, THE SOLUTION, ALL DATA AND CONTENT INVOLVED WITH EITHER THE WEBSITE OR SOLUTION, AND THE PRODUCTS AND SERVICES PROVIDED. Reference in this Site or the Solution to any specific commercial product, process or service by trade name, trademark, service mark, manufacturer, supplier, or otherwise, does not constitute or imply endorsement, recommendation or favoring by Company.

Comments

Company welcomes your comments and suggestions regarding this Site or the Solution. However, all comments, ideas, notes, messages, suggestions or any other form or type of communication shall be the exclusive property of Company. Accordingly, Company may use all such communications in any manner, including reproducing, disclosing and publicizing all such communications, all without any compensation or obligation to you.

Third Party Links

The Site or Solution may contain content from and links to other websites, resources and/or advertisers (“Third Party Content”). Third Party Content is provided for your convenience only and you access and use it at your own risk. Company is not responsible for the availability, accuracy, completeness, or timeliness of these external websites, nor is it liable for the contents, advertising, products, services or other materials made available on or through such third party websites. In no event shall any reference to any Third Party Content, or to any content made available by an ES Member, be construed as an approval, guarantee or endorsement by the Company of that ES Member, third party or the content, product or service of such third party. You should direct any concerns about Third Party Content to such ES Member or third party.

No Framing

Company has carefully designed this Site and the Solution to deliver certain content to users in a particular format and with a particular appearance. No third party shall have the right to utilize the content of this Site or the Solution in any way that interferes with that purpose. In particular, Company prohibits any party from displaying the content on this Site or the Solution in any format where third party advertising or other content that Company did not authorize is viewed or viewable together with Company’s proprietary content.

Suspension

We may suspend your right, or the right of any person using through your MBES Account, to access or use any portion or all of the Site, Solution and Services immediately upon notice to you if we determine:
(a) use of the Site, Solution and Services (i) poses a security risk to the Site, Solution and Services or any other users, (ii) may adversely impact the Site, Solution and Services or the systems or content of any other users, or (iii) may subject us, our affiliates, or any third party to liability;
(b) you are, or any person using through your MBES Account is, in breach of this Service Agreement, including if you are delinquent on your payment obligations; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If we suspend your right to access or use any portion or all of the Site, Solution and Services:
(i) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any applicable fees and charges for any Site, Solution and Services to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
(c) you will not be entitled to any service credits under the Service Level commitments for any period of suspension; and
(d) we may erase or retain your content as a result of your suspension.
Our right to suspend access or use of the Site, Solution and Services is in addition to our right to terminate.

Solution and Service Term and Termination

The term of this Service Agreement will commence on the Effective Date and remains in effect for the Site each and every time that the Site is access or used.  Regarding the Solution and the Services, this Service Agreement will also commence on the Effective Date and will remain in effect until terminated by you or us as specified in the Service Agreement, which includes (without limitation) the following circumstance:
(a) Termination for Convenience. You may terminate this Service Agreement for any reason by (i) providing us notice and (ii) closing your MBES account for the Solution and all Services for which we provide an account closing mechanism. We may terminate this Service Agreement for any reason by providing you 30 days advance notice.
(b) Termination for Cause. Either party may terminate this Service Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Service Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.  Additionally, We may also terminate this Service Agreement immediately upon notice to you (i) for cause, if any act or omission by you or any user through you that results in a suspension, (ii) if our relationship with an ES Member or third party partner who provides products, services, software or other technology we use to provide the Site, Solution and Services expires, terminates or requires us to change the way we provide the product, service, software or other technology as part of the Solution or Services, (iii) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (iv) in order to comply with the law or requests of governmental entities, or (v) if we determine use of the Site, Solution and Services by you or any users through you or our provision of any of the Solution or Services to you or any users through you has become impractical or unfeasible for any legal or regulatory reason.
Upon any termination of this Service Agreement for any reason:
(A) all your rights under this Service Agreement immediately terminate;
(B) you remain responsible for all fees and charges you have incurred or that are to come due for Services, products or goods ordered through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(C) you will immediately return or, if instructed by us, destroy all MBES Content in your possession;
(D) you are not entitled to any post-termination assistance from us unless we should subsequently so agree, in writing, to do so; and
(E) Sections regarding Security, Privacy and Monitoring; Comments; Term and Termination; Proprietary Right; Confidentiality and Publicity; Exclusions and Disclaimer; Limitations; Governing Law and Jurisdiction; and General will continue to apply in accordance with their terms.

License Grant and Marks

We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Service Agreement; and (ii) copy and use our content solely in connection with your permitted use of the Services.  The Company name, the Company Logo, the term “Manor Born Estate Sales” and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Site or Solution are the trademarks of their respective owners.

Proprietary Rights

As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Site, Solution and Services. Except as provided in the License Grant section, you obtain no rights under this Service Agreement from us or our licensors to the Site, Solution and Services, including any related intellectual property rights. Some of our content may be provided to you under a separate license, in which case that license will govern your use of such content.  Neither you nor any user through you may use the Site, Solution and Services in any manner or for any purpose other than as expressly permitted by this Service Agreement. Neither you nor any user through you may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Site, Solution and Services (except to the extent software included in the Site, Solution and Services are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Site, Solution and Services or apply any other process or procedure to derive the source code of any software included in the Site, Solution and Services, or (c) access or use the Site, Solution and Services in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to you in this Service Agreement are conditional on your continued compliance this Service Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Service Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Site, Solution and Services you have used.

Confidentiality and Publicity

You will not disclose any of our confidential information during the Term or at any time during the 5 year period following the end of the Term; provided further, however, that should any of our confidential information qualify as a trade secret under applicable law, then you shall not disclose such confidential information for as long as such information is entitled to characterized as a trade secret.. You will not issue any press release or make any other public communication with respect to this Service Agreement or your use of the Site, Solution and Services without our prior, written consent. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Service Agreement.

Exclusions and Disclaimer

You acknowledge that we cannot and do not guarantee or warrant that files or content available for access or download from the Internet, Site or Solution will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, SOLUTION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SOLUTION OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THEM, OR ON ANY WEBSITE LINKED TO THEM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY, THE NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, CONTRACTORS, SUPPLIERS, SUCCESSORS OR ASSIGNS SHALL BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE THAT RESULTS FROM YOUR USE OF, OR INABILITY TO USE, THIS WEBSITE, THE SOLUTION OR ITS CONTENTS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, SO PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Limitations

IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FROM ALL DAMAGES, LOSSES AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS WEBSITE OR THE SOLUTION, WHETHER IN TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LESSER OF $5 AND THE MAXIMUM AMOUNT (IF ANY) IN YOUR ACCOUNT AT THE TIME THE CLAIM ARISES.  ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE OR SOLUTION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Governing Law and Jurisdiction

All matters relating to the Site, Solution and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction).  Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Site, the Solution, or a particular sale shall be instituted exclusively in the federal courts of the United States located in the Northern District of Georgia, Atlanta Division or the courts of the State of Georgia located in Fulton County, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Notice

All communications and notices to be made or given pursuant to this Service Agreement must be in the English language.  We may provide any notice to you under this Service Agreement by: (i) posting a notice on the Site or Solution; (ii) sending a message to the email address then associated with your account; or (iii) otherwise contacting you. Notices we provide by posting on the Site or Solution will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. To give us notice under this Service Agreement, you must contact the Company as follows: (i) by facsimile transmission to (470) 485-1070; (ii) by email to support@manorbornestatesales.com or (iii) by personal delivery, overnight courier or registered or certified mail to Manor Born Estate Sales LLC, 3185 Kingshouse Commons, Alpharetta, Georgia 30022, USA. We may update the facsimile number, email address or mailing address for notices to us by posting a notice on the Site or Solution. Notices to us provided by personal delivery will be effective immediately. Notices to us provided by email, facsimile transmission or overnight courier will be effective one business day after they are sent. Notices to us provided registered or certified mail will be effective three business days after they are sent.

General

The Terms of Use and our applicable Privacy Policy, Purchasing & Returns Policy, Order Invoice constitute the sole and entire agreement between you and the Company with respect to the Site, Solution and all sales and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site, Solution or a Sale.  You will not assign this Service Agreement, or delegate or sublicense any of your rights under this Service Agreement, without our prior written consent. Subject to the foregoing, this Service Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.  No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.  If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

U.S. Government Rights.

The Site, Solution and Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Site, Solution and Services. If you are using the Site, Solution and Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Site, Solution and Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

DMCA Infringement Allegations

Company respects the intellectual property of others. It is Company’s intent to respond to claims of copyright and other intellectual property infringement and/or to process and investigate notices of alleged infringement and then take appropriate actions (if any) as may be required of it under the Digital Millennium Copyright Act (“DMCA”). Upon receipt of notices complying with the DMCA, Company may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. Company may terminate access for users who are infringers.
To provide Company notice of an infringement, you must provide a written communication to the attention of “Trust and Site Security” care of support@manorbornestatesales.com that sets forth the information specified by the DMCA (http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.  If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.