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Acknowledgment and Acceptance of Terms and Conditions
Use of this Web Site
By using this web site (the "Site"), you are agreeing to the following Terms and Conditions (including, but not limited to, any operating rules and/or policies as they may be amended from time to time) (the "Terms and Conditions") of changingguardauctions.com (owned by Treefrog Treasures LLC) ("we," "our" or "Changing Guard"). These Terms and Conditions comprise the entire agreement between you and Changing Guard and supersede all prior agreements between the parties, regarding the subject matter contained herein. Before you may become a member of Changing Guard, you must read and accept all of the Terms and Conditions in, and linked to, these Terms and Conditions.
Who Can Use This Site
You must register with Changing Guard as a member and be capable of forming legally binding contracts, be over the age of eighteen (18) and, after becoming a member, not be temporarily or indefinitely suspended from our site.
Procedures for Conducting Auctions
All items are listed and sold on an "as is" basis.
All agreements to buy or sell herein shall be between the seller and buyer. Changing Guard Auctions will have no obligations or liability under any such agreement.
Items are listed for the specified bidding periods shown on our Site and are deemed "sold" at the close of bidding which will be set at a time pre-determined by the seller. Each item will have a description and disclosure information on our Site, as well as any additional conditions of sale provided by a seller. Once bidding commences, bidders may make a bid at any time prior to closing of the bidding. All items will have a minimum bid price disclosed on our Site. For certain items, the seller may impose a reserve price which is not disclosed on our Site. If there are no bids above the minimum bid or reserve price (whichever is higher), then the seller is not obligated to sell the item. If a buyer bids on an item and that bid represents the highest bid for that item, and the highest bid is at or above the seller's minimum and/or reserve price (whichever is higher), the buyer's bid is deemed accepted by the seller (subject to these Terms and Conditions, including the right of a buyer to change or retract a bid in the event of a material change in the description of the item). After bidding closes on each item, Changing Guard will send the highest bidder and seller an email detailing the highest bid and contact information. In all auctions, buyers who receive a winning bid notice are legally bound to buy the item at the quoted bid amount and the seller is legally bound and obligated to sell the item and complete the transaction with the highest bidder upon completion of the bidding pursuant to these Terms and Conditions (subject to the additional conditions of sale specified by the seller).
User Name and Password
In order to become a member, you must select a user name and a password. You are entirely responsible for maintaining the confidentiality of your user name and password and we shall have no liability whatsoever. Furthermore, you are entirely responsible for any and all activities, which occur under your user name and password. You agree to immediately notify Changing Guard of any unauthorized use of your user name or password or any other breach of security of which you may become aware.
Terms and Conditions as Contract
These Terms and Conditions, together with any additional conditions of sale provided by a seller on our Site for a particular item are a binding contract between a seller and the winning bidder in any completed auction and is an irrevocable offer, subject only to material changes in the description of an item made after a bid is placed by a buyer. By bidding on an item you, as a bidder, agree, and by listing an item on our Site, you, as a seller agree, to be bound by these Terms and Conditions and the seller's conditions of sale included in the item's description, so long as those conditions of sale are not in violation of these Terms and Conditions or unlawful. In the event of any direct conflict between these Terms and Conditions and any conditions of sale provided by a seller, then these Terms and Conditions shall prevail.
Fees
Joining Changing Guard and bidding on listed items is free. We do charge fees for using other services, such as listing items. When you list an item or use a service that has a fee you have an opportunity to review and accept the fees that you will be charged based on our Fees schedule set forth on our Site which we may change from time to time. Changes to that Policy are effective after we provide you with at least fourteen days' notice by posting the changes on our Site. Fees will be charged monthly on or around the fifteenth business day of each month. You are responsible for paying all fees and applicable taxes associated with our Site and services in a timely manner with a valid payment method. Payment will be automatically charged to the credit card that register. Registration of a credit card is required to list an auction. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms and we shall have the right, in our sole discretion, to restrict your access to our Site. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your PayPal account balance.) Unless otherwise noted, all fees are quoted and payable in U.S. Dollars.
Use of Changing Guard
While using Changing Guard, you will not:
- post content or items in an inappropriate category or areas on our Site and services;
- violate any laws, third party rights, or any of our policies, including transmitting any material that encourages conduct that could constitute a criminal offense or give rise to civil liability;
- misrepresent items that you have posted for sale;
- fail to deliver payment for items purchased by you, unless the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot authenticate the seller's identity;
- fail to deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot authenticate the buyer's identity;
- charge excessive shipping;
- circumvent or manipulate our fee structure, the billing process, or fees owed to Changing Guard;
- post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
- take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of our Site or using it for purposes unrelated to Changing Guard);
- transfer your account (including feedback) and User name to another party without our prior written consent;
- distribute or post spam, chain letters, lotteries, gambling or pyramid schemes;
- distribute viruses or any other technologies that may harm Changing Guard, or the interests or property of our users;
- take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- copy, modify, transmit or distribute content from our Site and Changing Guard's copyrights and trademarks;
- disseminate any message in a broad-based mailing;
- forge communications or take any other action that would disguise the origin of communications member transmits through our Site;
- permit another person to transmit communications that falsely identifies the member's account as the origin of such communication;
- transmit through our Site any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; or
- harvest or otherwise collect information about users, including email addresses, without their consent.
Prohibited Items
Changing Guard is a site devoted to the sale and purchase of toy soldiers, military miniatures and militaria. No other item can be sold on Changing Guard without our prior written consent. In addition, as a Changing Guard seller, you are ultimately responsible for making sure that selling an item is legal in the eyes of the law.
The following items are strictly prohibited:
firearms, weapons and knives
- offensive material such as ethnically or racially offensive material and Nazi memorabilia (other than toy soldiers and military miniatures)
- pornographic materials
Violations of these policies may result in a range of actions, including:
- Listing cancellation
- Limits on account privileges
- Account suspension
- Forfeit of fees on cancelled listings
When policy violations occur, we will email the seller, as well as bidders, that a listing has been ended.
When selling across borders, be aware of international trading and import restrictions. Certain items may be legal in your country, but may be illegal elsewhere.
Abuse of Changing Guard Site
Without limiting other remedies, we may limit, suspend or terminate our service and user accounts, prohibit access to our Site, delay or remove hosted content, and take technical and legal steps to keep users off our Site if we think that they are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of our policies.
Resale or Commercial Use of Changing Guard's Services
Your use of our Site is personal to you and you agree not to resell or make any commercial use of the services provided on our Site, without the express written consent of Changing Guard. You acknowledge that content appearing on our Site may be protected by copyrights, trademarks or other proprietary or personal rights and that applicable law will govern your use of such content. You also further agree that you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
Nothing herein shall limit or prevent you from re-selling any item purchased through our Site.
Feedback
All feedback left by a member will be conducted in compliance with applicable law and must be factual in nature. We (including our subsidiaries, affiliates and divisions and its and their directors, officers, managing member, employees and agents) are not liable for any claims, demands and damages arising out of any feedback left for a member and are entirely without recourse to Changing Guard. If a member receives three unique negative feedbacks (meaning negative feedback from three different members), we will have the option, at our sole discretion, to remove such member from our Site and suspend such member's user account.
Liability
You will not hold Changing Guard, its internet service providers or its information providers responsible for other users' content, actions or inactions, or items they list. You acknowledge that we are not a traditional auctioneer. Instead, our Site is a venue to allow anyone to offer, sell, and buy toy soldiers, and military miniatures and certain military related items, at anytime, from anywhere, in a variety of pricing formats, such as fixed price formats and auction-style formats. We are not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of users' content or listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction. While we strive to keep the information on our Site accurate, complete and up-to-date, we cannot guarantee, nor will be responsible for any damage or loss related to the accuracy, completeness or timeliness of the information. Such information is provided without representation or warranty of any kind.
We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of Uniform Commercial Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. Unless the buyer and the seller agree otherwise, the buyer will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with Uniform Commercial Code § 2-401(2). Further, we cannot guarantee continuous or secure access to our services, and operation of our Site may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, Terms and Conditions. Neither we, our internet service providers, nor our information providers are liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of our Site and services. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraph, if we are found to be liable, the liability of Changing Guard and its internet service providers to you or to any third party is limited to the total amount of fees you paid to us in the 12 months prior to the action giving rise to the liability.
The provisions of these Terms and Conditions are for the benefit of Changing Guard, its subsidiaries, affiliates and divisions and its and their directors, managing members, officers, employees and agents, its and their internet service providers, information providers and licensors and each shall have the right to assert and enforce such provision directly on its own behalf.
Release
If you have a dispute with one or more users, you release us (and our subsidiaries, affiliates, divisions and its and their directors, managing members, officers, employees and agents from claims, demands and damages (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."
Privacy
We do not sell or rent your personal information to third parties for any purposes. We use your information only as described in our policy. You can access and modify the information you provide us by signing-in to your account. For a complete description of how we use and protect your personal information, see our privacy policy. If you object to your Information being transferred or used in this way please do not use our Site.
Indemnity
You will indemnify and hold us (and our subsidiaries, affiliates and divisions, and its and their directors, managing members, officers, employees and agents), internet service providers and information providers harmless from any claim or demand, including reasonable attorneys' fees, made by you or any third party due to or arising out of your breach of these Terms and Conditions, your use of our Site or your violation of any law or the rights of a third party.
No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these Terms and Conditions.
Notices
Except as explicitly stated otherwise, legal notices shall be served on our registered agent or to the email address you provide to us during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
Resolution of Disputes
If a dispute arises between you and Changing Guard, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Changing Guard agree that we will resolve any claim or controversy at law or equity that arises out of Terms and Conditions or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Law and Forum for Disputes - These Terms and Conditions shall be governed in all respects by the laws of the State of Minnesota as they apply to agreements entered into and to be performed entirely within Minnesota, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Changing Guard must be resolved by a court located in Olmsted County, Minnesota, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Olmsted County, Minnesota for the purpose of litigating all such claims or disputes.
Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
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