Buyer Terms of Service

These Buyer Terms of Service (these "Buyer Terms") are a binding agreement between you ("Buyer,""you," or "your") and Spoiler Alert, Inc. ("SpoilerAlert," "we,", “our” or "us"). Spoiler Alert provides an online service (the “Service”) that offers the sale of distressed, excess or obsolete inventory (“Excess Inventory”) from certain sellers (the “Sellers”) to a private, curated network of liquidation outlets (collectively, “Buyers”) through Spoiler Alert’s online platform (“Platform”).

THESE BUYER TERMS TAKE EFFECT WHEN YOU ACCESS OR USE THE SERVICE OR SUBMIT AN OFFER TO BUY EXCESS INVENTORY (THE "EFFECTIVE DATE"). BY ACCESSING OR USING THE SERVICE OR SUBMITTING AN OFFER TO BUY EXCESS INVENTORY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE BUYER TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE BUYER TERMS AND THAT YOU HAVE THE LEGAL AUTHORITY TO BIND YOUR ORGANIZATION; AND (C) ACCEPT THESE BUYER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE BUYER TERMS. IF YOU DO NOT ACCEPT THESE BUYER TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE OR THE PLATFORM. YOUMAY ALSO NOT ACCESS THE SERVICE OR THE PLATFORM IF YOU ARE A COMPETITOR OF SPOILER ALERT, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.

1. Intermediary Services

Spoiler Alert is an intermediary that provides the Service through which you may purchase Excess Inventory from Sellers. Spoiler Alert does not sell Excess Inventory and is not a party to any purchase and sale transaction, but merely provides the Platform through which a purchase and sale may be transacted between you and a Seller. Spoiler Alert does not inspect, and makes no representations or warranties regarding, any Excess Inventory. Further, Spoiler Alert does not endorse any Seller or Buyer and makes no representations or warranties regarding any Seller or Buyer. You should exercise caution, read all details about the Excess Inventory provided by Sellers, and use your independent judgment before purchasing Excess Inventory from such Sellers through the Service.

2. Sales of Excess Inventory

For the avoidance of doubt, the sale of a Seller’s Excess Inventory to you occurs between you and Seller. Spoiler Alert is not responsible for insuring any Seller or any buyer for the quality, safety, legality, or distribution of a Seller’s Excess Inventory. The Seller shall be solely responsible for the packaging, handling, loading, unloading, and insuring items of Excess Inventory that are tendered to any Buyer, and Spoiler Alert shall have no responsibility or liability with respect thereto. Except as otherwise set forth in these Buyer Terms, all sales are final and refunds are not permitted.

3. Content

Unless otherwise noted, all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained in the Service is owned, controlled or licensed by or to Spoiler Alert and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights. Spoiler Alert and the Spoiler Alert logos and designs are trademarks, service marks or trade dress of Spoiler Alert and may not be used in connection with any product or service that is not Spoiler Alert‘s or in a manner that is likely to cause confusion among customers. All other trademarks and service marks not owned by Spoiler Alert that appear in the Service or on the Platform are the property of their respective owners. Access to the Services or Platform does not confer and shall not be considered as conferring upon anyone any license under any of Spoiler Alert’s or any third-party’s intellectual property rights. Spoiler Alert reserves all rights not expressly granted herein. Except as expressly provided in these Buyer Terms, no part of the Service or Platform and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, or distributed in any way to any other computer, server, website or another medium for publication or distribution or for any commercial enterprise, without Spoiler Alert’s express prior written consent.

4. Listing Data

As part of the Service, we may provide you access to data, information, and content relating to Excess Inventory available for sale, including without limitation current and historical item listings, descriptions, selling prices, values, and other related information, materials, and content (“Listing Data”). You may access and use Listing Data only in order to assist you in purchasing, via the Service, the Excess Inventory to which such Listing Data relates (the “Permitted Uses”). With respect to Listing Data, you will not, and you will not permit any third party to, use any Listing Data in any manner or for any purpose other than the Permitted Uses, without Spoiler Alert’s prior express written consent. For clarity, and without limiting the foregoing, the following activities are not permitted: (a) recording, copying or storing any Listing Data in any manner or for any purpose whatsoever, other than for the Permitted Uses; (b) directly or indirectly publishing, transmitting or distributing Listing Data, or any derivative works thereof including reports or other analyses regarding the secondary market, in any manner for any form of monetary or other valuable consideration; (c) using or referencing Listing Data in connection with any securities trading activities; or (d) incorporating Listing Data in any manner into used product pricing tools, dashboards, spreadsheets or other visualization products.

5. Restrictions

In connection with your use of the Service and the Platform, you will not, and you will not assist, permit or enable others to, do any of the following:
‍
(a) disassemble, reverse engineer, decode or decompile any part of the Service or the Platform, including, without limitation, the online bidding engine and algorithmic pricing tools;
‍
(b) use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Service or the Platform;
‍
(c) display, mirror or frame the Service or the Platform, or any individual element within the Service or the Platform, Spoiler Alert’s name, any Spoiler Alert trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Spoiler Alert’s express written consent;
‍
(d) copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of the Service or the Platform, the Content or any of our intellectual property;
‍
(e) take photos, screenshots or other images of the Service or the Platform or otherwise extract reports and other output of the Service or the Platform, other than records of your listing registrations and past purchases that you take via any download and related functionality provided on the Service or the Platform;
‍
(f) use the Service or the Platform in a manner that impacts the stability of our servers, the operation or performance of the Service or the Platform or any other user’s use of the Service or the Platform, or the behavior of other applications using of products or services;
‍
(g) use the Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or users;
‍
(h) use the Service or the Platform in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
‍
(i) use the Service or the Platform for benchmarking or competitive analysis of the Service or the Platform;
‍
(j) attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Service or the Platform;
‍
(k) interfere with or damage the Service or the Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, ﬂood pings, denial-of-service attacks, packet or IP spooﬁng, forged routing or electronic mail address information or similar methods or technology;
‍
(l) impersonate another person or misrepresent your aﬃliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Service or the Platform for any invasive or fraudulent purpose, including, for example, for domain spooﬁng or other forms of phishing;
‍
(m) bypass the measures we may use to prevent or restrict access to the Service or the Platform or enforce limitations on use of the Service or the Platform or the content therein, including without limitation features that prevent or restrict use or copying of any Content;
‍
(n) identify us or display any portion of the Service or the Platform on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights;
‍
(o) identify or refer to us or the Service in a manner that could reasonably imply an endorsement, relationship or aﬃliation with or sponsorship between you or a third party and us, other than your permitted use of the Service or the Platform under these Buyer Terms, without our prior express written consent; engage in any form of shill bidding, including collusion, bid manipulation and bidding on items that you, or a party aﬃliated with you, are selling;
‍
(p) arrange for or engage in transactions or payments for Excess Inventory outside of the Service or Platform, or contact a seller for the purpose of circumventing the Service or Platform;
‍
(q) misuse, exploit or abuse our dispute policies or take other action that in our sole discretion overburdens, misuses, exploits or abuses the Service or the Platform; or
‍
(r) post, publish or otherwise communicate any content or message that is defamatory, oﬀensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, or is violent or threatening or promotes violence or actions that are threatening to any other person.

6. Compliance

You acknowledge and agree that Spoiler Alert is not required to determine whether the Excess Inventory sold through the Service (i) complies with all laws, rules and regulations, including but not limited to, safety, labeling, testing, warning, import/export, and/or other consumer protection law requirements; (ii) does not infringe upon the intellectual property, publicity or other rights of others; (iii) does not contain false, inaccurate or misleading information; (iv) are allowed to be sold from the Seller's jurisdiction and/or into your jurisdiction; and/or (v) are allowed to be sold by you from your jurisdiction into your customer's jurisdiction. You agree to conduct the necessary due diligence for compliance and suitability of Sellers and their Excess Inventory. You hereby release Spoiler Alert from any liability with respect thereto, and agree to indemnify, defend and hold Spoiler Alert harmless for any claims.

7. Changes to the Service

Spoiler Alert reserves the right, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Service, or any portion of the Services for any reason; (2) to modify or change the Service, or any portion of the Service, and any applicable policies or terms; and (3) to interrupt the operation of the Service, or any portion of the Service, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

8. Right to Refuse

You acknowledge and agree that any Seller and/or Spoiler Alert may refuse to complete your purchase at any time for any reason.

9. Inventory Availability

You acknowledge and agree that Spoiler Alert does not guarantee availability of any Excess Inventory or that there will be enough Excess Inventory to sell to you.

10. No Circumvention

You acknowledge and agree that you will not influence any Sellers, or otherwise circumvent any Seller’s process or the Service, by transacting orders with Sellers you were introduced to through the Service outside of the Service. Failure to comply with this provision may result in temporary suspension or permanent termination of your access to Services and your ability to purchase products on Spoiler Alert in the future.

11. Ownership of Excess Inventory

Each Seller is the lawful owner of the Excess Inventory they sell as part of the Service. In no event shall Spoiler Alert be deemed to own the Excess Inventory nor shall title to any of the Excess Inventory be deemed to be transferred to Spoiler Alert by virtue of these Buyer Terms. Title to the Excess Inventory shall be retained by the applicable Seller until such time as the Excess Inventory is sold to you and delivered to you or to a common carrier, in which case title to such Excess Inventory shall pass to you of such Excess Inventory.

12. Risk of Loss or Damage

Each Seller assumes all liabilities associated with its Excess Inventory, including risk of loss or damage until such Excess Inventory item is sold and delivered to you. Spoiler Alert bears no liability for Excess Inventory while in transit, regardless of who arranges the freight.

13. Discrepancies or Quality Issues

You must report any discrepancies or quality issues within five (5) days of receipt of your order. If an order is fully refunded due to damage or quality issues, Seller will be responsible for the cost of the freight. If an order is adjusted or only partially refunded, Buyer will remain responsible for the cost of the freight. If an order is fully refunded due to damages or quality issues, Spoiler Alert will not take any commission. If an order is adjusted or only partially refunded, Spoiler Alert will take a commission based on the final, adjusted GTV.

14. Disputes

If there is a dispute between you and any Seller relating to the Excess Inventory or the purchase and sale thereof through the Service, you will be solely responsible for handling such disputes directly with the applicable Seller. You agree that Spoiler Alert is under no obligation to become involved in any such disputes or to handle such disputes on your behalf. You hereby release Spoiler Alert, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Service. You agree to cooperate with Spoiler Alert and any relevant Seller on any disputes related to the sale of Excess Inventory, including outcomes whereby Seller agrees to credit or reimburse such Buyer via Spoiler Alert.

15. Failure to Accept Delivery

If you refuse delivery when the designated carrier attempts to make delivery of any Excess Inventory, you assume any risk of loss or damage to the Excess Inventory when the carrier attempts delivery. In that event, you are still liable for the full payment of the Excess Inventory that the carrier attempted to deliver, and you are liable for any additional costs attributable to your failure to take delivery, including storage costs.

16. No Warranty

TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY EXCESS INVENTORY ITEM SOLD BY SPOILER ALERT IS BEING SOLD ON AN "AS IS - WHERE IS" BASIS, WITHOUT ANY WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SA SHALL NOT BE LIABLE FOR LOSS OF REVENUES OR PROFITS, INCONVENIENCE, EXPENSE FOR SUBSTITUTE GOODS OR SERVICES, STORAGE CHARGES, LOSS OR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY THE USE OR MISUSE OF, OR INABILITY TO USE THE ITEM SOLD. CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO SPOILER ALERT, BUYER AND BUYER'S PROPERTY AND TO OTHERS AND THEIR PROPERTY ARISING OUT OF USE OR MISUSE OF, OR INABILITY TO USE THE ITEM SOLD.

17. Limitations of Liability

IN NO EVENT WILL SPOILER ALERT BE LIABLE UNDER OR IN CONNECTION WITH THESE BUYER TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER SPOILER ALERT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SPOILER ALERT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE BUYER TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY BUYER TO SPOILER ALERT FOR SERVICES IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

18. Insurance

Each Seller shall be responsible for maintaining any and all insurance on the Excess Inventory. In no event shall Spoiler Alert be responsible for obtaining any insurance or paying any insurance premium to insure the Excess Inventory.

19. Modifications

We reserve the right, from time to time, with or without notice to you, to change these Buyer Terms in our sole and absolute discretion. If we make material changes to these Buyer Terms, we will notify you by email, or by means of a notice on our Service. The most current version of these Buyer Terms will supersede all previous versions. Your continued use of the Service following the posting of changes indicates your agreement to and acceptance of the changes. We will indicate the date on which these Buyer Terms were last changed at the beginning of these Buyer Terms.

20. Entire Agreement

These Buyer Terms, together with our Privacy Policy and any other legal notices published by Spoiler Alert constitute the entire agreement between you and Spoiler Alert with regard to your use of the Service as a Buyer. Spoiler Alert’s failure to insist on or enforce strict performance of these Buyer Terms shall not be deemed a waiver by Spoiler Alter of any provision or any right it has to enforce these Buyer Terms. Any such waiver must be in writing in order to be eﬀective.

21. Force Majeure

In no event shall either party be liable to the other party, or be deemed to have breached this Buyer Terms, for any failure or delay in performing its obligations under these Buyer Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

22. Choice of Law; Venue

These Buyer Terms are governed by the laws of the State of Delaware. All disputes arising from or related to these Buyer Terms or the Service must be submitted to the exclusive jurisdiction of the courts sitting in the State of Delaware and any claim must be brought within six months of its discovery.

23. Waiver of Jury Trial

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE BUYER TERMS OR THE SERVICE (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THESE BUYER TERMS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

24. Severability

If any provision of this Agreement is found to be void, voidable, null, unenforceable, this shall not affect the existence and scope of the other provisions of this Agreement, which shall continue in effect.

25. Third-Party Beneficiaries

There are no third-party beneficiaries to these Buyer Terms.

26. Conflicting Terms

These Buyer Terms and any additional terms set out herein and incorporated herein by reference contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to the subject matter. Unless otherwise mutually agreed in writing, in the event any terms or conditions in these Buyer Terms conflict or are inconsistent with any terms or conditions in any attached or incorporated agreement, then the terms and conditions of these Buyer Terms shall control.

27. Headings

The headings which divide these Buyer Terms into sections, and which precede each clause, are for ease-of-reference only, and are not intended to affect the existence or scope of the contractual obligations created by these Buyer Terms.

‍

ADDITIONAL TERMS APPLICABLE TO TRANSACTION SERVICES

The following terms shall apply to you if you are using Spoiler Alert’s Transaction Service (“Transaction Service”) where Spoiler Alert facilitates payments. Spoiler Alert’s Transaction Service includes generating purchase orders and sending invoices to Buyers on Seller’s behalf, as well as collecting payment from Buyers and transferring the net, undisputed proceeds to Seller.
‍

1. Buyer Verification

To purchase Excess Inventory through using the Transaction Service, you must complete Spoiler Alert buyer verification (“Buyer Verification”) through Spoiler Alert’s payments processing partner, New Money Company (“New Money”). To qualify for Buyer Verification, you must have a credit check completed by Spoiler Alert through Allianz SE, its insurance partner, in which a credit limit will be established for your business (the “Credit Limit”). When applying for Buyer Verification, you must provide accurate and complete proﬁle information and you will be required to submit a resale certiﬁcate or similar documentation applicable to your jurisdiction that conﬁrms your entity as a reseller (“Certiﬁcate”). By submitting such Certiﬁcate, you hereby authorize Spoiler Alert, and hereby provide Spoiler Alert a continuing authorization and consent, to utilize and replicate, as applicable, such Certiﬁcate and the e-signature aﬃxed thereto as necessary to conﬁrm reseller status for all applicable transactions and purchases through the Transaction Service. You must have a valid Reseller Certificate on file for each state to which Installments will be shipped. In the event you have provided an address in a state for which you do not have a Reseller Certificate, you must obtain and share the relevant certificate prior to fulfillment. Spoiler Alert reserves the right to revoke your access to the Transaction Service at any time if we find that you are in breach of these Buyer Terms. If Spoiler offers you the option to enter bids directly into the platform via a buyer account, you are solely responsible for the activity that occurs on your Buyer Account, and you must keep your password(s) secure.

2. Purchase Price; No Offset

The purchase price for any order is detailed in the award form. In no event are you authorized or allowed to deduct any amounts from the amounts owed Spoiler Alert, unless specifically authorized in writing by Spoiler Alert.

3. Payment

You must issue a purchase order within two (2) business days of award receipt to complete a sale. If prepayment is required, you must issue payment within two (2) business days of invoice receipt to complete a sale. Default payment terms will be defined by Spoiler Alert as part of the sales process and may be dependent upon many factors, including but not limited to the Seller’s terms, the Buyer’s approved Credit Limit, the Buyer’s credit history, or the type of Excess Inventory being sold. Spoiler Alert uses New Money for payment processing and disbursement of funds to Sellers. You acknowledge and agree that Spoiler Alert may share information about Buyer with New Money in order to complete a transaction. You acknowledge and agree that if you fail to make timely payment, you will not be able to access Spoiler Alert opportunities until all outstanding invoices have been paid. Any amount not paid within thirty (30) days of the due date will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, and will commence accruing on the date of the invoice.

4. Approved Payment Methods

All payments will be executed via ACH or wire through Spoiler Alert's payments processing partner, New Money. Spoiler Alert shares your information with New Money in accordance with our Privacy Policy. Information shared with New Money is treated by New Money in accordance with its Terms of Service available here: https://newmoneycompany.com/legal/terms. If you would like to make a purchase in excess of your Credit Limit, you will be required to prepay Spoiler Alert via ACH or wire transfer.

5. Requirements for Confirming Receipt

For orders where Buyer elects to arrange their own freight, Buyer is responsible for sharing the Proof of Delivery with Spoiler Alert within one (1) business day of order receipt.

6. Taxes

You acknowledge and agree that you are solely responsible for the collection and remittance of any taxes, including sales taxes, as well as any other payments or filings required under applicable law. You hereby release Spoiler Alert with respect thereto, and agree to indemnify, defend and hold Spoiler Alert harmless against any and all such taxes, contributions, penalties and/or interest.

‍

ADDITIONAL TERMS APPLICABLE TO FREIGHT SERVICES

The following terms shall apply to you if you are using Freight Services (“Freight Services”) offered by Spoiler Alert’s partner NFI Industries, Inc. (“NFI”) to arrange freight.
‍

1. NFI Terms

The use of Freight Services are subject to NFI’s Shipper Terms and Conditions, as may be amended from time to time by NFI. NFI’s Shipper Terms and Conditions are available here: https://www.nfiindustries.com/shipper-terms/.

2. Shipping Quotes

Buyer is responsible for the final cost of Freight Services associated with their load. The final cost of Freight Services may or may not match the initial quote depending on the services required (e.g., loads requiring accessorials may incur additional fees).