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Terms and Conditions
Effective: May 21, 2008
1.1 Introduction; Acceptance. BioArts International Ltd., a Delaware corporation having a principal place of
business located at 38 Miller Avenue, Suite 12, Mill Valley, California 94941 (herein referred to as the “BioArts,” “we,”
“us” or “our”) provides and makes available this online auction web site hosted by ProxiBid and located at
http://www.proxibid.com/bioarts or any subsequent URL used by us (the “Web Site”) which allows users to bid for
certain animal cloning services as further described on the Web Site (the “Auctioned Services”) pursuant to Auctions
(as defined below) that are conducted by McCormack Auction Company (the “Auctioneer”) on behalf of BioArts. All
use of the Web Site is subject to the terms and conditions contained in these Terms and Conditions and the Privacy
Policy (collectively, this “Agreement”). Please read this Agreement carefully. By participating or continuing to
participate in any Auction or accessing, browsing or otherwise using the Web Site, you acknowledge that you have
read, understood, and agree to be bound by this Agreement. We recommend that you print this Agreement and keep
copies for your records. If you do not accept the terms and conditions of this Agreement, you shall not participate or
continue to participate in any Auction or access, browse, or otherwise use the Web Site. References to “you” mean
the person participating or continuing to participate in any Auction or accessing, browsing, or otherwise using this Web
Site and/or the entity such person represents during the course of employment or engagement by that entity. For the
avoidance of doubt, notwithstanding anything on the Web Site or other materials related to the Web Site to the
contrary, you hereby acknowledge that the Auctions are conducted by the Auctioneer (on behalf of BioArts).
1.2 Changes. You understand and agree that we may change this Agreement at any time without prior notice.
You may read a current, effective copy of this Agreement at any time by selecting the “Terms and Conditions” link on
the Web Site. The revised terms and conditions will become effective when we send notification to you of such revised
terms and conditions. Any use of the Web Site after such date shall constitute your acceptance of such revised terms
and conditions. If any change to this Agreement is not acceptable to you, your sole remedy is to cease participating in any Auction or accessing, browsing or otherwise using the Web Site.
2.1 Definitions. The following terms shall have the following meanings:
(a) "Auction(s)" means the content, features and functionality provided via this Web Site to facilitate the
online auction operated by the Auctioneer through which BioArts offers to sell and you bid to buy the Auctioned
Services.
(b) “Buyer’s Premium” means a NON-REFUNDABLE and NON-CREDITABLE ten percent (10%) of the
winning bid price of each Auctioned Service purchased, which winning bidders are required and agree to pay in
addition to payment of the winning bid price.
(c) “Qualification Requirements” means the conditions that you must meet before registering for or
participating in any Auction, including without limitation that you must (i) be aged 21 years or over and be legally
capable of forming binding contracts and incurring binding contractual obligations, (ii) own a live dog from which your
veterinarian can obtain a viable tissue sample, or have gene-banked viable tissue of a live or deceased dog, in each
case that you would like to clone, and (iii) have available cash or a credit line, or other liquid assets, of at least
US$250,000. The Qualification Requirements are available at http://BestFriendsAgain.com/Auction and are subject to
change at our discretion.
2.2 Registration. Subject to the terms hereof, you can browse the Web Site at any time without registering;
however, to participate in any of the Auctions, you must meet the Qualification Requirements and register by
completing the online "Create Bidder Account" form (the “Registration Form”) on the http://www.proxibid.com/bioarts
Web Site and you must agree to both ProxiBid’s terms and conditions and these Terms and Conditions during
registration. Please note that registering one time will grant you access to participate in any of the five (5) initial dog
cloning Auctions that are conducted on the Web Site. If you do not want to provide any information requested in the Registration Form, you shall not register for or participate in any Auction. By registering, you represent and warrant
that all information you provide on the Registration Form is true, accurate and complete, that you will immediately
update any such information to make it true, accurate and complete (by using the "Personal Profile" tab in your “Bidder
Account”), and if you are registering on behalf of an entity, you further represent and warrant that you have the right,
power and authority to bind such entity to this Agreement. You will provide any evidence requested by us to verify any
information you provide to us or any of the foregoing representations and warranties. We reserve the right in our sole discretion to refuse any application to register for or participate in the Auction.
2.3 Username and Password. Upon registering, you will be asked to create a unique username and password.
You shall hold and secure your username and password as strictly confidential, and you shall not allow any other
person or entity access to or use of such username and password. You should not share, display, disclose or permit
your username or password to be disclosed to any other party. You are responsible for participation in the Auction and
any other activity on the Web Site when access is obtained through the use of your username and password, whether
authorized or unauthorized. You agree not to impersonate any other person or entity or use any false name or use
any other person's user name and password to access any Auction. If you believe that your username and/or
password has become known to another person or you are aware of any other breach of security regarding the
Auction or Web Site, then you shall notify us immediately in accordance with Section 9. You shall ensure that you
properly exit the Web Site at the completion of your session.
2.4 Bidding. You can only make a bid for Auctioned Services and otherwise participate in any Auction if you are
registered in accordance with Section 2.2. You shall comply with any instructions or notifications posted on the Web
Site from time to time in relation to bidding in any Auction. All Auctions will be conducted in U.S. Dollars ("$"). You are
responsible for ensuring that you have sufficient funds to cover the cost of all of your bids and the Buyer’s Premium
and to make payment in accordance with the applicable payment method. Any bid for Auctioned Services that you
make via this Web Site constitutes a legal offer to buy the Auctioned Service from BioArts. You shall have no right to
retract a bid except to the extent BioArts is required to allow you to retract such bid under applicable law. We shall
have the right to set applicable minimum bids or reserve requirements and are entitled to change such minimum bids
and reserve requirements at any time before or during the Auction period. If an Auction subject to a reserve ends and
the reserve price is not met, you and BioArts are released from any obligation to purchase and sell, respectively, the
Auctioned Service. Any bid you make will remain open for the time period specified on the Web Site. To help prevent
“sniping” (i.e., bidding at the last second of an Auction), this Web Site supports extended bidding on timed Auctions,
which means that if a bid is placed during the final five minutes of an Auction, the Auction is automatically extended for five more minutes, and so on. The winning bid in any Auction will be the highest bid to be registered by us at the end of each Auction that exceeds the reserve price (if any) and meets the conditions that are specific to that Auction.
Should a tie or a dispute arise between two bidders, we or the Auctioneer may, at our discretion, re-open the bidding
until the Auctioned Service is sold. The record of the Auction made by us and/or the Auctioneer shall be conclusive.
2.5 Winning Bids; Client Agreement. By bidding for an Auctioned Service you agree (i) to be bound by any
conditions of sale included in the Auctioned Service’s description on the Web Site and (ii) that, if you have placed the highest bid which is (where applicable) at or above any reserve price and we have confirmed acceptance of your bid,
you have entered into a legally binding contract to buy the Auctioned Service from us. If you are the winning bidder,
we will contact you immediately after the Auction to confirm acceptance of your bid and the amount of the winning bid.
We will also send you (a) details related to the performance of the Auctioned Services, (b) the client service agreement
for the Auctioned Services (the “Client Agreement”), which you shall sign and return to us within three (3) business
days of receipt, and (c) an invoice sent by ProxiBid for the full amount of the winning bid, plus the Buyer’s Premium, by
postal mail, which you shall pay by money order, certified cashier check or wire transfer within three (3) business days
of receipt. You also agree to provide us with the following: (i) bank wire instructions information if you are paying by
wire transfer; (ii) information about the animal for which the service would be performed, including name, species,
breed, health, and gender; information about the animal owner including name, address, phone number, and email
address; and information about the animal’s veterinarian, including such veterinarian’s name, clinic name, address,
and phone and fax numbers.
2.6 If we are unable to contact you within 48 hours of the conclusion of the Auction or at any time we believe there
is or may be a problem with your payment for any Auctioned Service, then we will be entitled in our discretion to offer
the Auctioned Service to the next highest bidder or to conduct another Auction for such Auctioned Service.
Notwithstanding the foregoing, the execution of the Client Agreement and payment of such invoice are express
conditions that you must fulfill prior to BioArts being obligated to provide the Auctioned Service to you. If you are a
winning bidder, you shall be responsible for all taxes (including sales tax) applicable to your purchase of the Auctioned Services, and you shall indemnify and hold us harmless against any claim arising from your failure to pay such taxes.
3.1 Content; Trademarks. This Web Site contains material, including but not limited to software, text, graphics and
images (collectively referred to as the “Content”) owned or licensed by us. The Content is protected by intellectual
property laws. You have no rights in or to the Content, and you will not use, copy or display the Content except as
permitted under this Agreement. Without limiting the foregoing, you must retain all copyright and other proprietary
notices contained in the original Content on any copy you make of the Content. The use or posting of any of the
Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you
violate any part of this Agreement, your right to access and/or use the Content and Web Site shall automatically
terminate and you shall immediately destroy any copies you have made of the Content. Nothing on this Web Site or in
this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark of BioArts displayed on this Web Site (the “Trademarks”) without the prior written consent of BioArts
specific for each such use. The Trademarks may not be used to disparage BioArts, the Auctioned Services, or in any
other manner that may damage any goodwill in the Trademarks. All goodwill generated from the use of any
Trademark shall inure to BioArts’ benefit.
3.2 Other Restrictions. You agree not to: (i) take any action that imposes an unreasonable load on the Web Site’s
infrastructure, (ii) use any device, software or routine to interfere or attempt to interfere with the proper working of the
Web Site or any activity being conducted on the Web Site, (iii) attempt to decipher, decompile, disassemble or reverse
engineer any of the software comprising or making up the Web Site, (iv) delete or alter any material posted on the Web
Site by BioArts or any other person or entity, or (v) frame or link to any of the materials or information available on the
Web Site.
3.3 External Sites. The Web Site may contain links to third-party web sites (“External Sites”) that are provided
solely as a convenience to you and not as an endorsement by us of the content on such External Sites. We are not
responsible for the content of any linked External Sites and do not make any representations regarding the content or
accuracy of any materials on such External Sites. You should take precautions when downloading files from all web
sites to protect your computer from viruses and other destructive programs. If you decide to access any External
Sites, you do so at your own risk.
3.4 Auctioneer. All Auctions are conducted by the Auctioneer (on behalf of BioArts). You agree to defend, indemnify and hold harmless the Auctioneer from and against any claims, actions, liability, costs, expenses or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or the Client Agreement.
4.1 NO WARRANTIES. BIOARTS, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “BIOARTS PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE WEB SITE, AUCTION OR CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE BIOARTS PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE
WEB SITE, AUCTION OR CONTENT OR ANY OTHER INFORMATION CONVEYED TO YOU OR FOR ERRORS,
MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR
INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEB SITE, AUCTION
AND CONTENT AT YOUR OWN RISK. THE BIOARTS PARTIES DO NOT WARRANT THAT THE WEB SITE OR
ANY AUCTIONS WILL OPERATE ERROR-FREE OR THAT THE WEB SITE, ITS SERVER OR THE CONTENT ARE
FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE
OF THE WEB SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT
OR DATA, NO BIOARTS PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE, AUCTION AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT ANY WARRANTIES OF ANY KIND. THE BIOARTS PARTIES HEREBY DISCLAIM ALL WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT
OF THIRD PARTIES RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
4.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY BIOARTS PARTY BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL AND CONSEQUENTIAL
DAMAGES, LOST PROFITS AND DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEB SITE, ANY AUCTION, THE AUCTIONED
SERVICES OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH BIOARTS PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
4.3 Exclusions. Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental
or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS,
THE LIABILITY OF THE BIOARTS PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY
LAW.
You agree to defend, indemnify, and hold harmless the BioArts Parties from and against
any claims, actions, liability, costs, expenses or demands, including, without limitation, reasonable legal and
accounting fees, arising or resulting from your breach of this Agreement or your access to, use or misuse of the
Content, any Auctions or the Web Site. We shall provide notice to you of any such claim, suit, or proceeding. We
reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification
hereunder. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
We reserve the right, in our sole discretion, to (i) terminate this
Agreement, (ii) restrict, suspend, or terminate any Auction and your access to all or any part of the Web Site, any
Auction or any Content, (iii) discontinue any Auction or bid, or (iv) exclude you from using the Auction, in each case at
any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all
or any part of the Web Site, any Auction or the Content at any time without prior notice or liability (including without
limitation if we have reason to believe your username and password have been used in any unauthorized manner).
Sections 1, 2.1, 2.5, 2.6, 3, 4, 5, 6, 7, 8, 9 and 10 and all other obligations that have accrued, and all representations
and warranties that have been made, in each case under this Agreement shall survive the termination of this
Agreement.
We make no claims concerning whether the Content may be
downloaded, viewed or be appropriate for use or whether you can participate in any Auction outside of the United
States. If you access the Web Site or the Content from outside of the United States, you do so at your own risk.
Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of
your specific jurisdiction. The United States controls the export of products and information. You expressly agree to
comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under
the export control laws. By downloading any Content, you are expressly agreeing that you are not in a country where
such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for
compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
In the event of any dispute with us arising in relation to this Agreement, the Web Site or
any Auctions, you agree to follow the following dispute resolution procedure: (i) you will notify us of the nature of the
dispute as soon as possible by email or by mail in accordance with Section 9; (ii) if any dispute is not resolved with 30
days from the date on which a notice setting out the nature of the dispute is received by us, either you or we may
request a meeting within 14 days with the relevant representatives who have the power to resolve the dispute; and (iii)
if any dispute is not resolved within 14 days following such meeting, you or we may take may take such other lawful
action as you or we deem appropriate.
Except as explicitly stated otherwise, notices to you shall be served to the email address you provide
to us during the registration process; alternatively, we may give you notice by mail to the address provided during the
registration process. You shall send notices to us by sending such notice to the email address inquiries@bioarts.com,
or sending notice by mail to 38 Miller Avenue, Suite 12, Mill Valley, California 94941, Attn: Lou Hawthorne. Notices by
email shall be deemed given 24 hours after the email is sent, and notices sent by mail shall be deemed given three
days after the date of mailing.
This Agreement is governed by the internal substantive laws of the State of California,
without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of
the state and federal courts sitting in the City of San Francisco in the State of California. If any provision of this
Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of
BioArts to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any
other provision in this Agreement. No waiver shall be effective against BioArts unless made in writing, and no such
waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by BioArts and
you, this Agreement constitutes the entire Agreement between you and BioArts with respect to the subject matter
hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties
with respect to the subject matter hereof. The section headings are provided merely for convenience and shall not be
given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and
sublicensees. BioArts is not liable for protection of privacy of electronic mail or other information transferred through
the Internet or any other network that you may use. |
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