Liquidity Services, Inc. (the "Company"), operator of the Liquidation.com marketplace, provides access to its services ("Service") to individuals, sole proprietors, partnerships, businesses and corporations ("User", "Seller", "Buyer" or "you") subject to the following terms and conditions (the "User Agreement"). Our service is comprised of, but not limited to, our network of online marketplaces that include www.liquidation.com, online services, account management services, and customer support ("Site and Services"). As a condition of using the Site and Services, the Company requires that you review and accept this User Agreement.
BY REGISTERING TO USE THE SERVICE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THIS USER AGREEMENT, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICES OR SITE.
1. COMPANY OBJECTIVE AND SERVICES
1.1. Company Objective
The Company's objective is to provide motivated Sellers with an end-to-end solution to convert surplus assets into cash efficiently and reliably, and to provide qualified professional Buyers with a venue to source surplus goods, on a global scale, at attractive prices.
1.2. Company Services
To fulfill its objectives, the Company has developed a tailored technology and integrated services to liquidate physical assets and ensure the completion of your transactions. Services provided by the Company include, but are not limited to: due diligence and fraud prevention, Seller/Buyer communication tools, payment collection, integrated shipping, warehousing and logistics management, account management tools, dedicated account personnel, marketing, inspection, and many more services (collectively, the .Services.). These services are described in detail in the Services section, as well as the Buyer and the Seller sections of the website.
1.3. Confidentiality & Security
* The Company has developed specific tools that enable qualified potential Buyers and Sellers, registered with the Company, to exchange price details and other information without disclosing their names, or the names of their company in order to protect the Seller's distribution channel policy and to open new markets to qualified Buyers.
* The Company has integrated services related to the closure of the transaction (e.g. due diligence and verification services, logistics and inspection services) to offer the possibility for qualified Buyers or Sellers to remain anonymous throughout the transaction process.
* The Company guarantees that banking or credit card information will be processed by an independent and secure third party. All payment are made through a secure socket layer (SSL), a security protocol that provides data encryption, server authentication, and message integrity for connections to the Internet, to ensure that the data you provide us is not transmitted over the Internet unencrypted and cannot be viewed by unauthorized individuals.
2. USER OBLIGATIONS
The Services are available only to individuals or entities that can form legally binding contracts. Without limiting the foregoing, minors in any jurisdiction may not participate in the Services. The Company reserves the right to review and verify the information provided in your registration application and to, at its sole discretion, postpone or reject your registration approval. When the Company has notified a User that their registration form has been approved, the User will become a "Registered User" and shall be permitted to use the Site and Services. The Company reserves the right, at its sole discretion, to review the status and compliance of any User with the terms of this User Agreement and to suspend or terminate a User's use of the Site and Services without notice.
2.1. User Password
Users select a username and a password, which are subject to the approval of the Company. You agree that you are solely responsible for preserving the confidentiality of your username and your password and all activities and charges related to the use of your password, including unauthorized use. You agree not to furnish your username, password or other information to any other party for use of the Site and Services. Company personnel will never ask you for your password for any reason. You agree to notify the Company immediately of any unauthorized use of your personal password or username and any other breach of security regarding the Services.
2.2. User Information
Each User agrees that all of the information provided in their registration application is timely, true and correct, including, but not limited to, the User's legal name, address, phone number, fax number, e-mail address, and other personal and business information. You agree to promptly notify the Company should the User information provided need to be updated, changed or deleted. Any requested changes to the shipping address must be made within 24 hours of the close of the auction and before payment has been applied to the pending transaction. You understand that your failure to provide accurate and complete information may result in actions taken against you, including without limitation, the immediate suspension or termination of your use of the Services. User understands that email will be the primary medium for Company to communicate information about the auctions.
The Company may, in its discretion, but is not obligated to, monitor material, content and information on the Site, including, but not limited to auction listings and bidding activity, to determine compliance with the terms and conditions of this User Agreement and current and future operating procedures and rules of conduct established by the Company. The Company may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to carry out the terms of this User Agreement, to protect the rights of the Company, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, information, or court order submitted or transmitted to the Company. The Company reserves the right, at its sole discretion and without liability to any User, to amend, edit, remove or otherwise block any material posted by a User which may, in the Company's sole discretion, violate any state, federal or local law or violate any aspect of this User Agreement or in order to limit the Company's liability. However, the Company does not assume responsibility for verifying the material, content and information on its Site and is not responsible for any damages, losses, expenses or other injuries incurred by any User as a result of relying on any material, content and information posted on the Company's Site.
3. SELLER OBLIGATIONS
Users who use the Company's Site to sell assets or merchandise of any kind agree that:
Sellers can submit information about assets or merchandise by using the online "Seller Tools" tool. These tools enable you to include all the relevant information regarding the merchandise that will be necessary to sell (e.g. description, retail value, price, quantity, lot size, shipping information), promote and facilitate the logistic management. This information may be reviewed to ensure its consistency and accuracy and posted upon agreement of our sales team that will tailor the sales strategy to maximize your returns. Prior to any auction activation, the Seller must have a signed Asset Sales Agreement ("ASA").
3.1. Listing Information
Sellers are advised that items that do not receive a bid ("No Bids Auctions") will be tallied by Company on a monthly basis. If the number of No Bid Auctions exceeds thirty percent (30%) of the total number of auctions posted by the Seller the Seller will be responsible for a No Bid Auction fee of $30 per auction in excess of the thirty percent. Sellers who execute an Asset Consignment and Sales Agreement with Company will be exempt from this fee for the first two months after the submission of their executed Asset Consignment and Sales Agreement as they are establishing themselves as a seller on the site.
3.1.1 Items that do not Receive a Bid
Sellers are advised that items that do not receive a bid ("No Bids Auctions") will be tallied by Company on a monthly basis. If the number of No Bid Auctions exceeds sixty percent (60%) of the total number of auctions posted by the Seller beginning in September 1, 2011 through October 31, 2011, the Seller will be responsible for a No Bid Auction fee of $30 per auction in excess of the sixty percent. Beginning November 1, 2011, and continuing thereafter, all No Bid Auctions in excess of thirty percent (30%) for that month will be subject to the No Bid Auction fee. Sellers who execute an Asset Consignment and Sales Agreement with Company will be exempt from this fee for the first two months after the submission of their executed Asset Consignment and Sales Agreement as they are establishing themselves as a seller on the site.
3.2. No Unlawful or Restricted Assets
Sellers agree that they will not attempt to sell any illegal or restricted assets of any kind through the Company's Site and Services, including, without limitation, all counterfeit goods, drugs, guns, pornography, munitions, hazardous waste, non-metal scrap or any other item, the Company, in its sole discretion, deems to be unlawful or restricted. Restricted assets are those that generally require a special license or permit by a governmental agency or authority in order to sell, such as a federal firearms license or a hazardous materials handling or storage permit.
3.3. Offer to Sell
Upon posting an asset for sale, Seller represents, warrants and agrees that it is irrevocably offering to sell the listed assets to any Buyer who satisfies the requirements of the auction, terms of payment and shipping. Seller represents, warrants and covenants that (1) it has good and marketable legal title to the offered assets, free and clear of any lien, security interest, leasehold interest, co-ownership interest, or any other type of encumbrance or interest of any other person or entity, (2) it has authority to list the offered assets for sale and to sell the offered assets, no listed asset infringes or violates (or contains any parts or components which infringe or violate) any third party's copyright, patent, trademark, trade secret or other intellectual property or proprietary rights. Failure of a Seller to complete the sale of an asset to a qualified Buyer because of non-delivery or misrepresentation of the merchandise could result in damages payable to the Company. Such damages shall become immediately due and payable by the Seller to the Company upon written demand by the Company. Should any additional shipping costs be incurred because of incorrect shipping information and/or preparation the seller agrees to pay for these costs.
During the period that the Seller has listed assets for sale with the Company, the Seller has granted the Company an exclusive right to sell the specified quantities listed in the Schedule 1 of the ASA. All potential purchasers discovering the property by whatever means during the period of the ASA will result in a commission paid to the Company if said Buyer consummates sale. Seller agrees that any sale of the specified quantities of property during the agreed listing period will cause a commission to be earned by the Company.
3.5. Shill Bidding Policy
"Shill bidding" is the act of bidding on your own auction, either directly or indirectly, in an effort to artificially raise the price at which your auction item will eventually sell. This includes, but is not limited to, knowingly directing or allowing a third party to perform the artificial bidding against other, legitimate bidders in the auction. Shill bidding is not only a violation of the User Agreement, it violates both federal and state laws, and may subject perpetrators to criminal prosecution. Engaging in shill bidding on or through the Liquidity Services, Inc. website and services may result in (1) cancellation of auction item listings; (2) account suspension; (3) referral to law enforcement agencies; and/or (4) criminal prosecution.
3.6. Service and Transaction Success Fees
Upon the closing of a transaction, Sellers agree to pay the Company a success-based transaction fee for the marketing of their assets, integrated services and identification of qualified Buyers. The amount of this fee will vary based on the size and product type of the transaction and shall be communicated to and agreed by the Seller prior to listing the merchandise with the Company in the Schedule 1. In addition, the Company reserves the right to collect and retain a Buyer's premium from its customers in order to cover costs specific to any auction. Premium services such as third party inspection and warehousing are optional for Buyers and Sellers and require additional fees. The prices of the services are determined on a case-by-case basis and communicated to you by our Sales Team. A Seller's obligation to pay transaction fees incorporates by reference the Non-Circumvention clause contained herein.
3.7. Payment of Fees
All fees and other amounts payable pursuant to this User Agreement shall be paid in the listing currency (United States Dollars or Euro), free and clear of, and without deduction or withholding on account of, taxes of any kind. All of the Company's success based fees are deducted from the proceeds of the sales. Other eventual and mutual agreed payments are due within 15 business days of invoice.
Sellers acknowledge that despite the Company's best efforts, Buyers may fail to perform. The Company does not provide any representations or guarantees that Buyers will pay Sellers on their agreed price on a timely basis.
4. BUYER OBLIGATIONS
Users who use the Site to bid on and purchase Listed assets of any kind ("Buyer" or "Buyers") represent, warrant and agree that:
4.1. Bidding Activity
4.1.1. Buyer, by bidding on any auction assets, is demonstrating Buyer's intention and financial capability to purchase these assets.
4.1.2. Upon the placing of a bid, the Buyer may not retract, amend or modify their bid without prior approval by the Company.
4.1.3. At the close of an auction in which Buyer has a winning bid, Buyer agrees to make immediate payment for the total amount of the transaction, including the stated Buyer's Premium, shipping costs and all duties and taxes if applicable, using payment methods provided by Company upon auction close but in no circumstance later than two (2) business days of the payment notification. If the Company does not receive payment within two (2) business days, Buyer will be considered in default of bidding contract and will be responsible for liquidated damages fees of $200 or 15% of the final transaction price, whichever is greater. The Buyer will immediately be place in a suspended status until fees are paid.
4.1.4. The Buyer understands that it is the Company's policy to allow first-time buyers to have no more than two (2) outstanding transactions that require payment at one time. Once the Buyer's outstanding transactions have been paid, the Buyer is free to continue bidding until they win an additional auction. As soon as the Buyer completes their first transaction, they will be able to bid without any restrictions. A completed transaction is one that has been paid, received, and the merchandise has been accepted.
4.2. Asset Receipt and Inspection
4.2.1. After the close of an auction in which Buyer has the highest bid, Buyer is required to make arrangements to pay for the goods and to take delivery of shipment of Seller's Listed assets. If a buyer refuses shipment of merchandise upon arrival at the Buyer's location, the Buyer is responsible for the associated shipping charges. Buyer must conduct an inspection of the goods within a reasonable time following receipt, normally within two (2) business days, or waive any claim for damages or non-conformity of the goods. Buyers who elect to arrange their own shipping of purchased goods waive their right to inspect the goods or to the Company's dispute resolution process regarding any alleged non-conformity of the goods. Except as otherwise stated in writing by the Company, all assets are sold "as is, where is."
4.2.2. In the absence of Seller fraud, failure of Buyer to complete the purchase of assets may result in damages against the Buyer, including all damages available at law or equity. Buyer's failure to purchase assets after a Buyer's high bid is accepted will result in suspension or termination of Buyer's account. In addition, in the event of Buyer's failure to complete a transaction in the absence of Seller fraud, the Buyer agrees to immediately remit a success fee to the Company equal to 15% of the final bid placed on this listing. In the event of Buyer's default, the right is reserved to sell or otherwise dispose of the subject property and to charge all losses and expenses incidental thereto to the defaulting Buyer. The bid deposit, if applied to the transaction, shall be immediately forfeited by Buyer and applied against any such losses, expenses and liquidated damages.
4.2.3. When property is sold on a unit price basis, Seller reserves the right to vary the quantity delivered by a percentage explicitly disclosed in the listing. The Buyer agrees to accept any quantity within these limits. Outside these limits, the purchase price paid shall be adjusted upwards and downwards in accordance with the quantity actually delivered and accepted by the Buyer. Buyers seeking price adjustments should follow the dispute process described in Section 7.
4.2.4. The Buyer understands that according to Sales Tax Law, we are required to tax any individual or business under any or all of the following circumstances:
1. An individual or business that purchases products on the Site and the products are shipped to a residence and/or business located in California, Indiana, Minnesota, New Jersey, Texas, Nevada, or Washington, D.C.
2. An individual or business that purchases products that are located in California, Indiana, Minnesota, New Jersey, Texas, Nevada, or Washington, D.C. and the buyer chooses to arrange their own shipping.
The Buyer understands that in order to justify and consider waiving the sales tax on any closed transactions and/or future transactions, the company must receive appropriate documentation. Buyer may send us a copy of their Reseller certificate from California, Indiana, Minnesota, New Jersey, Texas, Nevada, or Washington, D.C., or they may complete a Declarative form / affidavit stating that the merchandise is to be taken out of one of the aforementioned states. To download forms, please click here
Any Buyer that attempts to rescind a credit card transaction without the Company's express written consent (i.e., chargeback), may have their account immediately suspended and/or permanently deactivated. If a Buyer performs a chargeback after receiving the property, Company may file charges with the appropriate law enforcement agency, and reserves the right to pursue all remedies available to us to recover our damages. If a Buyer feels that their merchandise was misrepresented or that the Buyer is owed a refund, they should follow the dispute process.
5. PAYMENT COLLECTION
Upon the close of a sale, the Company's payment collection team will use commercially reasonable efforts to contact buyers in order to ensure timely payment. Payment is collected for all costs associated with the transaction including: Buyer's Premium and shipping expenses. Preferred methods of payment include wire transfers and PayPal. PayPal and Credit cards shall be accepted up to the limit of US $5,000 per transaction. All payments should be made via approved payment methods. For first time buyers (buyers who have not yet completed their first transaction), credit cards will not be accepted for used or salvage assets. PayPal and wire transfer are acceptable methods of payment. International buyers may pay for transactions via wire transfer only.
5.1. Special Provisions
For transactions involving a buyer or seller from the States of California, New Mexico, Utah, Washington, Montana, Nevada, and Arizona, the following provisions will apply and to the extent that such provisions are inconsistent with any other terms and conditions of this User Agreement, the terms and conditions of this section 5.1 will govern:
The Company will directly and unconditionally remit to the Seller the amount paid for the assets by the Buyer minus the Company's fees as soon as practical but in no event later than 21 business days after the auction closing. Except where assets are sold "as is, where is" as stated in the auction description, the Buyer will be reimbursed by Company in the event of the seller's gross misrepresentation or non-delivery of the assets, if Buyer files a valid dispute form within a reasonable time of the Buyer's receipt of the assets, or of the expected delivery date for non-delivered goods.
Failure of a Seller to complete the sale of assets to a qualified Buyer because of non-delivery or misrepresentation of the merchandise could result in damages payable to the Company up to a maximum amount of $20,000. In the event that a Seller is not able to complete the transaction or ship the goods due to unforeseen circumstances, the Buyer cannot hold either the Seller or the Company liable for damages beyond reimbursement of monies paid to the Company or Seller.
Sellers acknowledge that despite the Company's efforts, Buyers may fail to perform. The Company does not provide any representations or guarantees that Buyers will pay Sellers on their agreed price on a timely basis.
The Company reports instances of credit card fraud to proper law enforcement authorities and prosecutes offenders to the full extent of the law. Credit card fraud includes, but is not limited to, any instance where a buyer has charged back their credit card payment and maintains possession of the merchandise, without the consent of the Seller.
Users agree not to negotiate, communicate, or transmit any information of any kind with any other Registered User (whether or not the User has placed a bid) in an attempt to complete the sale of assets and specified quantities listed in the Schedule 1 of the ASA through a means outside of the Company's online liquidation auction (a "Circumventing Transaction"). In the event a Seller completes a Circumventing Transaction within 12 months following the expiration of a Seller's auction, Seller understands and agrees that Seller is obligated to immediately remit a success fee to the Company equal to 15% of the final aggregate gross sale price for the assets or merchandise sold in the Circumventing Transaction. This non-circumvention clause shall apply to Users and their principles, agents and representatives, including but not limited to employees, consultants, bankers, attorneys, accountants, assignees, heirs and transferees.
7. DISPUTE RESOLUTIONS
Buyers who feel that their auction was misrepresented (in terms of quality, quantity, or both) must submit an online dispute form to Liquidation.com. The form can be found by visiting www.liquidation.com. Buyers are required to submit support to validate their claims (including manifests or photos) and failure to do so may result in a denied claim. Buyers must have a dispute on file in order for the Customer Support department to conduct any actions on their behalf. To help eliminate the need for disputes, buyers should accurately check the manifest, condition, shipping terms, and images of product they wish to purchase. Buyers who arrange their own shipping agree to waive their right to dispute the merchandise, and assume responsibility at the point of pick-up. Merchandise should be inspected prior to exiting the facility.
In the event of a dispute between Buyer and Seller in connection with a pending transaction, all Users agree to cooperate with the Company's Customer Support department to resolve the dispute before taking any other action. If the Company cannot resolve the dispute within 10 business days of the dispute form receipt, then the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through the American Arbitration Association (.AAA.). The AAA and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
7.1. Refund / Return Policy
Refunds or returns of merchandise must be approved by the Company's Customer Support team, and must be preceded by an honored dispute. Any attempt to rescind a payment or return property prior to an authorization by the Company will result in a delay of claim resolution, and may adversely impact the Buyers ability to transact on our website. Unauthorized returns will be refused at delivery. When a return is authorized, the Company does a full inspection of all merchandise upon return and units must be the same as when shipped out to the customer including serial number, included accessories, etc. to be eligible for a full refund. Title to property remains with the Buyer until the returned property is accepted by the Company or by the Seller.
8.1. Interruption of Service
User understands that the Company shall take all commercially reasonable efforts to make its Site and Service available. However, the Company is not responsible for any damages or losses related to any system errors or interruptions affecting its Site and the processing of any online liquidation auctions or sales. User understands that the Site may be unavailable unexpectedly as a result of circumstances beyond its control or routine maintenance. User agrees not to attempt any action that may disrupt the Company's Site and Services, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of the Company's programs or infrastructure.
8.2. Changes to Site and Services
The Company reserves the right, in its sole discretion, to modify, suspend or terminate any aspect of its Site and Services, including, but not limited to, content, auction features, news and information, and product categories without notice.
8.3. Record Keeping
The Company cannot guarantee the preservation or maintenance of records relating to historical auction transactions and bidding activity and encourages User to keep individual records and an accounting of all activity conducted through the Company's Site.
User acknowledges and agrees that the Company does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may be assessed or owed by any User in connection with the use of the Company's Site and Services. User understands and agrees that User is solely responsible for the calculation and payment of any taxes that may be incurred as a result of using the Company's Site and Services.
8.5. No Agency
The relationship between Users and the Company is that of an independent contractor. No agency, partnership, joint venture or franchise relationship is implied, intended or created by the terms and conditions of this User Agreement.
8.6. Site is Only a Venue
The Site and associated sites are merely a venue for Registered Users to exchange information and facilitate transactions. It is expressly understood and agreed that the Company is not a broker or agent and has no duty to the User with regard to transactions through the Services other than those duties expressly outlined in the terms and conditions of this User Agreement. Unless otherwise stated, the Company is not a party to the transactions between Buyers and Sellers. The Company does not guarantee the quality, safety, condition, or ownership of the assets advertised for sale on its Site and does not guarantee the accuracy of the information provided in the description of assets advertised for sale on its Site. Buyers are encouraged to perform their own due diligence, including, but not limited to, using the Site's "Ask the Seller a Question" feature and the arrangement of an on-site inspection. The Company does not guarantee any individual Seller's or Buyer's ability to complete transactions using the Company's online liquidation service and makes no representation regarding the identity, creditworthiness, or performance of any User.
8.7. Export of Property
You acknowledge and agree that certain goods, software, and technology may be subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (EAR), the International Traffic in Arms Regulations, and regulations of the U.S. Department of Treasury, Office of Foreign Assets Controls. You agree you will comply with all applicable export laws and regulations.
You may not, without prior U.S. Government authorization, export, re-export, or transfer any goods, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of these countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any goods, software or technology may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction, e.g. nuclear, chemical, or biological weapons, and the missile technology to deliver them.
We do not sell property to persons from the countries that are prohibited from receiving transfers of military equipment or technology. Please check with the appropriate government agency for a current list of prohibited countries. Buyers are advised that purchasing from us and then reselling or attempting to export to these countries is prohibited. The list of prohibited countries is subject to change at the discretion of the U.S. Government
If you purchase property that will be exported outside of the United States, you must obtain proper export licenses prior to our transfer of title and release of goods. We may assist Buyers in obtaining export licenses, and you agree to pay the costs associated with obtaining any licenses required. Our assistance will be limited to providing information for the purpose of completing required export license applications, Shippers Export Declarations, or other forms. We cannot advise you as to which forms, which licenses, or what agencies may have jurisdiction over the property you purchase. You are encouraged to seek expert legal advice regarding export licensing. We are not an expert in the area of export licensing and do not hold ourselves out as such.
8.8. General Release and Hold Harmless for Loading of Buyers Property
Buyer understands that, due to liability concerns, LSI will only assist in loading product onto conveyances that are of dock height. The loading of product into all other types of vehicles will be the sole responsibility of the buyer. In exchange for whatever assistance LSI provides in staging, positioning, loading, or securing Buyers property, Buyer and Buyers subsidiaries, affiliates, directors, officers, employees, vendors, suppliers and agents releases, holds harmless and agrees to defend, LSI and its subsidiaries, its and their officers, directors, employees, vendors, suppliers and agents from any and all liability for any damages to property or to persons that may arise in connection with the movement of the property from LSIs dock.
USER AGREES NOT TO HOLD COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY OF USER'S DEALINGS WITH ANY OTHER USERS.
8.9. Notice and Communication
Unless stated otherwise, all notice and communication with User shall be provided by e-mail to the e-mail address provided by the User in their registration application or via posting on the Site. Notice shall be deemed to have been provided 24 hours after the e-mail was transmitted by the Company or at the time the information was posted on the Site. If the Company receives a message that the User's e-mail is disconnected, is no longer valid, or that the e-mail communication could not be delivered (for whatever reason), notice shall be deemed to have been provided at the time the information was posted on the Site. Any mailed letters sent by the Company to the User shall be considered courtesy copies only, and shall not have any bearing on the determination regarding the date notice was provided as stated above. The Company will contact buyers by phone in instances of pending payment or pickup in an effort to avoid cancellation and penalties.
In the event User has a dispute with another User, User releases Company, directors, officers, employees and agents from claims, demands and damages, whether actual or consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. This release includes any claims brought by any individuals relating to misuse or unauthorized use of data User gives to Company. Users agree to defend, indemnify and hold harmless the Company, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all damages (whether direct, consequential or otherwise), claims, liabilities, costs and expenses incurred (including, without limitation, all reasonable attorney fees and costs), as a consequence of any acts by User undertaken in connection with the Company's Site and Services, including without limitation, those arising out of any breach of any User representation or warranty, User's obligations hereunder, any User transaction attempted through the Service, or any dispute between User and any other Users.
8.11. Third Party Links
The Site may contain links to other websites or resources for the convenience of Users in locating related information and services. User acknowledges and agrees that Company is not responsible or liable for (i) the availability or accuracy of such sites or resources, or (ii) the content, advertising or products on or available from such sites or resources,the User Agreements that may govern such sites or resources, or the privacy policies and data collection, use or retention practices of such sites. The inclusion of any link on the Site does not imply that the Company endorses the linked site. User uses the links at User's own risk.
This User Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof, and, to the maximum extent permissible, without reference to that body of law known as the Uniform Computer Information Transaction Act. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof..
If any provision of this User Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible and the remainder of this User Agreement shall continue in full force and effect.
The terms and conditions of this User Agreement constitute a binding agreement between the Company and each User until terminated by the User or the Company. User may discontinue use of the Site and Services at any time with or without notice to Company. The Company may consider any account on which no activity (the User has not logged into the account) has occurred for 365 consecutive days to be abandoned, and may terminate the account without further notice to the User. Upon termination, User is obligated to immediately cease using the Site and Services. The Company expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of the Company, for any reason and without notice.
8.15. Disclaimer of Warranties
THE SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE SITE OR SERVICES, ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. THE COMPANY DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY SYSTEM INTEGRATION OR QUIET ENJOYMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES, FUNCTIONS, FEATURES OR CONTENT WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. COMPANY MAKES NO WARRANTY THAT THE LISTED ASSETS, SITE OR SERVICES WILL MEET USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING THE LISTED ASSETS, THE LISTED ASSETS WILL BE SOLD. COMPANY MAKES NO WARRANTY REGARDING ANY LISTED ASSETS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE, INSTRUCTIONS OR INFORMATION RECEIVED BY A USER, WHETHER ORALLY OR IN WRITING, FROM THE COMPANY SHALL CREATE ANY WARRANTY BY THE COMPANY NOT EXPRESSLY MADE HEREIN. COMPANY EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY LISTED ASSETS SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
8.16. Limitation of Liability
IN NO EVENT SHALL COMPANY, NOR ANY SELLER BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (a) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSETS OR (b) DEFECTS IN SUCH LISTED ASSETS ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY. IN ADDITION, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE CONTENT INCLUDING WITHOUT LIMITATION ANY MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF COMPANY OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR IN TORT) EXCEED THE AMOUNT OF FEES PAID BY THE USER TO THE COMPANY IN CONNECTION WITH THE DISPUTED ASSETS.
The parties have agreed that the limitations of liability set forth will survive and apply even if any limited remedy specified in this User Agreement is found to have failed its essential purpose. Some jurisdictions may not allow the limitation or exclusion of incidental or consequential damages, so the above limitation may not apply to certain Users.
The failure of Company to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. Any waiver of any right, provision, term or condition must be in writing, signed by our authorized representative, and will be effective only for the instance specified in the writing.
8.18. Oral Representations
Any oral statement or representation by any representative of the Company, changing or supplementing the written description of the offering or the published terms and conditions of this User Agreement, is unauthorized and confers no right on the User and may not be relied on by the User. No interpretation of any provision of the terms and conditions of this User Agreement, including applicable performance requirements, is binding on the Company unless agreed to, in writing by the Company.
8.19. Intellectual Property
Company intellectual property ("Company IP") is all inventions, know how, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or otherwise relating to the Site or Services. Company IP may be created by one of more of Company's employee(s) alone or jointly with a User or Users arising from the use and development of the Services or as a result of User's feedback regarding the Site or Services ("Feedback"). All right, title and interest in any Company IP shall belong to Company and shall be subject to the conditions of this User Agreement. User hereby irrevocably assigns to Company all right, title and interest User may acquire in any Company IP. Company may, at its option, file an application for intellectual property protection for Company IP. If any such Company IP is created with User's participation, User agrees to cooperate with Company to assure that such application(s) will cover, to the best of User's knowledge, all related assets, including all features of commercial interest and importance. Company IP is the sole and exclusive property of the Company, unless otherwise stated and may not be used without the prior written consent of the Company.
The Site and the Company's tradenames, domain names and logos found on the Site are trademarks or service marks of Liquidity Services, Inc. No display or use of such marks may be made without the express written permission of Liquidity Services, Inc.
All trademarks, trade names, logos, and service marks featured on this website are the property of the owners of said intellectual property. Liquidity Services, Inc. disclaims any associations or endorsements that may be implied through the use of the trademarks, trade names, logos or service marks of others.
Buyer agrees not to use Seller's name, logo, trademark or service mark, whether known or suspected, nor any photographs, images, illustrations, or other depictions from the Seller's website in any remarketing or re-selling of the products purchased from this site, which would violate the intellectual property rights of the Seller.
This User Agreement may not be assigned by User or by operation of law to any other person, persons, firms or corporations without the express written approval of the Company.
8.22. Entire Agreement
This User Agreement constitutes the entire agreement between the User and the Company, and it supersedes any previous agreements, whether oral or in writing, between Users and the Company. The Company may, at its sole discretion, remove or change any aspect of this User Agreement. Any change to this Agreement will become effective at the time such change is posted to the Company's website. No notice will be provided to Users regarding any change to the User Agreement. Users are encouraged to review the terms and conditions of this User Agreement frequently to ensure that they are aware of any changes. The Company will not be liable to the User for any failure to notify the User of a modification to the User Agreement.
8.23. Translation of the User Agreement into Languages Other than English
This User Agreement may be presented to the User in a language or languages other than English. Any presentation or translation of this User Agreement into a language other than English shall be for the Users convenience, but User will continue to be guided by the English language version of the User Agreement in the event that there is a conflict between the English language version of the User Agreement and any translation into a language other than English.
9. ADDITIONAL TERMS AND CONDITIONS FOR LIQUIDATION.COM DIRECT BUYERS (http://direct.liquidation.com/). The following terms and conditions apply in addition to the preceding terms and conditions of this User Agreement.
9.1. Site Regulations (For All Users)
The technology, software, and data underlying the Site are the property of the Company or the Company's affiliates or partners. As a User, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in or otherwise transfer any right to the technology or software underlying our Site. You agree not to modify the software underlying our sites in any manner or form, or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
Without limiting the foregoing, you agree that you will not use the Site to take any of the following actions:
(a) Defame, abuse, harass, stalk, threaten or otherwise violate the legal right of others;
(b) Publish, post, upload, email, distribute or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content;
(c) Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person's computer, our sites, any software or hardware, or telecommunications equipment;
(d) Advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so;
(e) Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, or chain letters;
(f) Download any file that you know or reasonably should know, cannot be legally obtained in such manner;
(g) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
(h) Restrict or inhibit any other user from using and enjoying any public area within our sites;
(i) COLLECT, STORE OR TRY TO GAIN ACCESS TO PERSONAL INFORMATION ABOUT OTHER END USERS, CUSTOMERS, SUPPLIERS OR ENTITIES THAT HAVE USED THE SITE;
(j) USE DATA ABOUT END USERS, CUSTOMERS, SUPPLIERS FROM THIS SITE FOR PERSONAL GAIN;
(k) Interfere with or disrupt our sites, servers or networks;
(l) Impersonate any person or entity, including, but not limited to, a Company representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(m) Forge headers, manipulate identifiers or other data in order to disguise the origin of any content transmitted through our sites, or to manipulate your presence on our sites;
(n) Take any action that imposes an unreasonably or disproportionately large load on our infrastructure.
(o) Engage in any illegal activities
You agree to use the bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities provided on the Company's site, if any (collectively, the "Forums"), only to send and receive messages and material that are proper and related to that particular Forum.
If you choose a username that, in our sole discretion, is obscene, indecent, abusive or which might otherwise subject us to public embarrassment or scorn, the Company reserves the right, without prior notice to you, to automatically change your username, delete your posts from the Company's sites, deny you access to the Company's sites, or any combination of these options.
Unauthorized access to the Company's sites is a breach of this User Agreement and a violation of the law. You agree not to access the Company's sites by any means other than through the interface that is provided by the Company for use in accessing its sites. You agree not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor or copy any part of the Company's sites except those automated means that have been approved in advance and in writing by the Company.
Use of the Company's sites is subject to existing laws and legal process. Nothing contained in this User Agreement shall limit the Company's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Company's sites.
9.2. Reseller Provisions
In addition to applicable terms and conditions stated elsewhere in this User Agreement, the following provisions apply to all Buyers, who resell or intend to resell, whether now or in the future, the assets purchased from the Company hereunder:
9.2.1. No Exclusivity
The Buyer understands and agrees that the sale of assets by or through the Company is not an exclusive basis. Company may sell the same type of assets to other bidders. Buyer further understands and agrees that the Company is not guaranteeing a minimum quantity, quality, and percentage of product mix or a continuous flow of such assets.
EXCEPT AS OTHERWISE STATED HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ASSETS SOLD HEREUNDER, OR ITS MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN BY COMPANY, AND NONE SHALL ARISE BY OR IN CONNECTION WITH THIS USER AGREEMENT AND/OR COMPANY'S CONDUCT IN RELATION HERETO, AND IN NO EVENT SHALL COMPANY BE LIABLE ON ANY SUCH WARRANTY WITH RESPECT TO ANY ASSETS SOLD HEREUNDER. Buyer accepts all assets sold to it in accordance with this User Agreement on an "AS IS" basis. Unless otherwise agreed in writing by Company, title and risk of loss will pass to Buyer upon pickup at the origination point by carrier (F.O.B. Origin). Upon pickup of the assets, Buyer shall release Company of any fault, and shall forfeit any rights to claims associated with the assets or the shipment of assets purchased hereunder against the Company.
Buyer shall keep in full force and effect at all times during the applicability of this User Agreement with a company acceptable to Company the following minimum coverage's:
(a) Workers Compensation & Employer Liability coverage as required by law; and
(b) Commercial general liability insurance coverage, including insurance against assumed or contractual liability, with a combined single limit of Two Million U.S. Dollars ($2,000,000) per occurrence and a limit of One Million U.S. Dollars ($1,000,000) per occurrence for Excess Insurance, insuring Buyer's activities pursuant to this User Agreement. Such insurance shall be primary, non-contributory and not excess coverage, except as stated, and shall name Company, its affiliates and subsidiaries as an additional insured. Such insurance shall not be cancelable without at least thirty (30) days prior written notice to Company. Buyer will provide a certificate of insurance evidencing such coverage at least seven (7) days prior to the commencement of its activities conducted pursuant to this User Agreement.
9.2.4. Resale Facilities
Buyer agrees to notify Company of any retail facility from which assets purchased hereunder will be resold that is within a five (5) mile radius of a Company partner location existing and in operation as of the date of execution of this Agreement. Upon this notification Company shall have the right to deny sales through this facility or to determine its appropriateness within the liquidation program.
9.2.5. Inspection of Buyer Facilities and Audit
Buyer shall permit Company and/or its designated agent to conduct scheduled and/or unscheduled and unannounced inspections of Buyer's resale and defacing facilities during normal business hours for the purpose of insuring compliance with this User Agreement, and other requirements regarding the property purchased, which may be imposed by the Seller, such as exportation, delabeling, defacing, etc. Buyer agrees that Company or a third party named by Company shall have the right to audit and inspect any and all records of Buyer related to the disposition of the assets purchased hereunder at any time during, and for a period of ninety days after, the applicability of this User Agreement against the Buyer. It is further agreed that Company or a third party named by Company shall have the right to have an independent company audit or inspect Buyer's records and books at anytime, with a ten (10) day notice in regard to disposition of the assets purchased hereunder so long as this expense is paid for by Company.
9.2.6. Covenant Not to Compete
Buyer agrees, during the applicability of this User Agreement, and for a period of not less than one hundred and eighty (180) days from the expiration or termination of this User Agreement, not to purchase or solicit to purchase any liquidation or salvage merchandise or assets directly from any of the Company's vendors/suppliers.
9.2.7. Conflicting Terms
If any term or condition stated in this Section 9.2 conflicts with any other applicable provision of this User Agreement, the terms stated in this Section 9.2 shall control and take precedence over such conflicting provisions. I UNDERSTAND THAT BY PARTICIPATING IN A LIQUIDATION.COM AUCTION OR DIRECT SALE THAT I AM BOUND AND I AGREE TO BE BOUND BY THIS USER AGREEMENT.
Revised January 22, 2013.