NEXTLOT TERMS OF USE

 

These Seller Terms of Use (this “Agreement“) is between you, the user, together with any company or other business entity you are representing, if any (collectively, “You“), and NextLot, Inc., a Delaware corporation (“NextLot”). This Agreement shall be subject to any Software License Agreement or similar contract (“SLA”) between NextLot and You, and such SLA shall prevail over this Agreement in the event of any conflicts.

NextLot provides software programs (”Software“) that enable auctioneers, liquidators, and other merchants (“Merchants”) to create private-labeled, auction websites through which they can sell their products and services online by various methods. NextLot may also provide related services, including hosting of the online auction house, site design, email services, marketing services, and other related services as may be offered from time to time (collectively, “Services“).

This Agreement is effective upon Your acceptance in registration. By accepting this Agreement, and subject to the terms and conditions of this Agreement, including all those terms and conditions that are set forth on the NextLot website located at  (”NextLot Site“) that are incorporated herein by reference and may be accessed through or referenced by this Agreement, NextLot will provide You with a limited license to use the Software and receive the Services.

By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Except as stated below, all amended terms shall automatically be effective seven (7) days after they are initially posted on the NextLot Site.

You authorize NextLot to process any and all of Your NextLot account transactions initiated through the use of the password and/or passphrase that You establish through registration on the NextLot Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.

Notwithstanding anything contained in the foregoing, this Agreement will not bind NextLot unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.

 

1. ELIGIBILITY CRITERIA.

 

The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. NextLot uses many techniques to verify the accuracy of the information You provide when You register on the NextLot Site. If for any reason, NextLot, in its sole discretion, believes such information to be incomplete or incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.

 

2. NEXTLOT SOFTWARE AND TRADEMARK OWNERSHIP AND LICENSES.

 

2.1. SOFTWARE OWNERSHIP. Software provided by NextLot, and all worldwide intellectual property rights therein, are the exclusive property of NextLot. All rights in and to the Software not expressly granted to You in this Agreement are reserved by NextLot.

2.2. SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, NextLot grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for NextLot (”NextLot Servers“) through the NextLot Site solely for the purpose of building and maintaining an interactive auction house hosted by the NextLot Servers on which You offer Your or a third party’s products or services (”Your Auction House“).

2.3. SOFTWARE LICENSE RESTRICTIONS. You acknowledge that the Software and its structure, organization, and source code constitute valuable trade secrets of NextLot. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software, or the right to use the Software, to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (d) transfer your interest in and to Your Auction House to any third party.

2.4. NEXTLOT TRADEMARK OWNERSHIP, LICENSE AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for certain features of the Software, NextLot grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to you by NextLot under this Agreement (”NextLot Marks“), solely for use in the display on those locations on Your Auction House’s web pages as designated by NextLot in its sole discretion, and solely in accordance with NextLot’s written approval. NextLot grants no rights in the NextLot Marks other than those expressly granted in this Section 2.4. You acknowledge NextLot’s exclusive ownership of the NextLot Marks. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the NextLot Marks or in such a way as to create combination marks with the NextLot Marks. At NextLot’s request (in its sole discretion), You will immediately discontinue any use and display of the NextLot Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the NextLot Marks, no licenses are granted by NextLot to any other trademarks, service marks, or trade names owned by NextLot, its parent, or affiliates.

2.5. ADDITIONAL FEATURES. Certain additional features that NextLot may make available to You may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions (”Additional Software“). Similarly, NextLot may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (”Additional Services“). You agree that You will not use such Additional Software or Additional Services unless You have agreed to the applicable terms and conditions, including but not limited to Your payment of additional fees as required.

 

3. SERVICES.

 

3.1. SERVICES. Upon activation of Your account and subject to the payment of applicable fees, NextLot will provide certain hosting, support and other miscellaneous Services for the Software licensed by You under this Agreement and Your Auction House during the term of this Agreement as published on the NextLot Site. Your Auction House shall be hosted on a NextLot Server on which several merchants may share the resources and network capacity of that NextLot Server.

3.2. AUCTION HOUSE DESIGN AND CUSTOMIZATION. At Your request, and subject to NextLot’s acceptance of your request and Your payment of applicable fees, NextLot will provide design and customization Services for Your Auction House as provided in this Section 3.2 and in accordance with NextLot’s then current customization terms and conditions. You shall provide all text, photographs, graphics, logo data, software, design, information and all other content for Your Auction House to NextLot within a time period designated by NextLot. NextLot shall transfer all Your content into electronic form and a user-accessible format. You shall be solely responsible for obtaining and determining your rights to use such media in connection with Your Auction House.

3.3. CHANGES IN SERVICES. NextLot reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from NextLot in regards to the Software, Services, Your account, policy changes and system updates.

 

4. YOUR AUCTION HOUSE & CONTENT CONTROL

 

4.1. CONTROL OF YOUR AUCTION HOUSE. You will be solely responsible for the operation and maintenance of Your Auction House, including the operation of Your Auction House, accepting, processing and filing customer orders generated through Your Auction House, obtaining payment for goods, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Auction House. You agree that NextLot has no obligation to back-up any data related to Your Auction House’s operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.

4.2.  AUCTION HOUSE TERMS & CONDITIONS. You represent and warrant that you provide full and adequate disclosures to buyers in Your Auction House’s terms and conditions, including if Your Auction House participates in auctioneer or related party bidding, and you further represent and warrant that Your Auction House places all bids in accordance with any and all governing state and federal laws.

4.3. CONTROL OF YOUR AUCTION HOUSE’S CONTENT. You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Auction House, regardless of whether NextLot provides any design or customization Services to You under this Agreement, including all descriptions of the products and services You offer to customers of Your Auction House and user-generated content on and related to Your Auction House. As a conduit, NextLot will give You complete discretion over Your content provided it is compatible and interoperable with the Software and Services provided by NextLot under this Agreement. You retain all rights, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by NextLot. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in Section 5.1 of this Agreement, NextLot is entitled to suspend or terminate Your Auction House and/or any access to information or data related to Your account and the Software in accordance with Section 13 of this Agreement.

4.4. PASSIVE CONDUIT. You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, NextLot and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Auction House. NextLot has no obligation to You or any third party, and undertakes no responsibility, to review Your Auction House, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Auction House to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if NextLot believes in its sole discretion (as applicable) that Your Auction House or any products, services, content or other materials in the Auction House or on NextLot Servers may create liability for NextLot, You agree that NextLot may take any actions with respect to the content or materials or Your Auction House that NextLot believes are prudent or necessary to minimize or eliminate NextLot’s potential liability. NextLot shall, as applicable, be the sole judge of what content or materials may create liability for NextLot.

4.5. NO RELATIONSHIP. The Software exists solely as a facilitator of transactions between You and Your Auction House customers. NextLot is not a party to any transactions entered into between You and any customer(s) of Your Auction House. NextLot is not an agent of either You or any customer of Your Auction House. NextLot does not have the right, duty or power to transfer any item, or title to any item, from You to any customer of Your Auction House

4.6. CONTENT LICENSE. During the period that NextLot provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to NextLot and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content solely for the purposes provided in this Agreement.

 

5. COVENANTS

 

5.1. COVENANTS BY YOU. You covenant that any products, services, or content published and distributed on Your Auction House and Your related activities shall not violate the NextLot Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they:

a. be false, inaccurate or misleading;
b. be fraudulent or involve the sale of counterfeit or stolen items;
c. infringe or misappropriates any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
d. violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);
e. be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
f. be obscene, contain child pornography, or contain any other illicit material;
g. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
h. involve the transmission of any unsolicited commercial or bulk email (known as “spamming”) and You shall not use Your account or Your Auction House as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
i. involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
j. be harmful or potentially harmful to the NextLot Server structure as determined in NextLot’s sole discretion, including without limitation overloading the NextLot technical infrastructure;
k. involve subleasing Your account or offering “free space” on or other access to Your account or Your Auction House to third parties;
l. create liability for NextLot and its subcontractors or expose them to undue risk or otherwise engage in activities that NextLot, in its sole discretion, determines to be harmful to NextLot’s affiliates, operations, reputation, or goodwill ; and
m. link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate NextLot’s Prohibited and Restricted Items that is incorporated herein by reference and may be amended from time to time.

Furthermore, You agree to display and adhere to any terms of use or other user-type agreement, as well as a privacy policy, governing Your operation of Your Auction House and Your conduct with Your Auction House’s customers.

5.2. BREACH OF COVENANT. Your failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 13 of this Agreement.

 

6. FEES; TAXES; & AUDIT RIGHTS

 

6.1. FEES. You shall pay the fees set forth for the Software license and Services purchased by You in accordance with NextLot’s Fees Policy that is incorporated into this Agreement by reference. NextLot may change its Fees Policy and the fees for its Services from time to time. NextLot’s changes to the policy are effective after NextLot provides You with at least fourteen (14) days’ notice of the changes by posting the changes on the NextLot Site. Unless otherwise stated, all fees are quoted in U.S. Dollars. You acknowledge and Agree that You are bound by the terms and conditions of the SLA, including without limitation, those provisions relating to pricing, fees, term, commitment, and exclusivity.
6.2. PAYMENT TERMS. NextLot will invoice You and You agree to pay for (i) all fees, including fees for the license of Software and Services to be rendered to You by or on behalf of NextLot, within ten (10) days upon Your receipt of NextLot’s invoice, and (ii) transaction fees and all other fees designated in the Fees Policy to be paid within (10) days upon Your receipt of NextLot’s invoice based on the value of goods and services sold through Your Auction House during the previous calendar month, in accordance with the invoicing and payment requirements set forth in the SLA. NextLot will debit all fees payable by You to NextLot directly by check, wire transfer, PayPal, or other means expressly permitted by NextLot. Without limiting NextLot’s other remedies, any amount that is not received from You or Your designated account within thirty (30) days after they become due will accrue a late fee at a rate of one and one half percent (1½ %) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

6.3. TAXES. All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on NextLot’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.

 

7. DISCLAIMER OF WARRANTIES.

 

NEXTLOT, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, ADDITIONAL SOFTWARE, AND SERVICES, ON AN “AS IS” BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. NEXTLOT, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, ADDITIONAL SOFTWARE, OR SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. NEXTLOT, ITS SUPPLIERS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES THAT THE AGREEMENT BETWEEN NEXTLOT AND CUSTOMER’S OF YOUR AUCTION HOUSE WILL BE ADEQUATE TO LEGALLY PROTECT YOU FROM CLAIMS OR SUITS BY SUCH CUSTOMERS.

 

8. LIMITATION OF LIABILITY.

 

IN NO EVENT SHALL NEXTLOT, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). NEXTLOT’S, ITS SUPPLIERS’, AND SERVICE PROVIDERS’, CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED U.S. DOLLARS (U.S. $100). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

9. LIQUIDATED DAMAGES. 

 

If you agree to run online auctions exclusively with NextLot under your SLA, it is agreed that in the event of (i) a termination without cause by you (other than as expressly permitted under your SLA, if applicable), or (ii) a termination for cause by NextLot, in each case prior to the end of the initial term or the then-current renewal term (clauses (i) and (ii) together, an “Early Termination Event”), the determination of actual damages to NextLot will be very difficult to calculate.  It is therefore stipulated and agreed that in the event of an Early Termination Event, you shall immediately pay to NextLot, prior to the effective date of such Early Termination Event, liquidated damages in an amount equal to 75% of the Average Monthly Fees multiplied by the number of months (including partial months) remaining in the initial term or the then-current renewal term, as applicable (the “Liquidated Damages”), and such Liquidated Damages are hereby stipulated to be a reasonable, good faith estimate of actual damages to NextLot resulting from such Early Termination Event and not a penalty.  “Average Monthly Fees” means the average amount paid or payable by you to NextLot in the six full months prior to the effective date of the Early Termination Event, or, if your SLA has not been in effect for six full months, the average monthly amount paid or payable by you to NextLot prior to the effective date of the Early Termination Event.  Nothing in this Section shall be interpreted as a limitation on or waiver of NextLot’s right to pursue injunctive or other equitable relief as otherwise permitted hereunder. 

 

 

10. INDEMNITY.

 

You agree to indemnify and hold NextLot, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (a) any breach of the covenants in Section 5.1 of this Agreement, (b) any content provided by You or generated by users of Your Auction House, (c) any claims arising from the sale or license of goods or services in Your Auction House, (d) Auction House’s failure to meet its legal obligations, and (e) any breach of this Agreement or the documents it incorporates by reference. NextLot’s, its suppliers’ and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by NextLot.

 

11. CUSTOMER DATA, YOUR DATA & PRIVACY POLICY

 

11.1. As between NextLot and You, You shall own all data disclosed by or collected about (a) an individual or entity that accesses Your Auction House to browse or shop (”Customer Data“), and (b) You (”Your Data“). NextLot does not sell or rent Your Data to third parties for marketing purposes without Your explicit consent and NextLot only uses and disclose Your Data as described in the NextLot Privacy Information, that is incorporated herein by reference and as it may be amended from time to time.

11.2. NextLot shall collect, store and process Customer Data and Your Data on computers that are protected by commercially reasonable security devices. If You object to Customer Data or Your Data being collected, stored or processed in this way, please do not use the Software or Services.

11.3. You shall maintain all Customer Data that is collected by You or disclosed to You in trust and confidence and shall use and disclose such information solely in accordance with Your privacy policy. NextLot strongly advises You to establish, post, maintain and adhere to a privacy policy that informs Your Auction House customers what Customer Data is collected, how it is used, the effective date of Your privacy policy and how customers of Your Auction Houses can learn of changes to Your privacy policy. NextLot strongly advises You to include a hyperlink to Your privacy policy on your home page and on all pages where You collect Customer Data. In addition, NextLot strongly advises You to prominently include within Your posted privacy policy a statement notifying Your customers that Your Auction House is hosted by NextLot and that NextLot has access to aggregated information about customers of Your Auction House in order for NextLot to analyze performance and make improvements to NextLot products. Notwithstanding the foregoing, and notwithstanding whether you establish a privacy policy and/or comply with its terms, You shall defend indemnify and hold harmless NextLot from and against any third party claims arising in connection with any Customer Data that you receive or collect, including without limitation, any claims, suits, fines or penalties arising with respect to your use, misuse, treatment, protection or disclosure of Customer Data or any other confidential or personal information of third parties; provided, however, that NextLot shall be responsible for any such claims arising due to its own gross negligence or intentionally harmful acts in connection with such matters.

 

12. BREACH.

 

Without limiting other remedies, NextLot may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Auction House, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement and the Price Policy; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) NextLot is unable to verify or authenticate any information You provide to NextLot; or (e) NextLot believes that Your actions may cause financial loss or legal liability for You, Your Auction House customers, or NextLot.

 

13. SUSPENSION AND TERMINATION

 

13.1. SUSPENSION. At the discretion of NextLot and for any reason set forth in Section 13 of this Agreement, NextLot may suspend Your account by deactivating any access by You or by Your customers to any information contained on the NextLot Servers related to Your account while maintaining the information and data related to Your account upon the NextLot Servers. Suspension shall specifically include the disabling of Your Auction House and/or any access to information or data related to Your account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 13.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.

13.2. TERMINATION. This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated either by NextLot (a) immediately as provided in this Agreement, (b) after a period of suspension as set forth in Section 13.1 of this Agreement, or (c) upon thirty (30) days written notice for any reason. YOU may terminate this Agreement upon thirty (30) days written notice upon a breach of this Agreement by NextLot that is not cured within such thirty (30) day period.

13.3. RIGHTS UPON TERMINATION. In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as set forth in the Price Policy and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of NextLot to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses’ cost or other costs of any kind under this Agreement.

 

14. GENERAL

 

14.1. GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the State of North Carolina without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction.

14.2. LEGAL COMPLIANCE. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Auction House.

14.3. NO AGENCY. You and NextLot are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

14.4. FORCE MAJEURE. Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.

14.5. DISPUTES. In the event a dispute arises between You and NextLot, NextLot goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and NextLot agree that any claim or controversy at law or equity that arises out of this Agreement, the Software, or Services (”Claims“) shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, NextLot strongly encourages You to first contact NextLot directly as provided in Section 14.6 to seek a resolution and NextLot will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.

a. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, You or NextLot may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association (”AAA“) or the Judicial Arbitration and Mediation Service (”JAMS“) in accordance with their applicable rules, or any other established Alternative Dispute Resolution provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

b. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Raleigh, North Carolina or where the defendant is located (in NextLot’s case Raleigh, North Carolina, and in Your case Your home address or principal place of business). You and NextLot agree to submit to the personal jurisdiction of the courts located within the county of Wake, North Carolina.

c. Alternative Dispute Resolution. Alternatively, NextLot will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Wake County, North Carolina or another location mutually agreed upon by the parties. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section 14.5 by the first party to file a Claim. Should either party file an action contrary to this Section, the other party may recover attorneys’ fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.

14.6. NOTICES. Except as explicitly stated otherwise, any notices shall be given by postal mail to NextLot 4242 Six Forks Rd., Suite 1550, Raleigh, NC 27609 (in the case of NextLot) or to the email address You provide to NextLot during the registration process (in Your case). Notice shall be deemed given twenty four (24) hours after email is sent, unless NextLot is notified that the email address is invalid. Alternatively, NextLot may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to NextLot during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.

14.7. ASSIGNMENT. You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by NextLot, in NextLot’s sole discretion.

14.8. NO THIRD PARTY BENEFICIARY. You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.

14.9. SEVERABILITY; WAIVER. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. NextLot’s failure to act with respect to a breach by You or others does not waive NextLot’s right to act with respect to subsequent or similar breaches.

14.10. CONSTRUCTION. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.

14.11. SURVIVAL. Sections 2.4 (Ownership), 6.1 (Fees) with respect to any outstanding fees owed for the Services, 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 10 (Indemnity), 9, (Liquidated Damages), 11 (Customer Data, Your Data, & Privacy Policy), 13.3 (Rights Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.

14.12. DISCLOSURES. The services hereunder are offered by NextLot Inc., located at 4242 Six Forks Rd., Suite 1550, Raleigh, NC 27609.

14.13. ADDITIONAL TERMS. :
This Agreement may be amended from time to time and the amended Agreement shall be automatically effective fifteen (15) days after it is initially posted on the NextLot Site. In addition, when using particular services on the NextLot Site, You agree that You are subject to any posted policies or rules applicable to services You use through the NextLot Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement.

14.14. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding and agreement between You and NextLot with respect to the subject matter hereof.