NEXTLOT SELLER TERMS OF USE

 

These Seller Terms of Use, as may be amended from time to time, are a legally binding agreement (this “Agreement“) between you, together with any company or other business entity you are representing, if any (collectively, “You”), and NextLot, Inc., a Delaware corporation (“NextLot”). This Agreement contains the general terms and conditions for Your use of Services as a Seller. The “Service” means NextLot’s proprietary software-as-a-service platform enabling auctioneers, liquidators, and other merchants (“Sellers”) to create private-labeled, auction websites through which they can sell their products and services (each and collectively, “Offerings”) online by various methods. Your use of the Service is also subject to additional specific terms set forth in a Service Agreement executed by You and NextLot (the “Service Agreement”). Subject to the terms of this Agreement and as specified in the Service Agreement, NextLot may provide You with related services, including hosting of the online auction house, site design, email services, marketing services, and as may be offered from time to time (the Service and such other services, collectively, the “Services“). To the extent of any conflict with this Agreement, the Service Agreement will prevail. This Agreement is effective upon the earlier of Your registration of an account with NextLot for use of any Service, and the effective date provided in the Service Agreement.  NextLot may modify the terms of this Agreement from time to time by posting the amended Agreement on NextLot’s website at https://www.nextlot.com (the “NextLot Site”).  Except as stated below, all amended terms shall automatically be effective seven (7) days after they are initially posted on the NextLot Site, and Your continued use of any Services constitutes your consent to the Amended Agreement.

 

1.  ACCESS AND USE OF SERVICES  You may access and use the Services subject to this Agreement and payment of all fees stated in the Services Agreement for the Term authorized therein, solely for the purpose of building and maintaining an interactive auction house hosted by NextLot, through which You offer Your or a third party’s Offerings (“Your Auction House”). By Your use of the Service, 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.  You are solely responsible for maintaining the confidentiality of such password and/or passphrase and for all transactions occurring through use of Your account.

 

 2. PROPRIETARY RIGHTS

 

2.1. SERVICE.  As between You and NextLot, NextLot owns exclusively all right, title and interest in and to the Service, and any mobile application (“Mobile App”) or other software that may be licensed to You in connection with the Service, together with all worldwide intellectual property rights therein. All rights not expressly granted to You in this Agreement are reserved by NextLot.

2.2. MOBILE APP LICENSE. Subject to the terms and conditions of this Agreement, and as specified in the Service Agreement, NextLot grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Mobile App on compatible devices to interact with the NextLot Site and use the Service.

2.3. RESTRICTIONS. You acknowledge that the Service and its structure, organization, and the Mobile App constitute valuable trade secrets of NextLot. Accordingly, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Service or the Mobile App; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Service, to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the any code from the Service; 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 the applicable fees for certain features of the Service, 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 as stated in the Service Agreement may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions. Similarly, NextLot may make available additional services (including third party services) that are subject to their own supplemental terms and conditions. You agree that Your right to use any such additional software and services is subject to their corresponding additional terms, which may include payment of additional fees.

 

3. SERVICES.

 

3.1. SERVICES. Upon activation of Your account and subject to the payment of the applicable fees, NextLot will provide certain hosting, support and such other Services for Your Auction House during the term of this Agreement, as stated in the Service Agreement. Your Auction House will 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 Services, Your account, policy changes and system updates.

3.4. The NextLot Site and Services are not designed for use by children. NextLot intends that the Services be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the 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 any notice to You, to terminate access to the Services, and revoke any and all licenses that may have been granted under this Agreement.

 

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 Offerings, 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 (your customers) 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 Offerings 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 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 Services in accordance with Section 13 of this Agreement.

4.4. PASSIVE CONDUIT; NO RELATIONSHIP. You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party Offerings or content, NextLot acts only as passive conduits for the distribution and/ or publishing of such Offerings or content through the Auction House. The Service functions solely to facilitate transactions between You and Your Auction House customers. 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 Offering, or title to any Offering, from You to any customer of Your Auction House. NextLot has no obligation to You or any third party, and undertakes no responsibility, to review Your Auction House, the Offerings 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 Offering 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 Offering, content or other materials in the Auction House or in NextLot’s systems may create liability for NextLot, You agree that NextLot may take any actions with respect to the same 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 may create liability for NextLot.

4.5. 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 that offering and sale of all Offerings, and all content published and/or distributed through Your Auction House and Your related activities shall not:

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’s server or systems 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 Offerings that violate any applicable law, statute, ordinance or regulation, or that violate NextLot’s policies regarding prohibited and restricted Offerings.

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; PAYMENT PROCESSING

 

6.1. FEES. You shall pay the subscription fees for the Services and all other fees due and payable hereunder as set forth in the Service Agreement.  Unless otherwise stated therein, all fees are quoted in U.S. Dollars.
6.2. PAYMENT TERMS. You agree to pay all fees payable hereunder within ten (10) days after Your receipt of NextLot’s invoice therefor.  In addition to all subscription and license fees, the fees include transaction fees and all other fees designated in the Service Agreement. Subscription fees are based on the value of Offerings sold through Your Auction House during the previous calendar month, in accordance with the invoicing and payment requirements set forth in the Service Agreement.  Fees are payable by the means set forth in the Service Agreement. 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.

6.4  PAYMENT PROCESSING.  If You have elected to use the payment-processing feature within the Service as stated in the Service Agreement as to payments made to You by Your customers, You acknowledge that such payment processing services are provided by a third-party payment processor and not by NextLot. You acknowledge that such payment processing is subject to the terms and conditions of the third party payment processor, and NextLot 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, or for any fraudulent or unauthorized transactions affecting your customers. You have no right to assert any charge-backs against NextLot and NextLot has no liability whatsoever for any charge-backs, refund claims or other issues relating to any payment transactions through the Service. Your use of this payment service may require that You make modifications to your systems or website or that you license other software for such use. In such event, the terms applicable thereto will be as set forth in the Service Agreement.

 

7. DISCLAIMER OF WARRANTIES.

 

NEXTLOT, ITS LICENSORS, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SERVICES, THE NEXTLOT SITE, AND ANY ADDITIONAL FEATURES, AND LICENSE THE MOBILE APP AND ANY OTHER SOFTWARE, 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 WHICH ALL ARE EXCLUDED. NEXTLOT, ITS LICENSORS, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SERVICES, THE NEXTLOT SITE, MOBILE APP OR OTHER SOFTWARE THAT MAY BE LICENSED HEREUNDER 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 LICENSORS, ITS SUPPLIERS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES THAT THE AGREEMENT BETWEEN NEXTLOT AND CUSTOMERS OF YOUR AUCTION HOUSE WILL BE ADEQUATE TO LEGALLY PROTECT YOU FROM CLAIMS OR SUITS BY SUCH CUSTOMERS.

 

8. LIMITATION OF LIABILITY.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTLOT, ITS LICENSORS,  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 SERVICES OR ANY ADDITIONAL FEATURES, OR THE MOBILE APP OR ANY OTHER SOFTWARE, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NEXTLOT’S, ITS LICENSORS’,  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 Service Agreement, it is agreed that in the event of (i) a termination without cause by you (other than as expressly permitted under your Service Agreement, 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 Service Agreement 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 licensors, 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 Offerings 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 licensors’, 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 & DATA PROCESSSING ADDENDUM

 

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 Policy at https://www.nextlot.com/privacy-policy, 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.

 11.4  The terms of the Data Processing Addendum at: www.nextlot.com/data-processing-addendum as may be updated and modified from time to time, are incorporated into this Agreement by reference and will apply to the extent that NextLot processes Customer Data and Your Data constitute “Personal Data” as defined in such Data Processing Addendum.

 

12. SUSPENSION AND TERMINATION

 

12.1. SUSPENSION. At the discretion of NextLot and for any reason set forth in Section 12 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 12.2 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.

12.2. 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 12.1 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.

12.3. RIGHTS UPON TERMINATION. In the event of expiration or termination for any reason, all access to the Service shall automatically and immediately cease and You shall destroy any copies of NextLot’s software in Your possession, if any. Upon termination, there will be no refund provided to You unless otherwise provided in the Service Agreement 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.

 

13. GENERAL

 

13.1. 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.

13.2. LEGAL COMPLIANCE. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Services, Mobile App, and any other software that may be licensed hereunder, and Your listing and sale of Offerings on Your Auction House.

13.3. 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.

13.4. 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, pandemic, failures in electric power or telecommunications services, or any other event beyond the control of the party.

13.5. 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 $25,000, 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.

13.6. 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.

13.7. 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.

13.8. 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.

13.9. 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.

13.10. 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.

13.11. 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), 12.3 (Rights Upon Termination), and 13 (General) shall survive any termination or expiration of this Agreement.

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

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