Terms & Conditions
AUCTION MOBILITY PLATFORM LICENSE AGREEMENT
TERMS AND CONDITIONS
Auction Mobility, LLC (“Auction Mobility”) and Customer have entered into a License Agreement (“License Agreement”) pursuant to which Auction Mobility grants Customer rights to access and use the Licensed Platform pursuant to the terms of such License Agreement. The License Agreement, together with these Terms and Conditions (collectively the “Agreement”), govern Customer’s access to and use of the Licensed Platform and related products and services, and are effective upon the Effective Date.
BY EXECUTING THE LICENSE AGREEMENT, CUSTOMER AGREES THAT IT HAS READ AND UNDERSTANDS, AND AGREES TO THESE TERMS AND CONDITIONS. If Customer does not accept these Terms and Conditions, it must not execute the License Agreement.
Capitalized terms used but not defined in these Terms and Conditions have the meanings ascribed to them in the License Agreement.
PLEASE PRINT THESE TERMS AND CONDITIONS FOR YOUR RECORDS.
1.1 License Grant. Subject to the payment of the License Fees and the other limitations and restrictions contained in this Agreement, Auction Mobility hereby grants to Customer, and Customer hereby accepts, a personal, non-transferable and non-exclusive license (i) to access and use the Licensed Platform and any output generated from Customer’s authorized use of the Licensed Platform in each case solely for Customer’s own business purposes and in accordance with all applicable laws, and further subject to the terms and conditions of this Agreement; and (ii) to allow its authorized customers and end users (“End Users”) to access and use the Licensed Platform for purposes of doing business with Customer and in accordance with all applicable laws. The grant of rights hereunder to the Licensed Platform is not a sale of the Licensed Platform or any portion thereof.
1.2 License Restrictions. The limited license granted in Section 1.1 is subject to the following restrictions: (a) no provision of this Agreement is intended to grant Customer a license under any Auction Mobility intellectual property rights except as specifically permitted in Section 1.1, and no license is granted to Customer by implication or estoppel; (b) Customer shall not reverse engineer, disassemble, decompile, otherwise attempt to derive the source code of the Licensed Platform, or separate the contents of any Licensed Platform or permit others to do any of the foregoing; (c) Customer shall not use any software or scripts run against Auction Mobility servers that cause the server load to reach beyond a reasonable level, as determined by Auction Mobility; (d) Customer shall not run any stress-test against any API of the Licensed Platform without prior written consent from Auction Mobility; and (e) Customer shall not sublicense the Licensed Platform (except that Customer may grant access to the Licensed Platform to End Users), or (f) use the Licensed Platform for time-sharing, rental, outsourcing, or service bureau use. Customer may not: (i) use the Licensed Platform to send or store material containing software viruses, worms, Trojan horses or other harmful computer code; (ii) interfere with or disrupt the integrity or performance of the Licensed Platform or the data contained therein; (iii) attempt to gain unauthorized access to the Licensed Platform or related systems or networks; (iv) use the Licensed Platform for any benchmarking or competitive purposes; (v) use the Licensed Platform to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Licensed Platform, or copy any ideas, features, functions or graphics of the Licensed Platform; or (vi) aid or permit others to do any of the foregoing. In the event Customer’s use of the Licensed Platform presents a risk to the stability, performance or uptime of Auction Mobility servers, data storage, networking or other infrastructure Auction Mobility may take action to restrict the available resources to maintain acceptable performance.
1.4 License Grant to Published Content. Third party marketing, search engine optimization (SEO) and other promotion and marketing of the Licensed Platform, including through third party sites like Pinterest, requires the licensing of the Published Content. Customer hereby grants to Auction Mobility, its partners and their users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute the Published Content solely for the purposes of operating, developing, providing, marketing, selling and using the Licensed Platform and related products and/or services.
1.5 Customer Obligations. Customer agrees to use the Licensed Platform for its website and its mobile and tablet applications for all auctions during the Term. Customer agrees to advertise and promote the availability of specific components of the Licensed Platform, including but not limited to making the Licensed Platform mobile applications (“Apps”) prominently available for download from its main website, any affiliate websites and making the web portions of the Licensed Platform available from its main website to all of its customers and users to use. Customer shall provide catalogue data uploads for all upcoming sales during the Term.
1.6 Uptime, Backup, Support and Maintenance. The Licensed Platform will be available 99% of the time, measured monthly. Auction Mobility shall provide a redundant hosting environment for the Licensed Platform and Customer Content. Auction Mobility will provide support and maintenance services for the Licensed Platform in accordance with Exhibit B.
1.7 Enhancements, Third-Party Services & Technology. Any requested enhancements to the License Platform shall be agreed upon by both parties in a Statement of Work and billed on a time and materials basis. Customer acknowledges that the availability of an AEMP branded app for Customer under this Agreement from an app marketplace such as Google Play or the Apple App store, requires approval from those third-parties, and a delay or denial of approval does not affect the remaining terms of this Agreement. If Customer requests that Auction Mobility perform services that require Auction Mobility’s use of or access to third-party products or services that are sourced or licensed by Customer (e.g., Apple Developer, iTunes Connect, and Google Play Developer Console), then Customer hereby grants Auction Mobility and its employees and agents the right and license to access and use such third-party products and services on Customer’s behalf, and authorizes Auction Mobility to agree upon or accept any contractual terms and conditions imposed by such third-parties on behalf of Customer, with Auction Mobility acting as an agent of Customer for such purposes. Customer represents, warrants and covenants to Auction Mobility that Customer has secured, at its expense, all third-party licenses, authorizations, approvals and consents necessary to allow Auction Mobility to perform the foregoing activities, and Customer will defend, indemnify and hold harmless Auction Mobility from any and all claims, damages, losses, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to Customer’s breach of such representation, warranty and covenant. In addition, if Customer chooses to use any third-party technology (for example, video switching technology) in connection with its use of the Licensed Platform, Auction Mobility is not responsible or liable for the performance of, or issues arising from the use of that technology. In an effort to reduce any interoperability issues, Auction Mobility requires a consultation with Customer at least two weeks prior to the use of that third-party technology.
2. TERM AND TERMINATION
2.1 Termination. This Agreement shall automatically terminate, without further action of either Party, upon a material violation by Customer of any of the terms and conditions of Section 1. This Agreement is terminable upon five (5) days written notice from Auction Mobility to Customer for Customer’s failure to make payment when due hereunder, unless such payment is made within such five (5) day period. Each party may terminate this Agreement for any material breach by the other party that remains uncured for sixty (60) days from such party’s written notice describing such breach.
2.2 Effect of Termination. Upon termination of this Agreement, Customer shall: (a) cease using the Licensed Platform, and Proprietary Information of Auction Mobility, and cease making the Licensed Platform and the Apps available to End Users; and (b) certify to Auction Mobility within thirty (30) days after termination of this Agreement that Customer has either permanently deleted or returned to Auction Mobility the Licensed Platform and Proprietary Information.
2.3 Survival. Expiration or termination of this Agreement shall not relieve the parties of any obligations accruing prior to expiration or termination (including without limitation Customer’s payment obligations), and without limiting the foregoing, the provisions of Sections 2.2, 2.3, 4, 6, 8, 9, and 10 shall survive any termination or expiration of this Agreement.
3. LIMITED WARRANTIES AND DISCLAIMERS
3.1 Authority. Each party represents and warrants that it has the authority to enter into this Agreement. Customer represents, warrants and covenants to Auction Mobility that Customer has the right to deliver the Customer Content to Auction Mobility and to allow Auction Mobility to use, copy, modify, distribute, display and publicly perform Customer Content and Published Content as permitted in this Agreement.
3.2 Disclaimers. THE EXPRESS WARRANTY MADE BY AUCTION MOBILITY IN SECTION 3.1 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ALL OF WHICH ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. AUCTION MOBILITY DOES NOT WARRANT THAT THE LICENSED PLATFORM WILL BE ERROR OR DEFECT-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR THAT ERRORS CAN OR WILL BE CORRECTED.
Customer shall indemnify, defend and hold Auction Mobility, its licensors and affiliates, and their respective officers, directors, employees and agents, harmless from any losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) Customer’s or its End Users’ use of the Licensed Platform; and (ii) Customer Content, unless such claims are caused by Auction Mobility’s gross negligence or willful misconduct.
If a third party makes a claim against Customer alleging the Licensed Platform (excluding Customer Content) directly infringes any U.S. patent, U.S. copyright, or trademark or misappropriates any trade secret (“IP Claim”), then Auction Mobility will defend Customer against the IP Claim and pay all costs, damages and expenses (including reasonable legal fees and costs) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Auction Mobility arising out of such IP Claim; provided that: (a) Customer promptly notifies Auction Mobility in writing no later than thirty (30) days after Customer’s receipt of notification of a potential claim; (b) Auction Mobility shall assume sole control of the defense of such claim and all related settlement negotiations; and (c) Customer provides Auction Mobility, at Auction Mobility’s request and expense, with the reasonable assistance, information and authority necessary to perform Auction Mobility’s obligations under this Section 5. Customer may not make any admissions or consent to any judgment or settlement in respect of an IP Claim without Auction Mobility’s prior written consent. Auction Mobility shall have no liability for any claim of infringement based on (i) the use of a superseded or altered release of any portion of the Licensed Platform, if the infringement would have been avoided by the use of a current unaltered release of the Licensed Platform, (ii) the unauthorized modification of the Licensed Platform, (iii) the use of the Licensed Platform other than in accordance with the provided documentation and this Agreement, or (iv) Customer Content or Published Content. If, due to an IP Claim or the threat of an IP Claim, (x) the Licensed Platform is held by a court of competent jurisdiction to be infringing, or in Auction Mobility’s reasonable judgment may be held to infringe by such a court, or (y) Customer receives a court order enjoining Customer from using the Licensed Platform, or in Auction Mobility’s reasonable judgment Customer may receive such an order, Auction Mobility may, at its option, (1) replace or modify the Licensed Platform to be non-infringing, provided that the replacement Licensed Platform contains substantially similar functionality; (2) obtain for Customer a license to continue using the Licensed Platform; or (3) terminate this Agreement upon notice. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF AUCTION MOBILITY AND ITS LICENSORS TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL AUCTION MOBILITY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AUCTION MOBILITY HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of Auction Mobility to Customer or any third party for all damages and liabilities arising out of or relating to this Agreement shall not exceed the amount of License Fees paid by Customer to Auction Mobility during the six (6) months immediately preceding the cause of action.
In consideration of the license to the Licensed Platform granted to Customer herein, Customer shall pay the fees and costs in the amounts and at the times specified in this Agreement, including each Statement of Work. Customer shall reimburse Auction Mobility for all reasonable, pre-approved, travel and related expenses associated with the performance of a Statement of Work. All payments shall be made in U.S. Dollars and are nonrefundable and irrevocable. Any amounts due under this Agreement are exclusive of, and Customer shall be responsible for, all taxes, duties, fees, levies and other compulsory payments applicable to the sale and use of the Licensed Platform.
8.1 Definition. The term “Proprietary Information” means information relating to a party’s business, technology, research, development, trade secrets, and other affairs that such party treats as confidential or proprietary and that: (a) is marked “Proprietary Information” if disclosed in writing (including electronically); or (b) is identified as “Proprietary Information” prior to oral disclosure and reduced to writing, marked as “Proprietary Information,” and delivered to the other Party within thirty (30) days of the oral disclosure. Auction Mobility’s Proprietary Information shall include, but not be limited to, the Licensed Platform, formulas, source code, algorithms, methods, know-how, processes, designs, new Licensed Platform components or features, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, third party proprietary information included in the Licensed Platform, and the terms and pricing under this Agreement, regardless of whether such information is marked as “Proprietary Information”. The term “Receiving Party” means a party that receives Proprietary Information of the other party (“Disclosing Party”).
8.2 Restrictions. Receiving Party shall not use the Disclosing Party’s Proprietary Information for any purpose unrelated to this Agreement and shall limit disclosure of Proprietary Information to those of its employees, subcontractors, and consultants with a need to know the Proprietary Information, subject to a nondisclosure obligation comparable in scope to this Section 8. Each party shall protect the other Party’s Proprietary Information by using the same degree of care (but no less than a reasonable degree of care) that it uses to protect its own Proprietary Information. The obligations imposed by this Section 8 shall expire five (5) years after this Agreement’s expiration or termination, provided however that the obligations imposed by this Section 8 shall continue in perpetuity with respect to Auction Mobility’s trade secrets. The terms of this Agreement are both parties’ Proprietary Information but each party may disclose these terms in confidence to its professional advisors, financing sources, insurers, and to third parties in bona fide merger/acquisition discussions.
8.3 Exceptions. The obligations in this Section 8 shall not apply to any Proprietary Information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) is developed independently by the Receiving Party without use of the Disclosing Party’s Proprietary Information, as evidenced by the Receiving Party’s records kept in the ordinary course of its business; (c) is in the Receiving Party’s possession prior to receipt from the Disclosing Party, as evidenced by the Receiving Party’s records kept in the ordinary course of its business; or (d) is rightfully obtained by the Receiving Party from a third party entitled to disclose the information without confidentiality restrictions. A Receiving Party also may disclose Proprietary Information to the extent required by a court or other governmental authority, provided that the Receiving Party promptly notifies the Disclosing Party of the disclosure requirement and cooperates with the Disclosing Party (at the latter’s expense and at its request) to resist or limit the disclosure. The Receiving Party’s breach of this Section 8 could cause the Disclosing Party irreparable injury for which it may not have an adequate remedy at law and for which monetary damages may be difficult to assess. The Disclosing Party shall be entitled to seek injunctive relief in a court of competent jurisdiction in addition to other legal or equitable remedies in the event of a breach or threatened breach of this Section 8 without proving damages and without posting a bond.
9. Protection of Personal Information
9.1 “Personal Information” is information that can identify a specific individual
9.3 To the extent necessary to provide Customer with the Licensed Platform, Customer authorizes Auction Mobility to process, access, and/or collect Personal Information from End Users through the Licensed Platform. Customer remains in control of, and owns the Personal Information.
9.4 Customer represents and warrants that it has the authority to provide Personal Information, and that appropriate consents and disclosures, if necessary, have been provided to End Users to allow Auction Mobility to collect any Personal Information, including the collection of Personal Information directly from customers of Customer.
9.5 Using the Licensed Platform, Customer agrees that Auction Mobility may use the Personal Information solely for the purposes of (i) providing the services associated with the Licensed Platform contemplated in the Terms and Conditions, (ii) maintaining, supporting, evaluating, improving, and/or developing our Licensed Platform, and (iv) as permitted with the End User’s consent solely with respect to such End User’s own Personal Information.
9.6 Auction Mobility personnel shall only have access to Personal Information on a need to know basis in accordance with these Terms and Conditions.
9.7 Customer agrees that Auction Mobility may collect and use, both during and after the term of this Agreement, data derived from Personal Information that has been de-identified and aggregated to reasonably avoid identification of a specific End User or individual for research, analytics, and similar purposes.
9.8 Customer may request that Auction Mobility delete or retrieve End User Personal Information in Auction Mobility’s possession at any time by providing such a request in writing, and we will comply with such a request in a commercially reasonably time unless a specific time is required under applicable law, and then Auction Mobility will comply in that legally required timeframe. Auction Mobility will not respond to requests for access, deletion, or amendment to End User Personal Information directly, but will forward any such requests received to Customer for appropriate response. Auction Mobility will otherwise delete Personal Information within a commercially reasonable time following the end of the term of the Agreement.
9.9 Customer agrees that Auction Mobility may provide access to Personal Information to certain third party service providers which have a legitimate need to access such information in order to provide services to Auction Mobility to (i) support delivery of the Licensed Platform as contemplated in this Agreement, (ii) to ensure legal and regulatory compliance, and (iii) to respond or participate in judicial process or to protect the safety of Auction Mobility or our users. Customer acknowledges that, to the extent permitted by applicable law, Personal Information may be accessed and processed by our third party service providers’ personnel in countries other than the jurisdiction from which the Personal Information was collected, and Customer hereby authorizes such access and processing. All third party services providers involved in the handling, transmitting, and processing of Personal Information will be subject to contractual terms related to data use, disclosure, retention, and data security, that are materially similar to the relevant terms of these Terms and Conditions.
9.10 European Economic Area (EEA) Data Protection: If Customer is subject to the European Union General Data Protection Regulation (“GDPR”) or similar statute in relation to Personal Information Auction Mobility processes on Customer’s behalf, Customer and Auction Mobility will enter into a data protection addendum (“DPA”) in compliance with GDPR including Standard Contractual Clauses as approved by the European Commission. Customer agrees that it is the controller of such Personal Information and that Auction Mobility is the processor of any such Personal Information. Auction Mobility bears no obligation for determining whether Customer is subject to the GDPR or similar statute in relation to Personal Information. If any term in these Terms and Conditions expressly conflict with the DPA, the conflicting term in the DPA shall control.
9.11 Auction Mobility shall not sell, retain, use, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Personal Information for monetary or other valuable consideration. Auction Mobility agrees that it shall act solely as a “Service Provider” under the California Consumer Privacy Act of 2018 (“CCPA”) with respect to any Personal Information, and Auction Mobility shall not take any action that would result in Auction Mobility not acting as a Service Provider under the CCPA with respect to that Personal Information. Without limiting the foregoing, Personal Information shall be used only in the manner contemplated by the Agreement, and shall not be intentionally disclosed to third parties without Customer’s written consent. Auction Mobility shall cooperate with, and provide all necessary information and assistance to, Customer to allow Customer to meet its obligations under the CCPA.
10. GENERAL TERMS
10.1 Assignment. Neither this Agreement, nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part by Customer, and any such attempted assignment shall be void and of no effect without the advance written consent of Auction Mobility. This Agreement shall bind the parties’ successors and permitted assigns.
10.2 Contract Interpretation. All headings in this Agreement are included solely for a convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be construed in a manner designed to effectuate its purpose to the greatest extent possible under applicable law, and the enforceability of other provisions shall not be affected.
10.3 English Language. This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text shall prevail. Any notice given under or in connection with this Agreement shall be in the English language. To the furthest extent permissible under applicable law, the Parties waive any requirement that this Agreement or any related communications be provided in a language other than the English language.
10.4 Notices. All notices and consents sent under this Agreement shall be in writing and: (a) hand-delivered; (b) transmitted by email, with confirmation of receipt; or (c) delivered by prepaid courier. Notices shall be sent to the parties’ respective addresses as indicated on the signature page of the License Agreement, or as updated by one party to the other party from time to time and shall be deemed received on the date of receipt.
10.5 Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other unless expressly authorized herein.
10.6 Modifications. This Agreement may be modified or amended only by a written agreement signed by both parties. No obligations, commitments, representations or warranties made by anyone other than an authorized officer of Auction Mobility shall bind Auction Mobility or be of any force or effect in connection with this Agreement.
10.7 Waiver. The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise.
10.8 Force Majeure. Auction Mobility will be excused from performance for any period during which, and to the extent that it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, communication line failures, and power failures, etc.
10.9 Publicity. Customer agrees that Auction Mobility may announce and promote Customer’s use of the Licensed Platform and this Agreement, including adding Customer’s logo to its website and promotional materials and include Customer as a reference.
10.10 Governing Law and Venue; Arbitration. This Agreement, including its interpretation and any enforcement thereof, shall be governed by the internal laws of Massachusetts without regard to conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties each hereby (a) irrevocably and unconditionally agrees that any dispute, controversy or claim arising from or related to this Agreement or the performance by either party of its obligations hereunder shall be brought by such party exclusively in the state and federal courts of the State of Massachusetts; (b) irrevocably submits to the exclusive jurisdiction of the Massachusetts court; (c) waives any objection to venue in any such action or proceeding in the Massachusetts Courts and/or that the Massachusetts Courts are an inconvenient forum or does not have jurisdiction over any party hereto; and (d) agrees that service of process upon such party in any such action or proceeding shall be effective if notice is given in accordance with this Agreement. Notwithstanding the foregoing, each Party may seek immediate injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek such relief in any court of competent jurisdiction.
If Customer is not a United States entity and if the foregoing venue provision is unenforceable pursuant to the governing law of Customer’s jurisdiction, then any dispute arising from this Agreement will be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce then in effect, by one arbitrator appointed in accordance with such Rules, and such arbitration shall be the exclusive method to settle any dispute relating to this Agreement. The arbitration award, as well as any other decision of the arbitrator (including any conservative or interim measures), shall be final, non-appealable, binding and executory. The arbitration shall be conducted in the English language and it shall have its seat in New York, New York, USA. Judgment on the arbitrator’s decision may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or over such party’s assets, and the parties hereby irrevocably waive any defense and any objection to the exercise of jurisdiction by such courts, based on international comity, improper venue or forum non-conveniens.
10.11 Non-Disparagement. Customer (including without limitation its officers, directors, employees, and agents) shall not take any action or make any statement in the knowledge that these will, or which are intended to, disparage or adversely affect the goodwill or reputation of Auction Mobility or otherwise bring Auction Mobility into disrepute, and shall not engage in any conduct which could reasonably be expected to professionally or personally harm the goodwill or reputation of Auction Mobility (including its former or current officers, directors, employees, and consultants).
10.12 Entire Agreement. The License Agreement and these Terms and Conditions and each Statement of Work together constitute the entire agreement between the parties concerning the subject matter hereof and supersede any prior or separate agreements between the parties concerning such subject matter, and supersede the terms of any Customer purchase order (which terms are rejected by the parties).
(This is your individual Statement of Work (SOW), which will be part of your signed agreement).
Service Level, Maintenance and Support Services
Auction Mobility LLC (“Auction Mobility”) provides these service levels, maintenance, and support services to Customer under the terms of the Platform License Agreement between Auction Mobility and Customer (the “Agreement”). Maintenance and support services include email and telephone support, error corrections, and platform updates as described below.
1. Telephone and Email Support
Customer with a Gavel Elite or Enterprise contract will be eligible for email and telephone support 24 hours a day, 7 days a week, 365 days a year, excluding holidays observed by Auction Mobility.
Note that for Customers holding an auction on an Auction Mobility observed holiday, simply email support with a minimum of 10 business days’ notice to ensure live coverage during your auction. In case of an emergency outside of business hours, please contact your account manager and they will coordinate the support response.
An Auction Mobility support representative shall endeavor to resolve situations where the Licensed Platform does not function in accordance with the specifications (“Errors”) at the time of the initial call or email response. If the support representative cannot resolve the matter while on the call or in the email response, the request for service shall be logged and responded to by an Engineer according to the priority level of the Error. Support includes answering questions and providing a reasonable level of guidance to Customer about the installation and use of the Licensed Platform, responding to reports of Errors in the Licensed Platform, disruptions in the use of Licensed Platform and determining if the reported Error is a result of a problem with the platform or an environmental or installation problem.
The Customer is responsible for providing documentation sufficient for Auction Mobility to understand or reproduce reported Errors including a detailed description of the problem or any other information reasonably requested by Auction Mobility.
Support shall be available from the following sources:
2. Error Corrections
Auction Mobility is committed to correcting Errors in a timely manner. An Auction Mobility support representative will endeavor to resolve suspected Errors at the time of the initial call or email response.
If the support representative cannot resolve the matter while on the call or in the email response, the request for service will be logged and responded to by an engineer according to the priority level of the Error. Note that the response times below are exclusive of the time required by iTunes or Google Play to make updates available. All submissions to iTunes and Google Play are subject to their respective terms and are outside of Auction Mobility’s control.
PRIORITY 1 – The platform has ceased to work or substantially fails. Auction Mobility will allocate a member of its staff to investigate the problem upon notification and will use all commercially reasonable efforts to provide either a practical solution or a work-around within 4 working hours. If this is not achieved, a full-time resource shall be allocated to the problem until either a practical solution or a workaround is provided. Status reports shall be made every four (4) hours for as long as the problem remains unresolved.
PRIORITY 2 – An essential function of the Licensed Platform has ceased to work. Auction Mobility shall allocate a member of its staff to investigate the problem upon notification and shall use all commercially reasonable efforts to provide either a practical solution or a work-around within 2 working days. If this is not achieved, Auction Mobility shall allocate a full-time resource to the problem until either a practical solution or a workaround is provided. Status reports shall be made on a weekly basis for as long as the problem remains unresolved.
PRIORITY 3 – The Licensed Platform is causing a problem that is only having a minor impact on normal operating activities of the Licensed Platform (such as a function of the platform has ceased to work as efficiently as previously). Auction Mobility shall, on request, allocate a member of staff to investigate the problem upon notification and shall use commercially reasonable efforts to provide either a practical solution or a workaround within 5 working days. Status reports shall be made on a weekly basis for as long as the problem remains unresolved.
PRIORITY 4 – There is a minor issue related to the Licensed Platform, perhaps simply annoying in nature or informational. Auction Mobility shall use commercially reasonable efforts to respond to these issues or requests in a timely fashion.
ENHANCEMENT REQUESTS – Enhancements and new feature requests shall be considered for future releases of the platform. Any enhancements shall be subject to the provisions of the License Agreement between Auction Mobility and Customer.
If Auction Mobility reasonably believes that a problem reported by the Customer may not be due to an Error in the Licensed Platform, Auction Mobility shall so notify the Customer, and Auction Mobility shall not proceed further unless so instructed in writing by the Customer. If upon resolution of the problem it is determined that the Error is not a result of an Error in the Licensed Platform, the Customer shall be invoiced for time and materials at Auction Mobility’s then standard rates for the time spent in the resolution process.
Auction Mobility shall have no obligation to provide maintenance and support services for problems that are due to (a) misuse of the Licensed Platform, (b) modification of the Licensed Platform by a party other than Auction Mobility, unless Auction Mobility has authorized such modification in writing, (c) incompatible hardware and/or software, or (d) non-Auction Mobility Licensed Platform or services.
3. Licensed Platform Updates
Auction Mobility shall make available to Customer all upgrades, improvements or modifications of the Licensed Platform that Auction Mobility makes generally available to Auction Mobility customers and does not market as independent Licensed Platforms or modules. From time to time, Auction Mobility may create upgrades, improvements and modifications due to particular circumstances. Such upgrades, improvements, and modifications shall not be deemed to have been made “generally available” to Auction Mobility Customers for purposes of the provisions above. Any updates provided shall be subject to the provisions of the License Agreement between Auction Mobility and Customer.
4. Service Levels
Subject to the terms and conditions of the Agreement, Auction Mobility shall use commercially reasonable efforts to provide to Customer access to the Licensed Platform twenty-four (24) hours a day, seven (7) days a week throughout the Term. Notwithstanding the above, Auction Mobility shall be deemed to have satisfied this Service Level if Customer is able to access the Licensed Platform during ninety-nine percent (99%) of the time on an on-going basis (“Availability”).
Customer acknowledges and agrees that from time to time the Licensed Platform may be inaccessible or inoperable for various reasons, including without limitation periodic maintenance procedures or upgrades (“Scheduled Downtime”) not to exceed two (2) hours in duration or once per month, and shall not conflict with a Customer auction. Auction Mobility shall provide at least three (3) business days’ notice to Customer, which may be provided through electronic notice, in the event of any Scheduled Downtime. Auction Mobility shall use commercially reasonable efforts to schedule its Scheduled Downtime during non-peak periods and outside of standard Auction Mobility support hours, however, downtime, including Scheduled Downtime, may occur during peak periods and within standard Auction Mobility support hours for the purposes of an emergency repair, patches, and the addressing of Auction Mobility critical maintenance and support issues. Scheduled Downtime during any month shall be included in calculations of the Availability.
Customer acknowledges and agrees that from time to time the Licensed Platform may be inaccessible or inoperable for various reasons and causes beyond the reasonable control of Auction Mobility or which are not reasonably foreseeable by Auction Mobility, including without limitation problems of any type occurring at Customer’s physical location, Customer’s failure or inability to access Auction Mobility’s Internet point of presence, negligence or willful misconduct by Customer (collectively, “Unscheduled Downtime”). Auction Mobility shall not be responsible for, or have any liability to Customer that arises out of, Customer’s inability to access or use the Licensed Platform during Unscheduled Downtime.
Such Unscheduled Downtime, beyond the reasonable control of Auction Mobility or which is not reasonably foreseeable by Auction Mobility, shall not be calculated and shall not be included in the determination of the Availably. Auction Mobility shall use commercially reasonable efforts within Auction Mobility’s reasonable control to minimize any disruption, inaccessibility, and/or inoperability of the platform in connection with downtime, whether scheduled or not.