The use of the online services provided by Avatar Bazaar Ltd. – Ontario, Canada Company Number 002 503 963 (“Avatar Bazaar”) is governed by the terms and conditions set out below (“this Agreement”). Without limiting the way in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button or checkbox on your computer screen including your acceptance of this Agreement, or by proceeding to use the Services (as defined below) you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.
1. Definitions and Interpretation
In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:
Auction means an auction conducted by a Seller for the sale of a digital asset or publishing rights to a 3rd party digital property using the auction engine on AvatarBazaar.com. 3rd party publishing rights are not verified or regulated by Avatar Bazaar Ltd., thus no liability shall be assumed by Avatar Bazaar for any change in publishing rights.
Buyer means a person who offers to purchase a digital asset or publishing right advertised on AvatarBazaar.com. Default Sale Terms means the template terms and conditions provided by AvatarBazaar to Sellers which Sellers may at their option use as the terms and conditions governing the sale of their Avatar Bazaar transaction. Digital asset means a website, domain name, software application, 3rd party publishing rights, administrative roles, bilateral publishing rights or any encrypted stores of value which a Seller wishes to sell to a Buyer using AvatarBazaar.com.
Publishing right means a formal or informal agreement between the Seller and a 3rd party digital asset owner allowing the buyer to publish within their property. Publishing rights represent no form of ownership in the underlining asset and said rights may be adjusted by the asset owner at any time. All rights belong to the root domain owner at all times. No financial liability shall be placed on the Seller or Avatar Bazaar in the event of a status change publishing right purchased using AvatarBazaar.com.
In the interpretation of this Agreement, unless the contrary intention appears:
A reference to this Agreement means a reference to an agreement between you and Avatar Bazaar Ltd. on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
the singular includes the plural and vice versa;
a reference to any gender includes a reference to all other genders;
a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
headings are inserted for convenience only and do not affect the interpretation of this Agreement.
2. Services Offered by AvatarBazaar
AvatarBazaar provides an online service, in accordance with and subject to, the terms and conditions of this Agreement, whereby (“Services”):
Sellers may, via AvatarBazaar.com, advertise their Digital Asset for sale whether by way of a Private Sale, Auction or Catalog Sale;
Buyers may, via AvatarBazaar.com, contact Sellers to offer to purchase their Digital Asset; and
Buyers may, via AvatarBazaar.com, bid in Auctions conducted by Sellers.
You, as a user of the Services, may use the Services in the capacity as a Seller, Buyer or both a Seller and a Buyer. The terms and conditions of this Agreement will apply to your use of the Services in either or both of those capacities.
3. Creating a User Account to Use the Services
3.1 Creating a User Account
You agree to create a User Account with AvatarBazaar in order to use the Services.
Your User Account will be created using AvatarBazaar’s online sign up process, or any other method specified by AvatarBazaar from time to time.
Your User Account will permit you to login to AvatarBazaar.com to manage your User Account, make use of AvatarBazaar.com and to manage other details involving your relationship with AvatarBazaar.
You agree to keep confidential and secure any username or password used to access your User Account.
You warrant that all information provided to AvatarBazaar in the setup of your User Account is true and correct in every detail.
All users of the Services must be 18 years of age or older. By creating a User Account, you represent and warrant to AvatarBazaar that you are 18 years of age or older and you can form legally binding agreements under applicable law. You may however permit minors under 18 years of age to use your User Account on your behalf provided that you are their parent or legal guardian, and provided that their use of your User Account occurs under your supervision at all times. If you do permit a minor to use your User Account in accordance with the forgoing then you agree that you are responsible for their actions, omissions or negligence and you indemnify AvatarBazaar against any loss, cost, expense or damage it may suffer as a result of the same.
You agree to only maintain one User Account in relation to your use of the Services and AvatarBazaar.com.
You agree to provide AvatarBazaar with all identification documents (including copies of passports and drivers licences) which AvatarBazaar requests from you from time to time for the purposes of verifying your identity.
You agree to receive email communications from AvatarBazaar for commercial purposes. You are able to opt out of these emails later if you wish.
3.2 Use of Your User Account and AvatarBazaar.com
You agree that you will only use your User Account and AvatarBazaar.com for the purposes of using the Services and for no other purpose. In particular, in using your User Account and accessing AvatarBazaar.com, you will not:
breach the Rules;
resell or sublicense the use of AvatarBazaar.com or your User Account to any other person;
use your User Account in a fraudulent or illegal manner, or email or send any materials from your User Account which are offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
use your User Account to stalk or harass another person;
use your User Account to impersonate any person in any way whatsoever;
use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any person;
use your User Account for sending advertising, chain letters, junk mail, “spamming” or any other type of unsolicited email;
forge or alter the header or address information contained in any email or communication which you send from your User Account or in relation to the Services;
use your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;
use your User Account in such a way which damages AvatarBazaar.com or denies access to AvatarBazaar.com to other users of AvatarBazaar.com;
intentionally or recklessly use your User Account in a way that degrades the performance of AvatarBazaar.com for other users; and
cancel an Auction or Private Sale initiated by you (including any cancellation as a result of a termination of this Agreement) for the purpose of contracting separately with a Buyer you meet through AvatarBazaar.com which results in you avoiding paying AvatarBazaar any Fees (including a Success Fee). In these circumstances, without limiting AvatarBazaar remedies against you, AvatarBazaar may recover its lost Fees from you by suspending your User Account and/or deducting its loss from any AvatarBazaar Credits in your User Account.
4. Private Sales and Auctions
4.1 Conduct in Accordance with the Rules
Your participation as a Buyer or Seller in a Private Sale or Auction will at all times be governed by the Rules. You agree that you are bound by the Rules and will comply with the Rules.
4.2 Advertising a Private Sale or Auction
You may, as a Seller, advertise your Digital Asset for sale via a Private Sale, Auction or Catalog Sale. You may do so by placing a Listing on AvatarBazaar.com and indicating at the time of placement whether the sale of your Digital Asset will be by way of Auction, Private Sale or Catalog Sale. Note that you cannot change the type of sale from Auction to Private Sale or Catalog Sale whilst the Listing is active on AvatarBazaar.com.
4.3 Digital Assets You Can Sell
You may only list Digital Assets in which you have administrative authority, publishing rights, or own. Avatar Bazaar is in no way responsible for monitoring or regulating the accordance with 3rd party contracts or agreements implicated as stakeholders within any Avatar Bazaar transactions.
You are restricted from placing Listings to sell Digital Assets which:
are obscene, vulgar and/or deemed by AvatarBazaar to be offensive;
contain material which infringes the Intellectual Property Rights of a third party or which assists others to infringe the Intellectual Property Rights of a third party;
are engaged in activities which contravene the law of any territory; or
contravene any provision of the Rules. Avatar Bazaar holds the indefinite right to remove any content at its discretion, whether communicated or not. Avatar Bazaar holds no responsibility of communication for the removal of content.
4.4 Private Sale and Auction Requirements
In listing your Digital Asset for Auction or Private Sale, you agree to comply with the requirements in relation to Auctions and Private Sales as set out in these terms and conditions or as set out in the Rules.
When you advertise your Digital Asset for Auction:
you must specify all details requested by AvatarBazaar.com in relation to the Auction;
you must conduct the Auction using the Auction engine provided by AvatarBazaar.com;
you must conduct the Auction in accordance with the Rules; and
you must sell your Digital Asset to the Winning Bidder.
When you advertise your Digital Asset for Private Sale:
you must specify all details requested by AvatarBazaar.com in relation to the Private Sale;
you must conduct the Private Sale using the Private Sale engine provided by AvatarBazaar.com; and
you must conduct the Private Sale in accordance with the Rules.
You are not compelled to sell your Digital Asset to any particular Buyer using a Private Sale. However if you do elect to sell your Digital Asset to a particular Buyer via a Private Sale, then you agree that you must effect the sale and transfer of that Digital Asset to the Buyer.
When you advertise your Digital Asset for Catalog Sale:
you must specify all details requested by AvatarBazaar.com in relation to the Catalog Sale;
you must conduct the Catalog Sale using the Catalog Sale engine provided by AvatarBazaar.com; and
you must conduct the Catalog Sale in accordance with the Rules.
You are not compelled to sell your Digital Asset to any particular Buyer using a Catalog Sale. However if you do elect to sell your Digital Asset to a particular Buyer via a Catalog Sale, then you agree that you must effect the sale and transfer of that Digital Asset to the Buyer.
4.5 Conduct of Buyers
As a Buyer, you may offer to purchase a Digital Asset of a Seller via AvatarBazaar.com. Your offer to purchase must be submitted via AvatarBazaar.com. In the case of an Auction, your offer to purchase will be submitted as a bid in the Auction. All offers to purchase a Digital Asset (including an Auction bid) must be made in accordance with the Rules.
4.6 What must be sold as part of a Digital Asset
Any Website listed for sale on AvatarBazaar.com must offer for sale:
all files contained in the website including html code, other source code, logos, images, music, animation, films and other media;
one or more domain names for the website which must be transferable to another registrar; and
if specified by the Seller, all of the Seller’s rights and obligations in relation to any Third Party Agreements.
All publishing right must include a property URL, a functioning email, password and username.
Any software application listed for sale on AvatarBazaar.com must offer for sale:
transfer of ownership of the software application with all third parties, including but not limited to, the Apple ® iTunes store and Google ® Play store
all files contained in the software application including source code, logos, images, music, animation, films and other media; and
if specified by the Seller, all of the Seller’s rights and obligations in relation to any Third Party Agreements.
Any domain name listed for sale on AvatarBazaar.com must offer for sale:
one or more domain names which must be transferable to another registrar.
5. Legal Relationship Between Buyers and Sellers
5.1 Legal Status of Agreeing to Sell a Digital Asset
When a Seller agrees to sell a Digital Asset to a Buyer (whether by way of Auction, Private Sale or Catalog Sale) and the Buyer agrees to purchase that Digital Asset, then that agreement for the sale of the Digital Asset (“Sale Agreement”) will be legally binding on both the Seller and the Buyer.
An offer to purchase a Digital Asset, whether made in a Private Sale, Catalog Sale or as a bid in an Auction, is binding and irrevocable on the Buyer.
In the case of a bid at an Auction, the offer to purchase a Digital Asset will terminate once a higher bid is made by a third party.
The Buyer’s offer to purchase a Digital Asset will not become binding upon a Seller until it is accepted by a Seller. This includes any bids made by the Buyer in an Auction which must be accepted by the Seller for the bid to be valid.
5.2 Terms and Conditions of the Sale Between the Seller and the Buyer
The terms and conditions of the Sale Agreement must be specified by the Seller to the Buyer at the time of sale and/or negotiated separately between those parties after the Seller places its Listing. A Seller may, at the time of placing its Listing, elect to use the Default Sale Terms as the terms and conditions governing the sale of the Digital Asset. If so, both the Buyer and the Seller will be bound in relation to the Default Sale Terms.
You acknowledge that in using or agreeing to the Default Sale Terms as the terms and conditions governing the sale and/or purchase of a Digital Asset:
the Default Sale Terms have merely been provided by Avatar Bazaar to enable Sellers and Buyers to efficiently agree on the terms and conditions of the sale without resort to significant negotiation. Consequently the Default Sale Terms may not be appropriate or suitable to the sale or purchase of any particular Digital Asset;
you use the Default Sale Terms at your own risk and of your own choice. There is no compulsion for you to use or agree to the Default Sale Terms;
you have had the opportunity to obtain independent legal advice in relation to the Default Sale Terms; and
Avatar Bazaar and its Associates have not in any way provided any legal advice or financial advice in relation to the Default Sale Terms or made any representation or warranty that the Default Sale Terms will be suitable for the sale or purchase of your Digital Asset.
6. Avatar Bazaar’s Role in Relation to Auctions and Private Sales
6.1 AvatarBazaar.com provides a software engine and website to enable:
Sellers and Buyers to meet;
Sellers to place Listings to advertise their Digital Asset for sale; and
Sellers to conduct Auctions, Private Sales or Catalog Sales of their Digital Asset.
6.2 You acknowledge and agree that:
Avatar Bazaar is not an auctioneer;
Avatar Bazaar does not conduct Auctions on behalf of Sellers. All Auctions are conducted by Sellers on their own behalf;
Avatar Bazaar and its Associates are not responsible in any way for the compliance by each Buyer or Seller with the Sale Agreement. Avatar Bazaar do not guarantee and cannot ensure that a Buyer or Seller will actually complete a sale of a Digital Asset or act lawfully in their use of AvatarBazaar.com; and
Avatar Bazaar merely provides the software and website (being AvatarBazaar.com) by which Seller’s may conduct their own Auctions and Private Sales.
You agree that Avatar Bazaar is an independent service provider to you and is not the employee, agent, partner, joint venture party or subcontractor of any Seller or Buyer in relation to the sale of a Digital Asset. Avatar Bazaar’s only role in that sale is the role set out in clauses 7.1 and 7.2 above.
You agree that you do not have the power to bind Avatar Bazaar in relation to any obligation owing to a third party. You agree that by using the Services (either as Seller or Buyer) that Avatar Bazaar, in providing the Services and your access to AvatarBazaar.com, is providing a platform for you to be introduced to other Sellers or Buyers (as the case may be). Avatar Bazaar is not a party to any transaction or agreement between any Seller or Buyer and is not responsible for any act or omission of any Seller or Buyer.
7.1 Fees payable by a Seller
When you, as a Seller, set up a Listing for the sale of your Digital Asset, you:
May pay an up-front Listing Fee with respect to the listing and the sale of the Digital Asset
Agree that in the event your Digital Asset should sell, you will pay a Commission When you, as a Seller, make a sale of your Digital Asset via your Listing, payment of the Commission is due and payable within 14 days. The Seller permits Avatar Bazaar to automatically deduct the Commission from their Avatar Bazaar client account, Paypal, credit card or crypto currency account in the event the success fee is 14 days or more overdue.
7.2 How the Commission is paid
When your Digital Asset is sold, an invoice for the Commission will be automatically forwarded to you via the Avatar Bazaar user platform, which may be paid by credit card or Paypal. Where the Buyer initiates payment via the Avatar Bazaar website, the commission will be automatically deducted.
7.3 Avatar Bazaar Credits
You may pay for goods and services provided by Avatar Bazaar by exchanging Avatar Bazaar Credits in return for those goods and services.
Avatar Bazaar Credits are not equivalent to any currency. They may however be used to purchase certain specified goods and services from Avatar Bazaar.
Avatar Bazaar Credits are not legal tender and cannot be traded or sold to third parties. Avatar Bazaar Credits are only exchangeable for goods and services provided by Avatar Bazaar in accordance with pricing and rules specified by Avatar Bazaar from time to time.
The balance of any Avatar Bazaar Credits held by you may be reduced at any time by Avatar Bazaar for any amount owing by you to Avatar Bazaar on any account whatsoever including in relation to compensating Avatar Bazaar for any loss that it determines (in its sole and absolute discretion) it has suffered as a result of any breach of this Agreement by you.
7.4 Expiry of Avatar Bazaar Credits
The balance of Avatar Bazaar Credits held by you may expire after 12 months from the date that you last spent any Avatar Bazaar Credits to purchase any goods or services from Avatar Bazaar. Balances of your Avatar Bazaar Credits which are not spent within this 12 month period may be lost.
7.5 Avatar Bazaar is not an escrow service
Avatar Bazaar offers “Avatar Bazaar Escrow”, an escrow service powered by a third-party escrow provider, to sellers as a payment option. Avatar Bazaar is not an escrow service and does not hold property on behalf of any person. All amounts deposited or paid directly to Avatar Bazaar are property of Avatar Bazaar and Avatar Bazaar may use those funds as it sees fit. The only rights that you have to receive payment of any amounts held by Avatar Bazaar are as set out in this clause 8 or under clause 9.
8. Processing of Refunds
8.1 How refunds are paid
If Avatar Bazaar issues you a refund, the refund will be paid to you using the same payment methods you used to pay any Fees to Avatar Bazaar or via any other method Avatar Bazaar chooses from time to time.
8.2 Withdrawal of a Private Sale or Auction
If you, as a Seller withdraw a Private Sale or Auction (where permitted by the Rules), then unless we otherwise expressly state to the contrary, there will be no refund of any amount of the Fees paid by the seller in respect of the Private Sale, Catalog Sale or Auction.
8.3 Circumstances in which a refund may be paid
Avatar Bazaar may refund an amount of any Avatar Bazaar Fees paid by you if:
any refund policy in the Rules entitle you to a refund; or
Avatar Bazaar is required by law or considers that it is required by law to do so.
Avatar Bazaar’s determination as to whether a refund is required by this clause 9.3 is final and conclusive and may not be challenged by you.
9. Suspension of the Services
Without limiting Avatar Bazaar’s other rights arising under this Agreement, Avatar Bazaar may suspend your User Account and your use of the Services at any time, with or without notice to you, and for any reason in its sole and absolute discretion, including if:
Avatar Bazaar considers that you have breached any of your obligations to Avatar Bazaar under this Agreement;
Avatar Bazaar considers that you are using your User Account in bad faith or to collude in any way to reduce the amount of Fees that would ordinarily be payable to Avatar Bazaar;
you are using your User Account or the Services for illegal or fraudulent means or in a manner which Avatar Bazaar in its sole discretion considers offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
in Avatar Bazaar’s sole and absolute opinion, the provision of the Services to you is resulting in an unreasonable load on Avatar Bazaar’s servers or Avatar Bazaar’s other services;
if a notice of a claimed copyright infringement has been lodged against you, subject to the outcome of Avatar Bazaar’s notice and take-down procedures which may be found here; or
if Avatar Bazaar has reasonable grounds to believe that you are a repeat infringer of copyright or other Intellectual Property Rights.
Avatar Bazaar may suspend the Services where permitted under clause 10.1 at any time including without limitation, during or after a Listing
Avatar Bazaar’s suspension of the Services may, in Avatar Bazaar’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and
Avatar Bazaar may in its sole discretion reactivate the Services and your User Account for you at any time following suspension.
For the avoidance of doubt, you may not make withdrawals of, or spend any Avatar Bazaar Credits during any period of suspension of your User Account. Further Avatar Bazaar may in its discretion retain the balance of all Avatar Bazaar Credits in your account towards compensating Avatar Bazaar for any loss and damage it may have suffered as a result of your breach of this Agreement which lead to the User Account suspension.
During a suspension of your User Account, any Listings (whether for Auction or Private Sale) will be suspended or terminated (as determined by us in our sole and absolute discretion).
You agree that you will only use the Personal Information of other Sellers or Buyers for the purposes of this Agreement and for the purposes of interacting with them in relation to the sale or purchase of a Digital Asset. Unless separately agreed between you and another Seller or Buyer, you must not use their Personal Information for any other purpose.
You warrant to Avatar Bazaar and its third party providers that you will comply with all privacy laws and data protection laws (including, without limitation, the Canadian Privacy Act R.S.C., 1985, c. P-21) in relation to the storage, use and transfer of Personal Information.
11. Your General Obligations
You agree that:
you will not use the Services for any illegal or fraudulent purpose or for any purpose other than participating in Private Sales or Auctions as a Seller or Buyer;
you will comply with all laws which must be complied with in relation to a Listing or the sale or purchase of a Digital Asset;
you will comply with any export restrictions which may apply to the export or import of Digital Assets or other Intellectual Property Rights to locations inside or outside Australia or the territory in which you are located;
you will not undertake any act or cause any omission which will bring Avatar Bazaar, its brand or other Sellers and Buyers into disrepute;
you will not use the Services in a manner that may lead to the suspension of the Services under clause 10.1; and
12. Term and Termination
This Agreement will commence on the date that you first create a User Account with Avatar Bazaar and will terminate at the later of the date that:
the User Account is terminated or closed; or
you otherwise permanently cease using the Services.
If after termination or closure of your User Account, your User Account is reactivated or a new User Account is opened, or you otherwise recommence to use the Services, then you will again become bound by this Agreement at that time.
This Agreement and your User Account may be terminated by Avatar Bazaar at any time for any reason whatsoever with or without notice to you.
This Agreement may be terminated by Avatar Bazaar immediately on written notice to you:
if you are in default or breach of this Agreement; and
Avatar Bazaar has provided you with 24 hours written notice of the default or breach and where the breach or default is capable of rectification, you fail to rectify the breach or default within the period of the notice;
Avatar Bazaar has reasonable grounds to believe that you are a repeat infringer of copyright or other Intellectual Property Rights; or
without cause by giving thirty (30) days notice to you.
Upon the termination of this Agreement:
any Listings which you have placed on AvatarBazaar.com will instantly terminate;
Avatar Bazaar will, within a time period determined by Avatar Bazaar, withdraw the use of the Services from you;
any Avatar Bazaar Credits you hold will be cancelled immediately;
Clauses 3.2, 9, 11, 13.5, 14, 15 and 16 will survive the termination of this Agreement.
13. Limitation of Liability and Implied Terms
You acknowledge that Avatar Bazaar and its Third Party Providers have made no warranties that the Services will be continuous or error free.
You acknowledge and agree that Avatar Bazaar and its Third Party Providers shall have no liability or responsibility to you whatsoever for any unauthorized withdrawals or unauthorized spend of your Avatar Bazaar Credits, including where such withdrawal or spend arises from:
any of the events described in clause 17; or
any unauthorized use or access of your User Account or AvatarBazaar.com.
You acknowledge and agree that Avatar Bazaar and its Third Party Providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Avatar Bazaar under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses 14.7 and 14.8, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
Subject to clauses 14.7 and 14.8, you agree that Avatar Bazaar and its Third Party Providers will not be liable in respect of any claim by you (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential loss or damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether or not as a result of any breach or default by, or any negligence of, Avatar Bazaar or its Third Party Providers.
The maximum aggregate liability of Avatar Bazaar under this Agreement for any and all breaches of this Agreement and for any negligent or other act or omission in relation to this Agreement, will not exceed the amount of the Fees paid by you to Avatar Bazaar.
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of AvatarBazaar will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
You indemnify Avatar Bazaar, its agents, officers, employees, and Third Party Providers (“Indemnified”) against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of:
any breach by you of any representation, warranty or term of this Agreement;
any acts or omissions by you which are described in clause 10.1;
any breach by you of your obligations to a third party, including another Seller or Buyer;
any infringement by you of the rights of a third party including Intellectual Property Rights; and
any legal proceedings threatened or initiated against Avatar Bazaar by a third party as a result of the events described in clause 15(a) to (d) above.
15. Intellectual Property
You acknowledge that Avatar Bazaar is the owner of all Intellectual Property Rights which subsist in your User Account and AvatarBazaar.com (but not your Digital Asset). You acknowledge that you have no Intellectual Property Rights in your User Account or in AvatarBazaar.com.
You acknowledge that the obligations of Sellers and Buyers in relation to the transfer of the Intellectual Property Rights in a Digital Asset from a Seller to a Buyer will be set out in the Sale Agreement.
Each Seller warrants to Avatar Bazaar that its Digital Asset and its Listing at all times will not infringe the Intellectual Property Rights of a third party.
You acknowledge and agree that Avatar Bazaar will not be liable or responsible for any breach by a Buyer or Seller of any Intellectual Property Rights or other rights held by a third party in relation to the supply or purchase of a Digital Asset or in relation to a Listing.
You hereby grant Avatar Bazaar a royalty free, irrevocable, worldwide, perpetual license to display and use the contents of your Listing on AvatarBazaar.com, including any excerpts from your Digital Asset which are contained in your Listing.
16. Force Majeure
You agree that Avatar Bazaar and its Third Party Providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Avatar Bazaar complying with its obligations under this Agreement, where such failure or delay has arisen or is anticipated to arise as a direct or indirect result of:
fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
a significant demand is placed on Avatar Bazaar’s services which is above the usual level of demand and which results in a failure of Avatar Bazaar’s software and hardware to function correctly;
the failure of any third party (including without limitation, any bank or other financial institution) to fulfill any obligations to Avatar Bazaar; or
any other circumstances or events which are beyond the reasonable control of Avatar Bazaar or the Third Party Provider (as the case may be).
Avatar Bazaar may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to you (“Amendment Date”). You agree that without limiting the ways in which it may be bound by such amendments, you will be deemed to have agreed to such amendments by making use of or accessing your User Account or AvatarBazaar.com after the Amendment Date.
Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:
in the case of a notice delivered by hand, when so delivered;
in the case of a notice sent by pre-paid post, on the third day after the date of posting;
in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the dispatching facsimile machine which confirms that the facsimile has been successfully sent; or
in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.
This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
Avatar Bazaar may assign its rights and novate or transfer obligations which arise under this Agreement. You must not assign novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of Avatar Bazaar (which may be withheld).
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
This agreement is governed by, and must be construed in accordance with, the laws of the Province of Ontario, Canada and the parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada and their Courts of Appeal.
If you have any questions or concerns as it relates to this agreement, please write to us as 90 Madawaska Blvd., PO Box 124, Arnprior, Ontario, Canada, K7S 3H4