LEVEL PARTNERS, LLC
TERMS OF SERVICE FOR LEVEL PARTNERS AUCTION PLATFORM SERVICES
(CONTRACTED USER)
Level Partners, LLC ("Level") provides its service to Customer ("Customer") subject to the following Terms of Service ("TOS") and Level's Privacy Policy for its Level online services, together with any provisions (if any) in Customer’s order form (the “Order Form”) and the provisions of any separate written and fully executed agreement (a “Separate Contract”) among Customer and Level (this TOS, the Privacy Policy, the Order Form, and any Separate Contract, collectively, the “Agreement”). In addition, when using specific Level online services, Customer and Level will be subject to any guidelines or rules applicable to these services, which Level may communicate to Customer or post at www.LevelAuctions.com from time to time. These guidelines or rules shall be deemed part of the Agreement. Moreover, if you are engaging in certain types of auctions or in auctioning certain types of property (for instance, firearms), Level may require you, in addition, to execute a rider to these TOS; any such rider shall also be part of these TOS and, accordingly, part of the Agreement.
1. DESCRIPTION OF THE SERVICES
Level currently provides users with a marketplace model online auction platform and management services, including a platform that allows persons to bid on Customer’s auctions (collectively, the “Online Platform”). Level may also, at Customer’s request, agree to provide clerking or data entry services (“Clerking”). The Online Platform and any Clerking are referred to herein collectively as the "Services". Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including any new Level online services, will be subject to the TOS.
Without limiting the generality of the foregoing, Level is not responsible for the accuracy of item descriptions displayed to Bidders during an auction. In addition, without limiting the generality of the foregoing, Level is not responsible for the accuracy of the payment or other information that a Bidder furnishes to Customer through the Online Platform.
2. WHAT CUSTOMER OR BIDDERS MUST DO TO USE THE SERVICES
The Online Platform is Internet-based, and offered on a software-as-a-service basis. In order to use the Online Platform, Customer and Bidders must obtain access to the Internet and pay any service fees associated with such access to the Internet service provider that Customer or such Bidders utilize. Customer or Bidders must also provide all computer or other equipment necessary to make such connection, at their own cost, and are also responsible for the maintenance of such equipment.
In order to facilitate the Online Auctions, Level shall create a unique URL within the Website for Customer’s Online Auctions, and shall list each Online Auction in the appropriate spot on the general portions of the Website. The Website will permit Customer to upload lots for each Online Auction (“Lots”) with pictures, description, opening bid, and other pertinent terms. Bidders may use the Website to log in and cast bids in the Online Auction. Bidders’ use of the Website shall be subject to Level’s Terms of Use for Online Bidders, which Level may alter or amend from time to time, but which shall always contain commercially reasonable terms. At Customer’s option, the Website will integrate with Customer’s physical, real-time auction processes to enable live bidding and online bidding simultaneously.
Customer shall be responsible for (a) delivery of each Lot to the winning Bidder; (b) collection of payment from the winning Bidder for each Lot; and (c) notification to the Bidders of any buyer’s premiums or other terms and conditions pertinent to the Auction (other than the terms of use for Level’s Bidder software). Unless Customer retains Level personnel to do so, Customer shall be responsible for coordinating all clerking and other pre-sale and post-sale auction process.
Pricing is described on the attached Pricing Exhibit. Customer shall be invoiced monthly according to the Pricing Exhibit for all Auctions concluded in the previous month. Invoices will be payable within thirty (30) days of the invoice date. The parties may replace or supplement the Pricing Exhibit at any time with a new Pricing Exhibit, initialed by the parties. Invoices must be paid within 30 days in order to maintain access to services on the platform.
Level will provide clerking and logistics services for an auction appearing on the Website for an additional cost as described on the Pricing Exhibit. By signing this agreement, Customer agrees that neither Level nor its independent contractors will be held liable for the validity of item descriptions or any other information written in the auction catalogs. Level does not write auction descriptions.
3. CUSTOMER AND BIDDER REGISTRATION INFORMATION MUST BE ACCURATE, CURRENT AND COMPLETE
In consideration of Customer’s use of the Services, Customer agrees that Customer will, and will require each individual User (defined below) of the Services and each Bidder, to: (a) provide true, accurate, current and complete registration information about as prompted by the registration form of the Services (such information, the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If any Registration Data is untrue, inaccurate, not current or incomplete, or if Level has reasonable grounds to believe that such Registration Data is untrue, inaccurate, not current or incomplete, and is not corrected within 5 business days of Level’s notification to Customer about such circumstance, Level has the right to suspend or terminate the access of that User or Bidder. Customer will not permit any User to impersonate any other person in accessing or using the Services, or to otherwise misstate or misrepresent the affiliation or identity of a User.
4. CUSTOMER’S OBLIGATION TO PAY FEES
Customer agrees to pay all applicable subscription, service and use fees that Level charges Customer for the Services. Customer agrees to pay all costs (including reasonable attorney's fees), if any, incurred by Level in collecting overdue fees from Customer. Customer may choose to prepay subscription fees annually by check or authorize Level to automatically transfer funds electronically each month from Customer’s bank account. In the event an authorized electronic funds transfer is rejected (due to insufficient funds, a closed account, or for any other reason), Customer agrees to reimburse Level for any fees that its financial institution charges for such rejected transaction, and to pay a $50 administrative fee to compensate Level for its increased administrative costs in collecting the amount due. Customer also agrees to pay all foreign, federal, state and local sales or use taxes (if any) applicable to Customer’s access, use or receipt of the Services. Level may add any applicable VAT to the amounts due, as required or permitted by law.
5. TERM; TERMINATION
A. Level shall provide the Services, and the parties’ mutual rights and obligations shall be in effect, until Customer or Level permissibly terminates the Agreement (the period between the date of the Order Form and the termination of the Agreement is the “Term”).
B. If Customer terminates the Agreement for its convenience during the Initial Term, Customer shall be liable for any fees due through the balance of the Initial Term. Customer may terminate the Agreement for its convenience effective on any date after the end of the Initial Term upon sixty (60) days’ written notice to Level. Customer may also terminate the Agreement for Level’s material breach thereof by written notice to Level, provided that Customer shall have provided Level thirty (30) days’ notice of such default and an opportunity to cure such default.
C. Unless provided otherwise in a Separate Contract, Level may terminate the Agreement (and discontinue the provision of the Services to Customer) (a) for its convenience, upon sixty (60) days written notice to Customer; or (b) immediately upon written notice to Customer for Customer’s material breach of the Agreement. Provided, however, that before invoking its right to terminate under the preceding clause (b), in the case of (i) Customer’s first default as to a payment obligation in any twelve (12) month period, Level shall have provided ten (10) days’ written notice of its intent to terminate, and an opportunity to cure such payment default; or (ii) in the case of other non-payment defaults that do not immediately jeopardize the security of the Services or place Level in immediate jeopardy of violating applicable law, Level shall have provided thirty (30) days’ notice of such default and an opportunity to cure such default. No cure period shall apply to a second or subsequent default as to payment obligations within a single twelve (12) month period.
D. Upon a termination under this Section 5, the provisions of Section 19 shall apply.
6. ACCESS, PASSWORDS AND SECURITY
Customer may designate its own employees and agents, who will have access to the functions of the Online Platform for the purpose of managing Customer’s auctions (not to act as Bidders), as users (“Users”) under Customer’s License (defined below). Customer will be responsible for the confidentiality and use of the user name(s) and password(s) of Users. Customer will be responsible for all electronic communications, including User registration and other User information, e-mail, auction information, and other data ("Electronic Communications") entered through or under the user name(s) and password(s) of the Users. Level will act as though any Electronic Communications it receives under the user name(s) of Users will have been sent by the User indicated. Customer agrees immediately to notify Level if Customer becomes aware of any loss or theft or unauthorized use of any of the user name(s) and/or password(s) of any User.
7. ELECTRONIC COMMUNICATION BETWEEN CUSTOMER AND LEVEL
The Services allow Users to send Electronic Communications directly to Level and interact within applicable areas of the Services. Electronic Communications include Customer’s auction and other data that Customer sends through the Services, or that Level processes are part of the Services (the "Data"). Customer acknowledges and agrees to the following with respect to use of Electronic Communications through the Services:
A. Level shall be entitled, but is not obligated, to review or retain Electronic Communications for compliance with the TOS and the security of the Services. Level may also review or retain Electronic Communications for other reasons that Level believes in good faith will improve the quality of the Services;
B. Level may disclose Electronic Communications if required to by law or in the good-faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Agreement; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of Level, its employees or agents, or others; provided, however, that before making a disclosure to comply with legal process, Level will notify Customer and, in the event such a disclosure is requested pursuant to legal process, will provide Customer with a reasonable opportunity to resist such disclosure at Customer’s cost, and in Customer’s sole discretion, before making such disclosure;
C. Customer agrees to provide Level an e-mail address for each User, promptly to provide Level with any changes to such e-mail addresses, and to accept Electronic Communications from Level at the e-mail addresses specified;
D. Customer agrees that Level may provide notices, statements and other communications of a non-legal nature to Customer solely through e-mail at the e-mail address associated with the system administrator or billing contact, as appropriate.
8. SECURITY OF DATA TRANSMISSION
To access the Services, Users and Bidders must use software produced by third parties, including but not limited to, with respect to the Online Platform, "browser" software that supports a data security protocol compatible with the protocol used by Level. Until notified otherwise by Level, Customer and Customer’s Users must (a) use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Level and (b) follow Level's logon procedures for Services that support such protocols. Customer acknowledges that Level is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such third-party software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. Customer acknowledges that it is possible that Electronic Communications may be accessed by unauthorized third parties when communicated between Customer and Level using the Internet, other network communications facilities, telephone or any other electronic means. Customer understands that the technical processing and transmission of the Services, including Customer’s Electronic Communications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
9. GENERAL PRACTICES REGARDING USE OF THE SERVICES
Customer acknowledges that Level may establish reasonable general practices and limits concerning use of the Services. Customer further acknowledges that Level reserves the right to alter or amend these general practices and limits at any time, upon notice as provided in Section 21 below.
Other than as described above, Level may establish commercially reasonable terms and conditions, and general practices and limits, and other terms of service that apply to Bidders, and may require such Bidders to agree to such terms through a “click-through” or “check box” license procedure.
Customer agrees that the amount of personal information that Customer collects and inputs as part of Customer’s use of the Services shall be limited to the amount reasonably necessary to accomplish Customer’s legitimate business purposes, or to comply with applicable local, state, or federal regulations.
10. CUSTOMER OBLIGATIONS
A. Customer will not, and will not permit any User or other person within Customer’s organization, to use any Service or Electronic Communication for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening, or to solicit other Level customers for any purpose, or to solicit any other person for any purpose other than to purchase property to be sold at auction on the Online Platform;
B. Customer will not, and will not permit any User or other person within Customer’s organization, to upload, post, reproduce or distribute any Electronic Communication, information, software or other material when doing so would violate the intellectual property rights of any person;
C. Customer will not, and will not permit any User or other person within Customer’s organization, to in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Level
D. The Customer shall be responsible for all materials used or displayed by the Customer through the Services, and all Customer’s acts or omissions that occur in connection with the Services or with a User’s username or password. Customer warrants that it has all necessary authorizations or permissions to permit it, or its Users, to upload and share any content or other Data that it enters into the Online Platform.
E. The Customer is allowed to make any and all press releases and other public announcements related to its participation in the Services and subsequent transactions between Level and the Customer, and that mentions Level by name, including the method and timing of such announcements. Level reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of the Customer's obligation regarding public announcements shall be a material breach of its agreement with Level.
F. Customer agrees that it will not engage in any activities, or input any materials into the Services:
1. That constitute or encourage a violation of any applicable law or regulation;
2. That impersonate or invade the privacy of any third party or entity;
3. That infringe on the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others;
4. That are in any way connected with the transmission of "junk mail," "spam" or the unsolicited mass distribution of e-mail, text messages, or other communication methods, or with any unethical marketing practices; or
5. That are obscene, vulgar, offensive, dangerous, or otherwise inappropriate to the purpose for which the Services are being used.
G. Customer will not use, or permit the use of, the Services for any data mining or similar data gathering and extraction methods, or use the Services to construct any kind of database other than the database included within the Online Platform.
H. Customer will not attempt, and will not permit any User to attempt, a circumvention of any access or use restrictions put into place to prevent any use of the Online Platform.
11. SERVICES AND SUPPORT
A. SUPPORT: The Customer can obtain assistance with any technical difficulty that may arise in connection with the Customer's utilization of the Services by requesting assistance by e-mail to help@levelauctions.com Level reserves the right to establish limitations on the extent of such support and the hours during which it is available.
B. CONSULTATIONS: Telephone consultation may be available on a per case basis.
C. BACKUP SERVICES: Level shall provide backup services during the Term using commercially reasonable procedures.
D. UPDATES: Level shall periodically release updates to the Services through software updates or otherwise. Updates shall be deemed accepted by Customer upon Level providing access to such update.
E. DOWNTIME: Customer acknowledges and agrees that the Services may be inaccessible for a period of time for purposes of maintenance, installation, update implementation, replacements, backup, or modifications of the Services.
F. ADDITIONAL SERVICES: Customer has the right to request additional professional services from Level. Upon Level’s acceptance of such request, Level shall provide Customer with the specified professional services. All professional services performed shall be subject to the discretion of Level and shall be deemed delivered by Level and deemed accepted by Customer upon performance, and shall be detailed in an Order Form or Separate Contract, but shall otherwise to subject to the provisions of this Agreement.
12. SECURITY AND STORAGE OF DATA
The security of Data may be maintained through the use of data encryption, data security protocols, passwords and other methods which Level may employ, or which Level may suggest or require that Customer employ. Such encryption, protocols, passwords, and other methods have inherent weaknesses which may result in a breach of security notwithstanding their careful and non-negligent use. Customer agrees that provided Level has followed all such encryption, protocols, and methods that it has prescribed in its internal security policies, Level has no responsibility or liability either for the deletion or failure to store any Data transmitted by Customer or anyone else to the Services or the operation, or failure, or weakness, of any data encryption, data security protocols, passwords or other security methods employed by Level.
13. LEVEL'S PROPRIETARY RIGHTS
Customer acknowledges and agrees that the Online Platform constitutes proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Online Platform, in whole or in part. Customer agrees not to reproduce, duplicate, copy, sell, resell, sublicense, or otherwise exploit any portion of the Online Platform, use of the Online Platform, or access to the Online Platform.
Subject to all conditions contained in the Agreement and the full payment of fees due to Level, Level hereby grants Customer a non-transferable, non-exclusive and terminable right and license (the “License”) to use the Services; provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Online Platform, or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Services. Customer agrees not to modify the Online Platform in any manner or form, or to use modified versions of the Online Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Services. Customer agrees not to access the Online Platform by any means other than through the interfaces that are provided by Level for use in accessing the Online Platform.
By purchasing the Services, Customer grants Level permission to process the Data to perform the functions contemplated through the Services, as modified from time to time, and in accordance with the terms of this TOS, the Privacy Policy, the Order Form, and any Separate Contract.
14. TRADEMARK INFORMATION
"Level," the Level logo, and other Level trademarks, service marks, logos and product and service names are marks of Level (the "Level Marks"). Customer is allowed to use the Level logo to add to their website in order to show bidders where to navigate to bid.
As part of the Services, Level provides a standard design template for the Online Platform. By default, no custom design work will be included in the building of any Online Platform unless such work is specifically required under an Order Form or Separate Contract. A separate fee will apply to any such work. Customer grants to Level a nonexclusive, nontransferable license during the Term to reproduce, manipulate, copy, and distribute its own logo, trade dress, trademarks, and service marks to the extent necessary to fulfill Level’s obligations under this Agreement.
15. DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
A. CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LEVEL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXCEPT AS DESCRIBED IN PARAGRAPH 15(B) BELOW), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B EXCEPT AS SET FORTH BELOW, LEVEL MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; NO SUCH WARRANTY IS IMPLIED BY ANY PROVISION OF THIS TOS, THE ORDER FORM, OR THE PRIVACY POLICY. NOWWITHSTANDING THE FOREGOING, LEVEL SHALL KEEP THE SERVICES PERFORMING IN CONFORMITY WITH THEIR DOCUMENTATION IN ALL MATERIAL RESPECTS AND WILL CORRECT VERIFIABLE AND REPRODUCIBLE ERRORS RELATED TO THE SERVICES WHEN REPORTED TO LEVEL IN ACCORDANCE WITH LEVEL’S USUAL AND CUSTOMARY SUPPORT PROCEDURES, WHICH LEVEL MAY AMEND FROM TIME TO TIME. AN ERROR CORRECTION, WHEN COMPLETED, MAY BE PROVIDED IN THE FORM OF A “TEMPORARY FIX,” CONSISTING OF SUFFICIENT PROGRAMMING OR INSTRUCTIONS TO IMPLEMENT THE ERROR CORRECTION. FOR THE PURPOSES OF THIS PARAGRAPH, AN “ERROR” IS ANY FAILURE OF THE SERVICES TO CONFORM TO THEIR DOCUMENTATION IN ANY MATERIAL RESPECT. AN “ERROR CORRECTION” IS EITHER A MODIFICATION OR ADDITION THAT, WHEN MADE OR ADDED TO THE SERVICES, BRINGS THE SERVICES INTO CONFORMITY WITH THEIR DOCUMENTATION IN ALL MATERIAL RESPECTS OR A PROCEDURE OR ROUTINE THAT, WHEN OBSERVED IN THE REGULAR OPERATION OF THE SERVICES, AVOIDS THE PRACTICAL ADVERSE EFFECT OF SUCH NONCONFORMITY.
C. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM LEVEL, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
D. NO FINANCIAL, LEGAL, OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY THE SERVICES.
E. THE SECURITY MECHANISM INCORPORATED IN THE SERVICES HAS INHERENT LIMITATIONS AND CUSTOMER MUST DETERMINE THAT THE SERVICES ADEQUATELY MEETS ITS REQUIREMENTS. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDED LEVEL HAS FOLLOWED ALL ENCRYPTION, PROTOCOLS, AND METHODS THAT IT HAS PRESCRIBED IN ITS INTERNAL SECURITY POLICIES, ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT ITS OWN DISCRETION AND RISK AND THAT THE CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
F. THE CUSTOMER AGREES NOT TO RESELL OR ASSIGN OR OTHERWISE TRANSFER ITS RIGHTS OR OBLIGATIONS UNDER THESE TOS WITHOUT THE EXPRESS PRIOR WRITTEN AUTHORIZATION OF LEVEL.
G. NEITHER LEVEL NOR THE CUSTOMER SHALL BE LIABLE TO THE OTHER FOR ANY DELAY OR FAILURE IN PERFORMANCE UNDER THESE TOS RESULTING DIRECTLY OR INDIRECTLY FROM FORCE MAJEURE EVENTS INCLUDING, BUT NOT LIMITED TO: NATURAL DISASTER; TERRORISM; RIOT; SABOTAGE; LABOR DISPUTES; WAR; PANDEMIC; FAILURE OF THE INTERNET NETWORK; ANY ACTS OR OMISSIONS OF ANY GOVERNMENT OR GOVERNMENTAL AUTHORITY; DECLARATIONS OF GOVERNMENTS; OR TRANSPORTATION DELAYS.
H. ANY PROFESSIONAL SERVICES TO BE PROVIDED BY LEVEL, INCLUDING BUT NOT LIMITED TO TRAINING, CONSULTING, AND DATA CONVERSION SERVICES HEREUNDER, IF ANY, SHALL BE PERFORMED ON A BEST EFFORTS BASIS AND SHALL CONFORM TO THE STANDARDS GENERALLY OBSERVED IN THE INDUSTRY FOR SIMILAR SERVICES.
I. BEFORE USING THE ONLINE PLATFORM FOR AN AUCTION, YOU ARE RESPONSIBLE FOR ASSURING THAT SUCH APPLICATIONS FUNCTION IN A MANNER THAT IS SATISFACTORY TO YOU FOR CONDUCTING THE AUCTION. IF YOU HAVE ANY CONCERNS THAT THE ONLINE PLATFORM MAY NOT FUNCTION PROPERLY, THEN YOU MUST TAKE SUCH MEASURES AS YOU DEEM APPROPRIATE TO ALLOW BIDDERS TO PARTICIPATE. IN NO EVENT WILL LEVEL BE RESPONSIBLE FOR MAKING ALTERNATE ARRANGEMENTS FOR BIDS TO BE MADE OR RECEIVED.
16. LIMITATION OF LIABILITY
IN NO EVENT WILL LEVEL BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEMS) EVEN IF LEVEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR WHETHER SUCH DAMAGES OR LOSSES ARE REASONABLY FORESEEABLE. CUSTOMER AGREES THAT THE LIABILITY OF LEVEL ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE, IN ANY WAY CONNECTED WITH THE SERVICES OR THE AGREEMENT, WILL NOT EXCEED THE SUBSCRIPTION FEE AMOUNT CUSTOMER PAID TO LEVEL DURING THE THREE (3) MONTHS IMMEDIATLY PRECEEDING THE DATE SUCH CLAIMED DAMAGE OR INJURY OCCURRED. Level shall not be liable for any loss resulting from a cause over which Level does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to Customer’s computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or Customer’s telephone or telephone service; unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes; failure of Customer to cooperate with the reasonable requests of Level that are consistent with this TOS and related to the Services; breach of the Agreement by Customer; misuse of the Service by Customer or third parties; or any other events reasonably beyond the control of Level. Level is not responsible for any damage to Customer’s computer, software, modem, telephone or other property resulting from Customer’s use of the Services. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING IN ANY WAY, LEVEL IS NOT RESPONSIBLE FOR ANY DAMAGES THAT CUSTOMER, A CONSIGNOR OF CUSTOMER, OR A BIDDER MAY INCUR ON ACCOUNT OF A MISSED BID OR A FAILURE OF THE ONLINE PLATFORM TO FUNCTION FOR ANY REASON, WHETHER FOR A REASON DESCRIBED ABOVE, OR FOR ANY OTHER REASON, ABSENT LEVEL’S INTENTIONAL MISCONDUCT. The parties acknowledge that the relative risk assumed by Level under this limitation of liability is essential to the pricing structure for which Level has contracted with Customer, such that if Level were to assume a risk of liability in excess of the amounts contained in this paragraph, the amount that Level would have charged Customer for the Services would have been considerably higher than the amount that Level has actually charged. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
17. CUSTOMER’S INDEMNITY OBLIGATION REGARDING THIRD PARTY CLAIMS
A. Customer (as the “Indemnifying Party”) shall defend, indemnify and hold Level and its employees, officers and agents (collectively, the “Indemnified Parties”) harmless from any third party judgments, damages, liabilities, amounts paid in settlement, awards, fines, penalties, disbursements, costs and expenses (including witness fees, expert fees, investigation fees, travel expenses, bonds, the cost of establishing the right to indemnification under this Section 17, costs of investigation, court costs and reasonable attorney’s fees), to which the Indemnified Party may be subjected, become liable to pay, suffer or incur in any threatened or actual claim, allegation, suit, subpoena, action or proceeding (whether completed, actual, pending, threatened, civil, criminal, investigative, administrative, meritorious or without merit) (collectively, “Liabilities”) to the extent such Liabilities arise from (i) the breach of any obligation, warranty, or representation in this TOS; or (ii) from the negligent act or omission of an Indemnifying Party or its suppliers or subcontractors.
B. Where the facts or the law relating to any threatened or actual claim would preclude the Indemnified Party from being completely indemnified by the Indemnifying Party, the Indemnified Party will be partially indemnified by the Indemnifying Party to the fullest extent permitted by the law.
C. The Indemnified Party agrees to (i) give the Indemnifying Party prompt written notice of such suit or claim, (ii) grant the Indemnifying Party sole control of the defense or settlement of such suit or claim (provided, however, that the Indemnifying Party shall not agree to any settlement that requires the Indemnified Party to pay damages, admit liability, suffer any other adverse consequence, or resolves a claim without a full release of liability in favor of the Indemnified Party without the Indemnified Party’s prior written consent) and (iii) reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in its defense or settlement of the suit or claim. The Indemnified Party shall not settle any such claim, action, suit or proceeding without the prior consent of the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party shall have the option, at its own expense, to participate in the defense thereof with counsel of its own choosing.
D. The indemnification obligations of this paragraph 17 apply only to a third party’s assertion of a Liability against Level, and not to disputes between Customer and Level.
18. SURVIVAL OF CERTAIN PROVISIONS
The sections of this TOS with the following headings shall survive the termination of the Agreement: SECURITY AND STORAGE OF DATA, LEVEL’S PROPRIETARY RIGHTS, TRADEMARK INFORMATION, DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, CUSTOMER’S INDEMNITY OBLIGATION REGARDING THIRD PARTY CLAIMS, SURVIVAL OF CERTAIN PROVISIONS, EFFECT OF TERMINATION, LINKS, NOTICES, GENERAL PROVISIONS. Termination of the Agreement shall not affect any payment obligation that Customer has to Level on the date of such termination. Portions of a Separate Contract may also survive the termination of the Agreement in accordance with the provisions of the Separate Contract.
19. EFFECT OF TERMINATION
Upon any termination (whether for convenience, or on account of a party’s breach), Customer agrees that Level, in its sole discretion, may terminate Customer’s use of the Services, remove and discard any Electronic Communications within the Services, and immediately deactivate or delete all Users’ usernames and passwords and all related information and files in the Services and/or bar any further access to such files or Services. Notwithstanding the foregoing, upon a termination Level will use commercially reasonable efforts to return Data to Customer electronically, in an appropriate format selected by Level, as promptly as is reasonably possible after such termination, provided Customer has complied with the Agreement and has paid in full all amounts owed to Level, and provided that Customer notifies Level in writing of its desire to receive such Data no later than the final day of the Term or, in instances where Level terminates the Agreement on account of a second or subsequent payment default, no later than ten (10) days following the end of the Term. Further, Customer agrees that Level shall not be liable to Customer or any third party for any permissible termination of access to the Services; provided, however, that if Level terminates the Agreement for its convenience, or if Customer terminates the Agreement for convenience after the Initial Term, Level will refund the pro rata portion of any fee that may have been paid by Customer for the portion of the Services not furnished to Customer as of the date of such termination.
20. LINKS
The Services may provide, or third parties may provide, links to other Internet sites or resources. Because Level has no control over such sites and resources, Customer acknowledges and agrees that Level is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Customer further acknowledges and agrees that Level shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
21. NOTICES
Notices to Customer from Level may be made by either e-mail or regular mail. Level may provide notices regarding legal matters (including, without limitation, notice of changes to the TOS or Privacy Policy, modification or termination of the Services or the Agreement, and notices of breach of the Agreement) by e-mail to Customer at the notice address contained in the Order Form, or if there is no Order Form, to any e-mail address that Level has regularly used to communicate with Customer. Level may also provide such notices by physical mail to the physical address that appears for Customer on Level’s records. Customer may update any such e-mail or physical addresses by notice in writing to Level from time to time.
22. MODIFICATIONS
Level may modify the TOS upon notice to Customer in accordance with paragraph 21. If Level sends Customer notice of a modification, Customer confirms its acceptance of the modification by continuing to use the Services. If Customer chooses not to accept the proposed modification to the TOS, Customer may terminate the Agreement (even if such termination occurs during the Initial Term of such an Agreement) and receive a prorated refund of any fixed fees prepaid on account of such Initial Term.
23. GENERAL PROVISIONS
The Agreement constitutes the entire agreement between Customer and Level and govern Customer’s use of the Services, superseding any prior agreements between Customer and Level with respect to the subject matter contained in the Agreement. The TOS may only be modified or amended as set forth above in Section 22 or otherwise in a writing (including a Separate Contract) signed by Level and Customer. In the event that Customer has a Separate Contract with Level, the terms of the Separate Contract shall control over the terms of the TOS, Privacy Policy, and Order Form to the extent inconsistent; the remaining terms of the TOS, Privacy Policy, and Order Form shall remain binding on the parties. The Agreement and the relationship between Customer and Level shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. Any action among Customer and Level related to the Services, including without limitation any action for the breach of the Agreement or for the construction thereof, or for the collection of any amounts due to Level for the provision of Services, may be brought only in the state or federal courts sitting in Harrisonburg, Virginia; Customer consents to the personal jurisdiction of such courts and waives any objection to venue therein. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Section titles in the Agreement are for convenience only and have no legal or contractual effect. Customer may execute this Agreement electronically pursuant to the provisions of Virginia Code 59.1-479 et seq., or any successor provision.
