Thank you for your interest in VIP Fan Auctions (“VIP,” “we,” or “us”). The terms and conditions set out below represent the only terms and conditions applicable to the use of www.vipfanauctions.com and though VIP-Auctions on eBay.com (collectively referred to as the “Site”), including bidding on and purchasing entertainment memorabilia and collectibles through the Site (“Items”) that are offered through auctions on eBay by VIP on behalf of third party studios (“Sellers”) and other services provided by us and by eBay (together with the Site, our “Service”); provided that such terms and conditions may be modified or supplemented by information provided on the Site for particular auctions. These Terms and Conditions are a legally binding contract between you and VIP regarding your use of the Service.
- ELIGIBILITY. You must be at least 18 years of age to participate in a sale. By agreeing to these Terms, you represent and warrant that: (a) you are at least 18 years of age; (b) you have not previously been suspended, had one of your eBay user ids blocked by VIP or otherwise been removed from the Service; (c) you have a valid PayPal account; (d) have a valid email address with access to the World Wide Web; and (e) our registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you are an authorized representative with the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- BUYER ACKNOWLEDGEMENTS AND ASSUMPTION OF RISK: All VIP sales are conducted on behalf of third-party sellers and all sales are “AS IS” and with all faults, without warranty or condition of any kind, either express or implied. You acknowledge that some Items offered for sale on the Service are inherently dangerous (e.g., weapons, sharp or broken objects, small Items that may be swallowed or ingested, or Items that may have latent defects, all of which may cause harm to a person) or may be inoperable (e.g., cell phones may not work). Pursuant to these Terms, all disputes between you and VIP will be resolved by binding arbitration. You agree to give up your right to go to court to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator and not a judge or jury, and your claims cannot be brought as a class action. Please review Section 29 below, titled “Dispute Resolution and Arbitration” for the details regarding your agreement to arbitrate any disputes with VIP.
- BIDDING. Submission of a bid for an Item constitutes a binding offer to purchase the Item for the amount offered in the bid, and on the terms herein and on the Site. All bids are final and irrevocable, and a bid will not be deemed withdrawn unless VIP acknowledges receipt of the bidder’s intent to withdraw the bid and agrees to withdraw the bid. You are responsible for your eBay account and are fully liable for all bidding activity that occurs on your eBay account. If your account is used be a family member, other person in your household, or even a friend with access to your account, you are still fully liable for payment of all items for which the bid from your eBay account is the winning bids. When identical bids are received, preference will be given to the first such bid received, provided that VIP reserves the right to refuse to honor any bid or to limit the amount of any bid, in its sole discretion. When making a bid, you are accepting personal liability to pay the Total Purchase Price (defined below).
- BIDDER & PAYMENT VERIFICATION: VIP reserves the right to verify all bidders including requesting additional documentation to confirm the bidder’s ability to make payment, regardless of the bidder’s eBay feedback history. VIP may also require any winning bidder to provide VIP, within 36 hours of email notification from VIP, with payment confirmation in a form required by VIP. Failure to comply with this requirement may result in an unpaid item case being opened, the transaction being canceled, the item(s) being re-listed or second chance offer(s) being initiated for the item(s). VIP reserves the right to block any bidder if they fail to comply with this bidder verification process or for any other reason in VIP’s sole discretion including but not limited to, inability to satisfactorily verify bidder, lack of payment history, feedback, non-payment on any item(s), bid retractions, and/or recent bid history. VIP reserves the right, in its sole discretion, to reject a bid or block a bidder for any reason its sole and unlimited discretion.
- VIP’S DISCRETION/BIDDING DISPUTES. VIP, in its sole discretion, has the right to refuse any bid in its sole discretion. VIP has the final say in the event of concern or doubt by VIP about the validity of any bid, any error relating to bidding or any bid (including, but not limited to, error by VIP), or any dispute between bidders. VIP may choose, in its sole discretion, to continue bidding, refuse a bid, cancel a bid, determine the successful bidder, withdraw an Item, re-offer an Item, reopen bidding or restart the bidding, as the case may be. In any dispute, VIP’s records, whether audio, visual, or written, are conclusive. Once made, a bidder may not retract or rescind any bid.
- PURCHASE PRICE & PAYMENT. The total purchase price to be paid by the winner of the bid (the “Buyer”) is, and the Buyer acknowledges it is responsible for and agrees to timely pay, the sum of the final bid price (the highest bid acknowledged and accepted), plus all applicable state and local sales and/or use taxes and license fees, plus any and all costs and expenses incurred on behalf of the Buyer, such as handling fees, shipping costs and any insurance costs (collectively, the “Total Purchase Price”). All sales are for cash in U.S. dollars, to be paid via Paypal unless otherwise expressly agreed in advance by the Buyer and VIP. Payment is due within seven (7) days following the close of the auction. Title to an Item does not pass to the Buyer, and the Item will not be released to a Buyer, until good and cleared funds in the amount of the Total Purchase Price are received by VIP.
- SECURITY INTEREST. You acknowledge that Seller shall have a continuing first-priority security interest in all Items to secure payment of all amounts owed by the Buyers of such Items. Seller shall have the benefit of all rights of a secured party under the Uniform Commercial Code (U.C.C.) as adopted by the state of Illinois, and Buyers will execute a UCC-1 financing statements at VIP’s request as appropriate to secure Seller’s interest. VIP is further authorized by Seller in the event of nonpayment to retain or take possession of any Items purchased by such Buyer but not yet delivered, and/or to retain any credit balance due to such Buyer as an offset against the amounts owed by such Buyer to VIP or its affiliates.
- SHIPPING AND HANDLING. Except in the case of an Item that is designated for Customer Pick-Up, upon full payment for the Item by Buyer, VIP will ship the Item at the customer’s expense. VIP packages and ships each Item individually unless otherwise expressly agreed in advance by VIP and Buyer. Certain Items may be subject to additional shipping and handling fees as stated on the Site or otherwise disclosed to the Buyer. Some Items are not available for shipment outside of the United States. Please check the item description to see if the item you are bidding on is available to be shipped internationally as VIP does not ship to certain countries. All international shipments will be shipped via air delivery, FOB Chicago, Illinois.
- LATE PAYMENTS. Bidders will be deemed in default if funds sufficient to cover all amounts due with respect to a particular Item are not received in VIP’s account within seven (7) days following the close of the auction. Any amounts owed to VIP at that time shall bear interest at the highest rate permitted by law, and shall incur a late fee in an amount equal to 3% of the balance outstanding 7 days after the close of the auction. The Buyer agrees to pay all costs incurred by VIP in connection with collecting the past due amount (including, without limitation, collection agency fees, court costs, and legal fees). Time spent on collections by VIP’s in-house legal staff shall be charged at an hourly rate comparable to that of outside attorneys. In the case of non-payment by a Bidder, their contact information and eBay user id may be shared with and/or reported to credit reporting agencies, eBay, entertainment studios, collector’s forums or other third parties by VIP in their sole discretion.
- TAXES. Sales taxes will be applied to all purchases shipped to Illinois addresses, and Buyers are responsible for all taxes, import duties, customs fees, tariffs and other charges associated with international shipping. If a Buyer refuses to pay, any such fees or charges, Buyer remain responsible for the purchase price of the item and are responsible for any resulting charges resulting from your failure to pay any such taxes, import duties, customs fees or tariffs.
- ITEM DESCRIPTIONS. All descriptions of the Items for sale or other statements related to such Items, including, but not limited to, descriptions on the Site, in announcements, press releases, or advertisements, or in any bill of sale or invoice, do not, and shall not under any circumstances be deemed to, create or constitute representations or warranties of any kind by VIP or the Seller and none of the foregoing are a part of the basis of the bargain of the purchase and sale of any Item.
- THIRD PARTY SERVICES AND WEBSITES. VIP may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on VIP with an account on the third party service, such as eBay, Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons) (“Linked Sites”). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. VIP does not control or endorse any such Linked Sites or the information, material, products or services contained on or accessible through them, and we are not responsible for any third party service’s use of your exported information.
- OWNERSHIP; PROPRIETARY RIGHTS. The Service is owned and operated by VIP. You acknowledge and agree that the visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by VIP are protected by intellectual property and other laws. All Materials contained in the Service are the property of VIP, the Seller, or our third-party licensors. Except as expressly authorized by VIP, you may not make use of the Materials. VIP, the Seller or our third-party licensors reserve all rights to the Materials not granted expressly in these Terms.
- INDEMNIFICATION. You agree that you will be responsible for your use of the Service, and you agree to indemnify and hold VIP harmless from and against all losses, costs, liabilities and expenses, including reasonable attorneys’ fees, arising out of or related to your violation of any portion of these Terms or any applicable law or regulation.
- VEHICLE SALES DISCLAIMER. Any Vehicles that are offered are solely being offered for sale as collector’s Items. Vehicles may not be suitable for use on the road. The Buyer of any vehicle who intends to use any such vehicle on the road is responsible for determining roadworthiness and for complying with all applicable regulations regarding title, registration, insurance, emission control, and safety equipment. The Buyer assumes all risk of whether any such vehicle will or does comply, and VIP shall not have any liability or responsibility of any kind for failure to comply or lack of roadworthiness by any vehicle. Buyers are responsible for determining whether or not an export permit is required to export a vehicle and for obtaining and paying the costs of any permits or licenses necessary to export any vehicle from the United States and/or import it into any other country, and for the payment of any import duty that may be levied by the country of import.
- DISCLAIMER OF WARRANTIES. THE SERVICE, ALL MATERIALS AVAILABLE ON THE SERVICE, AND ALL ITEMS OFFERED FOR SALE OR SOLD THROUGH THE SERVICE, ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY. VIP AND THE SELLER DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIP AND SELLER DO NOT WARRANT THAT ANY ITEM WILL BE SAFE, FUNCTIONAL, OR FREE OF DEFECTS OR THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND BID ON OR PURCHASE ITEMS, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE SERVICE OR ITEMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- LIMITATION OF LIABILITY. IN NO EVENT WILL VIP BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR USE OF OR INABILITY TO USE THE SERVICE, OR TO YOUR PURCHASE OF OR INABILITY TO PURCHASE ANY ITEM THROUGH THE SERVICE, OR OTHERWISE UNDER THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIP OR ITS HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. YOU AGREE THAT IF ANY LAWSUIT OR COURT PROCEEDING IS PERMITTED UNDER THESE TERMS, THE AGGREGATE LIABILITY OF VIP IS LIMITED TO THE GREATER OF AN AMOUNT EQUAL TO THE BUYER’S PREMIUM PAID BY YOU TO VIP WITH REGARD TO THE PURCHASE OF AN ITEM OR $200. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- PROHIBITED CONDUCT. By using the service you agree not to:
- Engage in any manipulative or disruptive bidding practices, including without limitation “shill” bidding or any other practice designed to interfere with the natural progression of bidding or otherwise affect the ultimate sale price of any Item.
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- Use the Service in connection with research, development, or offering any service that competes with the Service;
- Obtain, attempt to obtain, or redistribute any Materials (defined below) or information available through the Service through any means not intentionally made available by VIP, including by any form of automated access, scraping, or similar process, without VIP’s express written permission;
- Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- Post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- Interfere with security-related features of the Service, including by:
- Disabling or circumventing features that prevent or limit use or copying of any content or reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law notwithstanding this limitation;
- Interfere with the operation of the Service or any user’s enjoyment of the Service, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; making any unsolicited offer or advertisement to another user of the Service; attempting to collect personal information about another user or third party without consent; or interfering with, overburdening, or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- Performing any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- Selling or otherwise transferring the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
- Attempting to do any of the acts described in this Section 19 or assist or permit any person to engage in any of the acts described in this Section 19.
- TERMINATION OR SUSPENSION OF ACCOUNT. If you violate any provision of these Terms, your permission from us to bid and otherwise use the Service will terminate automatically. In addition, VIP may in its sole discretion suspend, block or terminate your access to the Service and your ability to bid at any time for any reason or no reason, with or without notice. You acknowledge and agree that upon such termination, VIP may immediately delete or deactivate your account and all related information in your account and/or bar any further access to the Service. Further, you agree that VIP will not be liable to you or any third party for any termination of your access to the Service. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you.
- GOVERNING LAW. These Terms are governed by the laws of the State of Illinois without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and VIP agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Chicago, Illinois for the purpose of litigating any dispute.
- NOTICES. Except as explicitly stated otherwise, legal notices will be served on VIP by registered mail sent to VIP, 424 Fort Hill Drive, Naperville, IL 60540. Legal notices will be served on you by the email address you provide if you are a registered eBay user. Notice by email will be deemed given twenty-four hours after email is sent, unless VIP is notified that the email address is invalid. Notice given by either party by mail will be deemed given three days after the date of mailing. Notice by posting on the Service will be deemed given thirty days after it is initially posted.
- MODIFICATION OF TERMS. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. If VIP modifies these Terms, they will be published through the Service, with the effective date of the last revision indicated. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, VIP will make reasonable efforts to notify you of the change. For example, a message may be sent to your email address, if you have one on file, or the Service may generate a pop-up or similar notification when you log in for the first time after such material changes are made. Immaterial modifications are effective upon publication. Material modifications are effective 30 days after they are made available through the Service, except that disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your continued use of the Service after revised Terms have become effective indicates that you have read, understood, and agreed to the current version of these Terms.
- ADDITIONAL TERMS. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- RELEASE. In the event that you have a dispute with the Seller regarding an Item, regardless of the nature of such dispute, you release VIP (including its affiliates, directors, officers, employees, contractors, and agents) from claims, losses, damages, and liabilities, including legal fees and expenses (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
- DISPUTE RESOLUTION AND ARBITRATION.
- In the interest of resolving disputes between you and VIP in the most expedient and cost effective manner, you and VIP agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VIP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 28, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and VIP will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting VIP.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). VIP’s address for Notice is: VIP, 424 Fort Hill Drive, Naperville, IL 60540. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or VIP may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or VIP must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, VIP will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by VIP in settlement of the dispute prior to the arbitrator’s award; or (iii) $200.
- Fees. If you commence arbitration in accordance with these Terms, VIP will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in DuPage County, Illinois, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse VIP for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND VIP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and VIP agree otherwise, 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.
- Modifications. If VIP makes any future change to this arbitration provision (other than a change to VIP’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to VIP’s address for Notice, in which case your account with VIP will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- DIGITAL MILLENNIUM COPYRIGHT ACT NOTIFICATION.
- VIP complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
424 Fort Hill Drive
Naperville, IL 60540
- NOTICE OF ALLEGED INFRINGEMENT. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- A description of the material that you claim is infringing and where it is located on the Service;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.