Date of Last Revision: June 28, 2021
1) Seller’s Auction House: Third-Party Service Provider Terms
a) An auctioneer (“Seller”) has contracted with NextLot, Inc., a Delaware corporation (“Service Provider”) to provide Seller with certain technology and services (collectively, the “Service”) to facilitate Seller’s operation of an auction website that Seller intends to use for prebidding, timed auctions, webcast auctions, liquidations and related activities. Seller directs these activities and as applicable, Seller’s website and other technology (collectively, “Seller’s Auction House”) to potential buyers like You. In accessing Seller’s Auction House to review or bid on, or purchase, products or services offered by Seller through Seller’s Auction House (each and collectively, “Offerings”) You and other Seller customers will be using the Service. Your use of the Service is conditioned on your acceptance of these Auction Service Provider Terms; You may not use the Service unless you accept and agree that all Auction Service Provider Terms are legally binding on You (this “Agreement”).
b) PLEASE REVIEW THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. By either clicking on the “I Agree” button or using the Service after having the opportunity to read this Agreement, You agree to be bound by this Agreement. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. As used in this Agreement, “You” and “Your” refer to you, the user of Seller’s Auction House, together with any company or other business entity you are representing (if any).
c) Service Provider may change the terms and conditions contained in this Agreement at any time in its sole discretion, and any such changes are effective upon being posted to the Service. By continuing to use the Service after such changes are effective, You accept those changes and agree to be bound by the revised Agreement.
d) In the event of any conflict between any Seller terms and conditions to which You agree regarding Seller’s Auction House, and this Agreement, this Agreement governs.
a) You must register to use the Service. You warrant that the information you provide in registration is accurate and complete; You promptly will notify of any changes in that information. You must maintain the confidentiality of your username and password. You are responsible for all transactions that occur using your username and password, whether or not You have authorized them. Without limiting the foregoing, You will immediately notify Seller of any unauthorized use of Your username or password.
b) The Service is not designed for or intended to be used by children. You must be at least 18 years old to register to use the Service. If You are under 18, then only with Service Provider’s prior written approval may your legal guardian expressly assume responsibility for Your registration, on such terms as Service Provider requires. In any event Service Provider may, at its sole discretion, refuse to accept any registration or rescind or any registration or discontinue Your use of the Service for any reason.
3) Privacy; Communications
4) Proprietary Rights.
a) As between You and Service Provider, Service Provider owns all right, title and interest in and to the Service (also including, without limitation, text, graphics, logos, button icons, brands, trademarks, images, audio clips and software, and the collection, assembly and arrangement of material therein), the NextLot mobile app (“Mobile App”), and all intellectual property rights in all of the foregoing (“Service Provider IP”). You are granted a limited, revocable, non-transferable license to use the Mobile App only to access and use Seller’s Auction House during the term of this Agreement. You acknowledge that the Service and its structure, organization, and the Mobile App constitute valuable trade secrets of Service Provider. Accordingly, You will not, either directly or through a third party, (i) modify, adapt, alter, translate, or create derivative works from the Service or the Mobile App; (ii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Service, to any third party; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the any code from the Service. For sake of clarity, Service Provider IP does not include Seller’s website or its trademarks or trade names. All rights not expressly granted herein are reserved to Service Provider.
b) To the extent that You upload information, content or other materials to the Service, as between Service Provider and You, You will own those materials and You warrant that you have all necessary rights to upload those materials into the Service.
5) Use of Service.
a) You must only use the Service as part of your use of Seller’s Auction House for its intended purposes, and in compliance with all Seller rules applicable to such use. Also, specifically, You must not:
i) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation;
ii) knowingly buy any Offering not lawfully offered for sale or purchase in or from the United States or in the jurisdiction where you would receive such Offering;
iii) import or export any Offering from the United States in violation of U.S. law or other applicable law;
iv) interfere with or disrupt computer networks connected to the Service;
v) impersonate any other person or entity, or misrepresent your employment by, or affiliation with, any other person or entity;
vi) disguise or change the origin of any information or origin or termination of communications;
vii) interfere with or disrupt any use of the Service by others or use the Service to send unwanted or unsolicited communications;
viii) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Service;
ix) access the Service by means of an automated process, spider, bot, or any similar device,;
x) use the Service in any way to gain unauthorized entry or access to any computer systems;
xi) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
xii) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable;
xiii) upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any "investment opportunities".
b) Additionally, regarding auctions:
i) Bids may be placed at some auctions by Seller, an employee of the Seller, the consignor, or an agent on the consignor's behalf. You should consult the auction's terms and conditions because the terms and conditions control the conduct of each auction. Service Provider has no role in setting the terms and conditions under which an auction is conducted.
ii) Seller, in its discretion, may charge a “Buyer’s Premium” in addition to the winning bid on an Offering by fully disclosing such premium in the auction listing. If you are the winning buyer, you agree to pay the Buyer’s Premium in addition to Your winning bid.
iii) If You place a bid on an item which is offered for sale in an auction format, Your bid is irrevocable until such time as You have been out-bid.
d) You are responsible for paying all amounts owed for all winning bids, including without limitation all applicable taxes and Buyer’s Premiums.
iv) All forms of shill bidding (directly or indirectly bidding on an item that You have listed for sale as a Seller), bid manipulation and collusion between users are forbidden. You may not place bids under a false name or with an invalid credit card or other invalid payment method.
v) Seller may specify a reserve price for each Offering, but may choose not to disclose the reserve price to potential buyers. The reserve price specifies a minimum price for the auction. Bids below the reserve price will be recorded, but shall not obligate the bidder to purchase the auctioned item. Seller may also add additional conditions to the sale of an Offering by placing a notice in an Offering’s listing.
6) Terms of Sales; Credit Card Payments
a) Unless a Seller specifically lists other terms (in which case such terms shall apply solely to Seller and not Service Provider), all sales are final and all Offerings are sold as-is, where-is, with all the faults, imperfections, omissions and errors in the written description and photography. Service Provider is not responsible for any errors or omissions in the description or photography provided in Seller’s Auction House. You agree that You are solely responsible for verifying the condition and description of each Offering before buying it.
b) If You make credit card or other payments through the Service, You acknowledge that the associated payment processing services are provided by a third-party payment processor and not by Service Provider, subject to the terms and conditions of the third party payment processor. Service Provider is not responsible for the acts or omissions of such processor, or for any fraudulent or unauthorized transactions using Your credit card or other payment account. You have no right to assert any charge-backs against Seller or Service Provider and Seller and Service Provider have no liability whatsoever for any charge-backs, refund claims or other issues relating to Your payment transactions.
c) Service Provider is not responsible for the calculation or payment of any taxes or the reporting or remittance of any taxes to any taxing authority. You expressly agree to comply with any and all applicable laws and regulations, including without limitation, those with respect to taxes. You agree to defend, indemnify, and hold harmless Service Provider from and against any and all damages, penalties, costs and expenses incurred by or imposed upon Service Provider resulting from Your failure to comply with applicable tax laws.
You agree to defend, indemnify and hold harmless Service Provider, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (collectively, “Indemnified Parties”), from and against any claim, loss, damage, liabilities, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney's fees) incurred by any of the Indemnified Parties arising from or related to (i) any breach or violation by You of this Agreement; or (ii) any claims arising out of or related to Your non-performance of your obligations including but not limited to the obligation to complete transactions, or to pay all amounts owed.
8) DISCLAIMER OF WARRANTIES.
a) Service Provider makes not warranties as to functioning or operation of the Service or its availability. Service Provider reserves the right, without notice and at any time, to suspend or halt the Service in whole or part.
b) SERVICE PROVIDER DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, SELLER’S AUCTION HOUSE, AND OFFERINGS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT AND ANY OTHER WARRANTIES THAT MAY BE CONSTRUED FROM USAGE OF TRADE OR COURSE OF DEALINGS. THE SERVICES AND ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION ACCESSIBLE THROUGH THE SERVICE, ARE PROVIDED ON A STRICTLY "AS IS", “WHERE IS”, "AS AVAILABLE" BASIS.
c) SERVICE PROVIDER FURTHER DISCLAIMS ANY RESPONSIBILITY FOR SELLER OR ITS BUSINESS; YOU ACCEPT THAT YOU ARE SELLER’S CUSTOMER, NOT SERVICE PROVIDER’S, AND THAT YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER TO ENGAGE IN ANY TRANSACTIONS WITH SELLER OR SELLER’S AUCTION HOUSE, AND MUST LOOK TO SELLER OR OTHERS (NOT SERVICE PROVIDER) REGARDING ANY CLAIMS OR ISSUES RELATING TO OFFERINGS OR SELLER’S AUCTION HOUSE.
9) Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, LOST GOODWILL, OR LOST SALES, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. IN NO EVENT WILL SERVICE PROVIDER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN ANY WAY RELATING TO THIS AGREEMENT, EXCEED ONE HUNDRED U.S. DOLLARS (100.00).
b) THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
a) No Relationship. You are not an agent, representative, broker, employee, partner, or joint venturer of Service Provider. Service Provider is a service provider to Seller; and You are a customer of Seller’s, not of Service Provider’s.
b) Links to Third Parties. The Service may provide links to the websites or services of others ("Third-Party Services"). Links to such Third-Party Services, or any do not constitute an endorsement or guarantee by Service Provider of such Third-Party Services, or the products, content, materials or information presented or made available by such Third-Party Services. You agree Service Provider is not responsible for any damages or losses caused or alleged to have been caused by any third party or the use of any Third-Party Services, or from the products, content, material, services or information presented by or made available through such Third-Party Services.
c) Choice of Law; Consent to Jurisdiction. This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of North Carolina, without regard for conflict of laws provisions. The parties submit to the exclusive jurisdiction of and venue in the federal and state courts located in Wake County, North Carolina. Each party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If court proceedings are required to enforce any provision of this Agreement, the prevailing party shall be entitled to an award of reasonable costs and expenses of litigation and any appeal, including reasonable attorneys’ fees.
i) To Service Provider: To be valid, notices must be sent by email (email@example.com) and by certified mail, return receipt requested, to NextLot, Inc.; 4242 Six Forks Rd., Suite 1550, Raleigh, NC 27609 or to such other address as may be designated from time to time in the most recent version of this Agreement. Notices to Service Provider shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
ii) To You: Notices, if any, to You will be sent by email to the email address reflected in Your registration information. Notices to You shall be deemed to have been received 24 hours after the email is sent.
e) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
f) Waiver. Failure to exercise or enforce any right or provision of this Agreement will not deemed a waiver of such right or provision.