STANDARD GENERAL TERMS AND CONDITIONS FOR LEVEL AUCTIONEER PATRONS
The following General Terms supplement the “Level Online Auction Agreement” (the “Agreement”) as an integral part thereof. Capitalized terms used in this document and not otherwise defined have the same meaning as in the Agreement.
1. The Website; License. Level provides the Website and the auction software contained on the Website (the “Software”) on a software-as-a-service basis. The Software is licensed, not sold, and is licensed only in accordance with the terms of the Agreement and these General Terms (collectively, the “Contract”). Subject to the terms of the Contract and the payment to Level of the compensation described on the Pricing Exhibit, Level grants to Customer a non-exclusive, limited, revocable license (the “License”) to use the Software through the Website for the purpose of facilitating Auctions. Level or Level’s licensor remains the sole owner of all right, title, and interest in the Software and the Website (collectively, the “Virtual Auction Platform”), including without limitation all patent, trademark, copyright and other intellectual property rights. Level reserves all rights to the Virtual Auction Platform not granted under the Contract. Included within the License is the right of Customer to use and reproduce Level’s trademarks for the sole purpose of promoting the Auctions and the Website.
2. Details and Limitations of License.
(a) Customer will not: (i) use the Virtual Auction Platform for any purpose other than those expressly authorized under the Contract; (ii) sublicense, transfer, or assign its License rights in the Virtual Auction Platform to any third party; (iii) translate, reverse engineer, de-compile or disassemble the Virtual Auction Platform to develop any other computer program or for any other reason; (iv) copy, port, or duplicate by any means the Virtual Auction Platform, without the prior written consent of Level, except to the extent reasonably necessary to maintain backup or historical documentation or to test, implement, or use the Virtual Auction Platform. Customer will cause all proprietary, confidential, copyright, trademark and/or patent notices, markings, or legends which appear on any item included in the Virtual Auction Platform to be placed upon each such copy or duplication; (v) circumvent technological measures intended to control access to the Virtual Auction Platform, including the sharing of log-in information or the negligent failure to maintain the confidentiality of log-in information; or (vi) develop, distribute, or use with the Virtual Auction Platform products that circumvent such technological measures.
(b) Customer is solely responsible for obtaining any software or products required for its use of the Virtual Auction Platform, including any operating system software, database software, or third-party applications software.
(c) Customer may not misuse the Virtual Auction Platform. Specifically, but without limitation, Customer shall not: (i) use the Software or Website to construct any kind of database other than the database that is part of the Software and Website; (ii) access or attempt to access the Virtual Auction Platform by any means other than the interface provided in the Website; (iii) circumvent any access or use restrictions put into place to prevent certain uses of the Virtual Auction Platform; (iv) share content or engage in behavior that violates anyone’s Intellectual Property Rights (“Intellectual Property Rights” being copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.); (v) share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful; (vi) impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity; (vii) use the Virtual Auction Platform to engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages; (viii) market or advertise any products or services through the Virtual Auction Platform other than real and personal property to be sold at Auction (but Customer may include its name, address, contact information, website, and similar information in its postings); (ix) use any data mining or similar data gathering and extraction methods in connection with the Virtual Auction Platform; (x) violate any applicable law through use of the Virtual Auction Platform or (xi) use the Virtual Auction Platform to sell or solicit the sale of any property other than through an Auction. In the event that Customer uses the Virtual Auction Platform to sell or solicit the sale of any property other than through an Auction, Customer shall be liable to Level for the fee that the sale of such property would have generated had such property actually been sold in an Auction, and such actions shall constitute a material breach of the Contract.
3. Warranties of Customer. Customer warrants that (a) it is the owner of all data, photographs, descriptions, and information uploaded to the Website (“Lot Information”), or is otherwise authorized do upload the same and to grant to Level the rights described in the Contract without any violation of the Intellectual Property Rights of another person; (b) that all property to be sold at any Auction has been duly consigned to Customer for sale in accordance with all laws applicable to Customer; (c) that Customer or Customer’s agents are duly authorized or licensed to engage in the business or professional of an auctioneer in each jurisdiction necessary to enable the Auction to proceed, or are exempt from such a requirement; (d) that the person executing the Agreement on behalf of Customer is duly authorized to do so; and (d) that all information furnished to Level or input into the Website is true, complete, and accurate.
4. Level Warranty.
(a) Level warrants that it has all Intellectual Property Rights necessary to establish the Virtual Auction Platform and to license the same to Customer under the License.
(b) The Virtual Auction Platform is provided “AS-IS”. Level will use commercially reasonable efforts to implement and maintain the Virtual Auction Platform, such that it functions adequately to permit the conduct of Auctions and conforms to any documentation provided in connection with the Virtual Auction Platform. Level does not warrant that the Virtual Auction Platform will be error-free, but Level will use commercially reasonable efforts to correct errors that interfere materially with the conduct of Auctions. Customer acknowledges that the Virtual Auction Platform may not be operational at any given time for various reasons, including repairs, maintenance, upgrades to the application, and many causes that are not within the control of Level, including without limitation power failures, defects in third-party equipment, and acts of God. To the maximum extent permitted by law, and other that as described in the previous portion of this paragraph, Level disclaims all warranties express or implied, including the implied warranties of merchantability and fitness for a particular purpose. Level further disclaims any warranty (a) that the Virtual Auction Platform will meet Customer’s requirements or will be constantly available, uninterrupted, timely, or secure; (b) concerning the results that may be obtained from the use of the Virtual Auction Platform; (c) that the quality of the Virtual Auction Platform will meet Customer’s expectations; (d) that the Virtual Auction Platform will be compatible with Customer’s other software products or hardware, or those of any Bidder; or (e) that any errors or defects in the Virtual Auction Platform will be corrected. Customer’s use of the Virtual Auction Platform is at Customer’s own discretion and risk, and Customer is solely responsible for any damage to Customer’s computer system or loss of data that results from the use and access of Virtual Auction Platform.
5. Limitation of Liability
(a) The Virtual Auction Platform cannot function without internet service. Level is not liable to Customer or any Bidder in the event that bids cannot be sent or received due to the lack of or loss of internet service at the locations where the bids are being sent or received.
(b) Before using the Virtual Auction Platform for an Auction, Customer is responsible for insuring that the Virtual Auction product functions in a manner that is satisfactory to Customer for conducting the Auction. If Customer has any concerns that the Virtual Auction Platform may not function properly, then Customer must take such measures (if any) as Customer deems appropriate to allow Bidders to participate. In no event will Level be responsible for making alternate arrangements for bids to be made or received.
(c) EXCEPT AS PROVIDED IN THE INDEMNIFICATION SECTION BELOW, LEVEL IS NOT LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF LEVEL HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE DAMAGES (A) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE, (B) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (C) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE VIRTUAL AUCTION PRODUCT. NOTHING IN THE CONTRACT LIMITS OR EXCLUDES LEVEL’S LIABILITY TO THE EXTENT OF LEVEL’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, OR FOR DEATH OR PERSONAL INJURY.
(d) LEVEL'S TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THE CONTRACT (INCLUDING THE INDEMNIFICATION OBLIGATION DESCRIBED IN SECTION 6(b) BELOW, BUT EXCLUDING THE INDEMNIFICATION OBLIGATION ARISING FROM SECTION 6(a) BELOW) IS LIMITED TO US $100 OR THE AGGREGATE AMOUNT THAT CUSTOMER PAID FOR THE VIRTUAL AUCTION PRODUCT DURING THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF LEVEL OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(e) ALTHOUGH LEVEL’S INDEMNIFICATION OBLIGATION UNDER SECTION 6(a) IS NOT SUBJECT TO THE LIMIT CONTAINED IN SECTION 5(d), LEVEL’S LIABILITY FOR ALL OTHER DAMAGES FOR BREACH OF THE WARRANTY CONTAINED IN SECTION 4(a) ABOVE (INCLUDING, SPECIFICALLY, CUSTOMER’S DIRECT DAMAGES) IS LIMITED BY THE PROVISIONS OF SECTION 5(d) ABOVE AND TO THE SPECIFIC REMEDIES CONTAINED IN SECTION 6(a)(i), (ii), AND (iii) BELOW.
(a) Intellectual Property Indemnification by Level. Level will defend through counsel of its own choice, indemnify, and hold Customer harmless against any third party claim brought against Customer, its directors, officers, members or employees to the extent that the action is based on a claim, suit, or proceeding that the Virtual Auction Platform, including any documentation or other materials supplied by Level, infringes such party’s Intellectual Property Rights (an “Infringement Claim”). In the event of any such Infringement Claim, Level may, at its option: (i) purchase a license to permit Customer to continue using and promoting the Virtual Auction Platform as contemplated hereunder; (ii) modify or replace the relevant portions of the Virtual Auction Platform with non-infringing products or services of substantially equivalent performance within a reasonable period of time; or (iii) terminate the Contract immediately and reimburse Customer all fees paid for the Virtual Auction Platform.
(b) Other Indemnification by Level. Level will defend through counsel of its own choice, indemnify, and hold Customer harmless against any third party claim brought against Customer, its directors, officers, members or employees to the extent that the action is based on a claim, suit, or proceeding alleging Level’s gross negligence or intentional misconduct in the performance of Level’s obligations under the Contract.
(c) Indemnification by Customer. Customer will defend through counsel of its own choice, indemnify, and hold harmless Level and the officers, directors, affiliates, and employees of Level from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees and costs, and reasonable costs of investigation, resulting from Customer’s (i) material breach of any obligation, duty, representation, or warranty of the Contract; or (ii) negligent act or omission, or intentional misconduct, in the execution of its obligations under the Contract, or the conduct of any Auction.
(d) Procedures for Indemnification. Upon receiving notice of any claim covered by the indemnity obligations set forth in this section, the party seeking indemnity (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of the claim. Indemnifying Party may assume sole control of the defense of any such claim. Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. If the Indemnified Party does not participate in the investigation and defense of the claim, Indemnified Party shall provide the Indemnifying Party reasonable assistance regarding such claim at the Indemnifying Party’s expense. Indemnifying Party will pay those costs and damages, including reasonable attorneys’ fees, awarded against the Indemnified Party by a court of competent jurisdiction in any such action that is specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Unless such settlement is solely for monetary damages for which the Indemnified Party is fully indemnified hereunder, the Indemnifying Party shall not settle any such claim without the Indemnified Party’s prior, written consent, which shall not be unreasonably withheld or delayed.
7. Termination of Agreement. Customer may stop using the Virtual Auction Platform at any time. Either party may terminate the Contract in writing at any time by written notice to the other for any reason or for no reason. Termination shall not affect financial obligations accrued under the Contract before the effective date of the termination. If Level terminates the Contract other than for Customer’s material breach thereof, or if Customer terminates the Contract by reason of a rejection of a change in the terms of the Contract, then Customer may not create any new Auctions, but may complete previously scheduled Auctions under the terms of the Contract in effect at the time of the delivery of notice, and the effectiveness of the termination shall be delayed until the completion of obligations related to such previously scheduled Auctions.
8. Cooperation; Compliance with Law. Each party to the Contract shall cooperate with the other in a commercially reasonable manner in the conduct of the Auctions and to enable the discharge of their respective obligations under the Contract. Each party will comply with all laws applicable to its business and related to such parties obligations under the Contract.
(a) Each party (for this purpose, the “Receiving Party”) will, and will cause its personnel or assistants, to hold and deal with all information provided to it by the other party (the “Disclosing Party”) for the purpose of performing the parties’ obligations under the Contract, in strict confidence. Except as expressly provided in Section (c) below, all such information will constitute “Confidential Information” and will include without limitation: (a) information relating to the business of the other party (for this purpose, the “Disclosing Party”), including without limitation information about unannounced products and services, and financial information; and (b) any nonpublic personal information (“NPI”) or personally identifiable information (“PII”) that it may obtain, maintain, process, or otherwise receive from, through or on behalf of the other, as applicable, in connection with this Contract (the "Customer Information"); (c) information and reports generated by a Disclosing Party pursuant to this Contract; proprietary methodologies, techniques, technical knowledge and data, computer programs and source code. To the extent applicable, NPI will be defined as provided in Title V of the Gramm-Leach-Bliley Act, Public Law 106-102 and PII as defined by the National Institute of Standards and Technology).
(b) Handling Requirements of Confidential Information. To the extent applicable, each party hereby agrees that:
(i) it shall comply with all applicable federal and state security and privacy laws and regulations for the handling, processing and protection of Customer Information; and
(ii) it has implemented and will maintain a written information security policy. Such policy will comply with all applicable laws and regulations pertaining to the protection of Customer Information and is designed to ensure the security and confidentiality of such Customer Information, protect against any anticipated threats or hazards to the security or integrity of such information, protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer, and ensure its proper disposal.
(c) Confidential Information does not include information that is: (i) approved for release or disclosure without restriction by the Disclosing Party in writing; (ii) publicly known or becomes publicly known, so long as it is not through the acts or omissions of the Receiving Party (or someone under the Receiving Party’s control) that it is or becomes publicly known; (iii) rightfully received by the Receiving Party from a third party without restriction and without violation of any agreement; (iv) independently developed by the Receiving Party without reference to the Disclosing Party’s confidential information; (v) legally required to be disclosed by the Receiving Party under a requirement of a governmental agency or court of law having jurisdiction, but only if (A) the Receiving Party provides the Disclosing Party with prompt notice prior to disclosure so that the Disclosing Party may seek judicial protection and (B) the Receiving Party discloses only that information which, in the reasonable opinion of its counsel, is required to be disclosed; (vii) information about Lots in an Auction, or other information about an Auction, that Level publicizes in accordance with customary auction practices for the purpose of encouraging bids at such Auction; or (viii) information about an Auction (such as selling prices, photographs, and descriptions for Lots) that becomes publicly known in the normal course of conducting the Auction on the Virtual Auction Platform.
(d) The Receiving Party shall protect the Disclosing Party’s Confidential Information that is in the Receiving Party’s possession or control using at least the same means it uses to protect its own Confidential Information, but in any event not less than reasonable means.
(e) Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under this Contract. The provisions of this section will survive the expiration or termination of this Contract.
11. License for Lot Information. Customer grants to Level a perpetual, non-exclusive, royalty-free, worldwide license to the Lot Information. Such license includes the right of Level to publish, re-publish, exploit, use, modify, create derivative works from, sublicense, reproduce, display, transmit, distribute internally or externally, and sell the Lot Information.
12. Choice of Law and Forum Selection. This Contract shall be governed by the laws of the Commonwealth of Virginia, excluding the choice of law provisions thereof. Any suit for the breach of the Contract, or for the construction thereof, shall be brought only in the appropriate state or federal courts sitting in Harrisonburg, Virginia. All parties consent to the personal jurisdiction of such courts, and waive any objections to venue therein.
13. Assignment. Neither party may assign this Contract without the prior written and discretionary consent of the other party, except, with prior written notice, either party may assign this Contract to any entity under common control or ownership, or to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Contract pertains, whether by purchase of stock, assets, merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Contract. For purposes of this Section, the term “control” shall mean direct or indirect ownership of 50% or more of the stock or other voting equity interests entitled. This Agreement shall be binding upon, and shall inure to the benefit of, the permitted legal successors and permitted assigns of the respective parties hereto.
14. Notices. Any notices required or permitted to be given hereunder shall be deemed to have been properly given if sent by United States certified or registered mail, return receipt requested, postage prepaid, by reputable overnight courier service, or by facsimile if a fax number is provided, or by e-mail, if an e-mail address is provided, or if delivered in hand by hand delivery, as follows:
If to Level:
61 South Main Street, Suite 200
Harrisonburg, Virginia 22801
If to Customer:
At the contract information that appears in the Agreement
or to such other persons or addresses as the parties may hereafter direct by written notice. Notices (except those by facsimile, by e-mail or by hand delivery), shall be deemed delivered three (3) days after being deposited with the United States Postal Service or one (1) day after being deposited with reputable overnight courier service. Facsimile notices and e-mail notices, if an e-mail address is provided, shall be deemed delivered upon dispatch. Hand delivered notices shall be deemed delivered upon actual delivery to the person noted above.
15. Late Payments. Amounts due to Level under the Contract but unpaid within thirty (30) days of the conclusion of the Auction resulting in such charges (“Late Amounts”) shall bear interest at the rate of one percent (1%) per month from the due date, compounded monthly. If any Late Amounts are outstanding, Level may suspend Customer’s access to the Website and disable public access to Customer’s Auctions through the Website. In the event that Level takes legal action to collect from Customer any Late Amounts, in addition to the Late Amounts and any interest due thereon, Customer shall pay reasonable attorneys’ fees and other costs of collection of such Late Amounts.
16. Miscellaneous Provisions.
(a) Merger; No Oral Modifications. Except as otherwise specifically provided herein, the Agreement (including the Pricing Exhibit(s) and these General Terms contain the entire agreement of the parties, and may only be modified by an agreement in writing and signed (initialed, in the case of Pricing Exhibits) by both parties.
(b) Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be valid as an original. Facsimile and electronic signatures shall be valid as originals. It is not necessary that each party sign each original, so long as each party has signed at least one original.
(c) Waivers. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.
(d) Severability. If any provision of the Contract is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Contract shall remain enforceable.
(e) Third Party Beneficiaries. There are no third party beneficiaries to the Contract. For the avoidance of doubt, neither any Bidder nor any owner of property consigned in an Auction is a third party beneficiary of this Contract.
(f) Headings. The headings of the various paragraphs and sections in this Agreement are provided for convenience only, and shall not be used for the interpretation thereof.
(g) No Presumption Against Drafter. No presumption or rule shall apply that requires the construction or interpretation of the Contract against the party whose attorneys drafted this Contract.
(h) Force Majure. Neither party shall be liable to the other, or shall be deemed to be in breach of the Contract, in the event that such party’s failure to comply with Contract or perform hereunder, or a party’s delay in performance, is due to causes beyond such party’s reasonable control. Such causes include, without limitation, acts of God, acts of civil or military authority, fires, floods, other natural disasters, suspension of trading on national securities markets, epidemics, acts or war or terror, riots, strikes, and transportation delays. The affected party shall immediately notify the other party and shall use commercially reasonable efforts to resume performance as soon as practicable.
(i) Independent Contractors. The parties intend to be independent contractors. Nothing in the Contract creates any relationship other than that of independent contractors. The parties state that they are not partners, fiduciaries, joint venturers, and do not have any employment relationship or principal-agent relationship with one another.
(j) Taxes. Customer is solely responsible for the computation, collection, reporting, and remittance of any taxes incident to (i) Customer’s business or (ii) the sale of property through an Auction. Customer warrants to Level that it will timely comply with all tax obligations incident to the sale of property in an Auction.