1. Our Services
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Our Site.AllSurplus,
GovDeals,
Liquidation.com,
Liquidation.com Direct,
Network International, and
GoIndustry DoveBid
are our Marketplace websites and together constitute our Site. Our
Site allows Users to offer, sell, bid on, and buy just about any asset
in a variety of pricing formats at locations across the world. Our
Site is a core component of the Services that we provide.
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Guidance.We provide guidance to Users as part of our Services, such as
pricing, reserves, shipping, inventories, photographing, listing
creation, and related services. Such guidance is solely for
informational purposes. A User may decide to follow guidance, or it
may not. Further, while our customer support team may help facilitate
the resolution of disputes through various programs, we have no
control over and do not guarantee any of the following: the existence,
quality, safety or legality of items advertised; the truth or accuracy
of Users’ content or listings; the ability of Sellers to sell items;
the ability of Buyers to pay for items; or that a Buyer or Seller will
actually complete a Transaction or return an item.
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Buyers.Users who are Buyers are automatically registered as a Buyer on our
Site upon such Buyer’s acceptance of this Agreement. We refer Buyers
to our
Listing Contract Policy
that explains the process of how a Buyer contracts with a Seller to
purchase an Asset in a Transaction.
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Self-Directed Sellers.Upon request and approval by us in our sole discretion, we can enable
a User to sell Assets using our Services and thus become a
Self-Directed Seller. Once approved, a Self-Directed Seller can use
our Services to create and post Listings with Listing Contracts in a
variety of pricing formats. We refer Self-Directed Sellers to our
Listing Contract Policy
that explains the process of how a Seller contracts with a Buyer to
sell an Asset in a Transaction.
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Listing Contract Distinguished from User Agreement.Our Services are distinguished from the actual Listing Contract for a
particular auction or sale Transaction. Our agreement with Buyers and
Sellers directly accessing and using our Site is this Agreement. The
Listing Contract is directly between the Seller and the Buyer. Our
Listing Contract Policy
provides an explanation of how a Seller and a Buyer enter into a
Listing Contract. Our
Listing Contract Policy
also sets a default base set of terms and conditions for a Listing
Contract, should a Seller not provide a Listing Contract or if
Seller’s Listing Contract is silent as to certain terms that we
believe are core to successful Transactions. In the event of a
conflict between a Listing Contract’s terms and our default terms in
our
Listing Contract Policy, the terms of the Listing Contract control.
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Managed Services.We also provide a range of Services to support Self-Directed Sellers
and other commercial businesses and governmental agencies that are not
registered Users and that engage us to act as their agent on a
consignment basis to sell their Assets using our Services (our “Managed Services”). Certain of our Managed Services are described in our
Managed Services Policy. We may enter into a Managed Services Agreement or such other
mutually agreed written agreement to set forth the additional terms on
which we are engaged to provide Managed Services. In some cases,
Seller will engage Liquidity Services on a consignment basis and
Liquidity Services will sell such Seller’s Assets as Seller’s agent.
Depending on the terms of the Managed Services Agreement or other
mutually agreed agreement, such Seller may not be a party to this
Agreement, except to the extent the Listing Contract between such
Seller and Buyer incorporates by reference provisions of this
Agreement.
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Policy Enforcement.When a dispute between Users arises, we may consider such Users’
performance history and the specific circumstances in applying our
policies. We may choose to be more lenient with policy enforcement in
an effort to do what we believe is the right action for our Buyers and
Sellers and no such choice shall be deemed a waiver of our right to
enforce our policies in accordance with their respective terms.
2. Restrictions on Use of Services. No User may:
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upload, post, email, transmit or otherwise make available any content
that: (i) is illegal, harmful, threatening, abusive, harassing,
tortious, defamatory, vulgar, obscene, libelous, invasive of another’s
privacy, hateful or otherwise objectionable; (ii) may not be made
available under any law or under contractual or fiduciary relationships
(such as confidential or proprietary information learned as part of an
employment relationship or under a non-disclosure agreement); (iii)
infringes any patent, trademark, trade secret, copyright or other
proprietary right of any party; (iv) consists of unsolicited or
unauthorized advertising, promotional materials, junk mail, spam, chain
letters, pyramid schemes, commercial electronic messages or any other
form of solicitation; (iv) contains software viruses or any other code,
files, programs or devices designed or intended to interrupt, destroy or
limit the functionality or proper operation of our Services or any
software or hardware comprising our Site; or (v) violates the terms of
this Agreement;
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impersonate another person or entity (including, but not limited to, our
employees or agents) or falsely state or otherwise misrepresent such
User’s affiliation with another person or entity;
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use our Services in any way that violates any local, state, provincial,
federal, national or international law or regulation or that is
otherwise prohibited by this Agreement, including, without limitation,
laws prohibiting the export of certain Assets and laws requiring a
Seller to have an export license for selling to a Buyer that is not the
same nationality of the Seller;
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use our Services in any manner that could damage, disable, overburden,
or impair our Services;
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use our Services if such User cannot form a legally binding contract
(for example, if the User is under 18 years old);
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use our Services if we have temporarily or indefinitely suspended such
User’s account;
- use our Services if such User is a Restricted Person;
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take any action that imposes an unreasonable or disproportionately large
load on our Site or our support infrastructure for Services;
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interfere with or disrupt any computer networks involved in the
provision of our Services or disobey any requirements, procedures,
policies or regulations of networks connected to our Services;
- interfere with another’s use of our Services;
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use our Services in such a way as to gain unauthorized access to our
computer systems or the computer systems of others;
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sell, share, transfer, trade, loan or exploit for any commercial purpose
our Services, including, but not limited to, any User’s account and
password; and
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use spiders, crawlers, robots or any other similar means to access our
Site or substantially download, reproduce or archive any portion of our
Site, or otherwise engage in any data-mining activities using our Site
or Services; and
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engage in shill bidding, (i) which is the act of bidding on your own
Assets, either directly or indirectly, in an effort to artificially
raise the price at which your Assets will eventually sell; (ii) which
includes, but is not limited to, criminal or civil violations of
applicable law as well as knowingly directing or allowing a third party
to perform the artificial bidding against other legitimate bidders in
the auction or sales event; and (iii) provided, however, notwithstanding
the foregoing and where permitted by law, Liquidity Services may enter
bids on a Seller’s behalf, including when we act as the Seller, up to
(but not including) the reserve price on any Assets in any auction
conducted pursuant to this bidding.
3. Reservation of Rights with Respect to our Services
4. Disclaimer of Warranties Relating to Services
We try to keep our Services safe, secure, and functioning properly, but we
cannot guarantee the continuous operation of or access to our Services.
Bid or order updates and other notification functionality in our Services
may not occur in real time. Such functionality is subject to delays beyond
our control. We do not warrant error-free or uninterrupted Services.
Prices and availability of Assets described in Listings are subject to
change without notice. YOU AGREE THAT YOU ARE MAKING USE OF THE SERVICES
AT YOUR OWN RISK, AND THAT THE SERVICES ARE BEING PROVIDED TO YOU ON AN
AS IS AND AS AVAILABLE BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE, AND OUR SERVICES
ARE PROVIDED WITHOUT ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. Our Services are designed to serve business and
governmental Buyers and Sellers. Accordingly, Buyers are expected to be
sophisticated and capable of self-evaluating and inspecting Assets they
purchase on an
AS-IS, WHERE-IS AND WITH ALL FAULTS
basis. As most Assets are used or surplus Assets coming from corporations
or governmental parties, our Services are not suitable for personal,
family or household use. Buyers should not expect Sellers to provide any
mass market or consumer warranties customarily offered by retail websites.
5. Limitation on Liability
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Limitations to our Liability. IN NO EVENT WILL LIQUIDITY SERVICES BE
LIABLE FOR INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, LIMITED
OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
(INCLUDING WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON
CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE).
To the extent permitted by applicable law, such limitations to our
liability apply to: (i) the ability or inability of a User to use our
Services; (ii) pricing, reserve setting, listing preparation, shipping
or any other guidance provided by us, except as otherwise expressly
provided in a Managed Services Agreement; (iii) delays or disruptions
in our Services; (iv) viruses or other malicious software obtained by
accessing, or linking to, our Services; (v) glitches, bugs, errors, or
inaccuracies of any kind in our Services; (vi) damage to User’s
hardware device or other computer systems or software from using any
of our Services; (vii) suspension or other action taken regarding
User’s account; (viii) User’s need to modify practices, content, or
behavior or User’s loss of or inability to do business, because of
changes to this Agreement or our Services; (ix) User’s inability to
import or export Assets, or fines or costs incurred related to the
import or export of Assets; (x) any act or omission of a third party,
including without limitation third-party Sellers and their agents; or
(xi) any dispute between a User and a third party, including Claims
relating to Assets sold by a Seller on behalf of a third party.
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Exception.
Nothing in this Agreement shall limit or exclude liability for death
or personal injury resulting from our gross negligence or willful
misconduct or any other statutory or other liability that cannot be
limited or excluded under applicable law.
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Damage Limitations.
Regardless of the previous paragraphs, if we are found to be liable
for any reason with respect to a Transaction for which we are
providing Services, our liability to a User is limited as follows: (i)
if in the Transaction we were reselling Assets that we had previously
purchased and to which we had held title, our liability to a Buyer
(for a Transaction in which we, in fact, are acting as the Seller) is
limited to (a) the purchase price paid to us by the Buyer in the
Transaction (including any applicable sales tax) and (b) any Buyer’s
Premium or fees paid to us by such Buyer; (ii) If we are acting as a
Seller’s consignee or agent, our liability to a Buyer in a Transaction
is limited to the total Buyer’s Premium paid to us by the Buyer and
our liability to a Seller in a Transaction is limited to the total
Seller’s Commission paid to us by the Seller; or (iii) if we are
neither a reseller nor a consignee, we are liable to a User only for
the fees, commissions or premiums paid to us by such User for our
Services provided in a Transaction.
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CLASS ACTION WAIVER. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU
AGREE AND UNDERSTAND THAT YOU WILL NOT BRING AGAINST LIQUIDITY
SERVICES, OR ANY OF ITS AFFILIATES OR RELATED ENTITIES, OR ANY OF
THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, MANAGERS,
EMPLOYEES, AGENTS, REPRESENTATIVES AND PERMITTED SUCCESSORS AND
ASSIGNS, ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION RELATED TO
YOUR ACCESS TO, DEALINGS WITH, OR USE OF OUR SERVICES, AND ANY SUCH
CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS.
6. Defense and Indemnity
Each User agrees to defend and indemnify Liquidity Services, its
affiliated and related entities, and their respective shareholders,
members, directors, officers, employees, agents, representatives, and
permitted successors and assigns (collectively, the “Liquidity Services Indemnified Parties”), and hold them harmless from and against any and all damages, claims,
suits, actions, liabilities, loss, costs and expenses, including
reasonable attorneys’ fees (collectively “Claims”), arising out of or alleged to have arisen from: (i) such User’s breach
under this Agreement, (ii) such User’s breach of a Managed Services
Agreement or any other agreement entered into under or in connection with
this Agreement, (ii) if such User is a Buyer, such User’s subsequent sale,
use or handling of the Assets, (iii) such User’s breach of any law, rule,
regulation or any order of any court or other governmental authority, or
(iii) such User’s violation of the rights of any third party. The
foregoing indemnity applies to any such claim except to the extent that
such Claim is caused by the gross negligence or willful misconduct of
Liquidity Services.
7. Anti-Money Laundering, Anti-Terrorism, Anti-Bribery and Anti-Corruption
Representation and Indemnity
Each User represents, warrants and certifies that such User is not
promoting, facilitating or otherwise furthering, intentionally or
unintentionally, the transfer, deposit, or withdrawal of criminally
derived property, or of money or monetary instruments that are (or that
such User suspects or has reason to believe are) the proceeds of any
illegal activity or that are intended to be used to promote or further any
illegal activity, and will at all times comply with all laws, rules,
regulations, and orders of any court or governmental authority applicable
to such User, its business or the location of the Assets, for the
prevention of money laundering, anti-terrorism, anti-bribery or
anti-corruption, including the U.S. Foreign Corrupt Practices Act, the
U.K. Bribery Act of 2010 and similar laws. Each User agrees to defend,
indemnify and hold the Liquidity Services Indemnified Parties and all
other Users harmless from and against any and all Claims made by any third
party due to or arising out of such User’s breach of this representation.
This includes, without limitation, the defense, indemnification and
holding us and any other User harmless against any claims by any
governmental agency, including without limitation any investigation,
administrative, regulatory or judicial proceeding arising from any alleged
violation of this representation. Users are referred to our
Anti-Bribery and Anti-Corruption Policy.
8. Taxes
All bids and orders are made net of any taxes imposed with respect to the
purchase. A Buyer is liable for all such taxes or for establishing a valid
exemption certificate from such taxes. Each Buyer acknowledges and agrees
that we are or the Seller (in the case of certain of certain of our
government Sellers who prefer to handle this aspect of the transaction
themselves)providing a Service in the calculation, reporting and
remittance of sales or use taxes for Transactions that arise in connection
with Buyer’s use of our Services, and ultimately, Buyer remains liable for
any sales or use tax liability. We are not obligated to refund sales tax
due to late submission of sales tax exemption documentation. In some
countries, such as the United Kingdom, VAT applies to auctions or sales
events. All bids and offers are net of any VAT and other indirect taxes
imposed regarding the sale or purchase Transaction. Buyers are liable for
all such taxes for all purchases. The successful bid or offer in respect
of any Asset will be exclusive of VAT and other indirect taxes, and the
amount payable by User will be increased by VAT and other indirect taxes
owed. Similarly, all fees and other amounts payable to us (including
Buyer’s Premium) are calculated without regard to VAT so the amount
payable by User will be increased for VAT if applicable. The amount
payable will be subject to VAT if User does not provide all necessary
documentation to the Seller required to substantiate a VAT rate other than
the standard VAT rate (e.g. 0% export rate or 0% rate for intracommunity
supplies within the European Union) which will include: (i) satisfactory
proof of export by the Buyer; (ii) the corresponding amount of tax refund
from the relevant tax authority or Seller; and (iii) the relevant tax
forms (if applicable). If User has a VAT registration number, User must
enter it when registering for our Services and User is required to
immediately notify us if it ceases to be valid. User will indemnify the
Liquidity Services Indemnified Parties from and against any and all Claims
relating to User and/or Seller’s failure to satisfy any VAT chargeable in
relation to a Transaction. For the avoidance of doubt, it is User’s
responsibility to satisfy itself that any VAT (or similar) charges or
related obligations have been met in relation to a Transaction.
9. Term and Termination
The term of this Agreement commences when a User accesses or uses our
Services and continues in full force and effect until we provide written
notice of termination to such User or User provides notice to our customer
service department that User is closing its account. Termination will
immediately cancel any active Listing for a User’s account which a Listing
Contract has not been formed between a Buyer and Seller. Notwithstanding
any termination of this Agreement, the terms of this Agreement shall
continue to apply to all outstanding Listing Contracts until such Listing
Contracts have been fully settled and until such User has settled all
outstanding amounts owed to us in accordance with this Agreement or any
separate written agreement entered into between such User and us (for
example, a Managed Services Agreement).
10. No Simultaneous Listing of the Same Assets on our Site and a
Third-Party Marketplace for Sale or Auction; No Circumvention of our
Services
Except as otherwise expressly authorized by us in writing, a User cannot:
(i) simultaneously list for sale or auction Assets on our Site and a
third-party marketplace for sale or auction; (ii) engage in any action
with another User in which such action is designed to complete or
facilitate outside of our Site any Transaction that is commenced on our
Site; or (iii) use contact information obtained through our Services to
offer to buy or sell an item outside of our Site; provided, however, that
this provision shall not be deemed to prohibit any pre-existing
contractual relationships between a seller and a buyer.
11. Communication & Notices
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Electronic Signatures in Global and National Commerce Act.User acknowledges and agrees by accessing or using this Site,
including by clicking the electronic link indicating User’s agreement
to be bound to this Agreement during registration on our Site, User is
consenting to the use of electronic records and signatures in
connection with the use of our Services and agrees to be bound by the
requirements of the Electronic Signatures in Global and National
Commerce Act (ESIGN), as amended.
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Notices.With the exception of service of legal process, inquiries and notices
should be addressed to
customer service.
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Service of Legal Process.
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If to Liquidity Services by a User:
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For service of legal process in the case of disputes in the
United States between Liquidity Services and a Self-Directed
Seller or a Buyer concerning this Agreement or our Services to:
Liquidity Services Operations LLC, c/o Corporation Services
Company, 251 Little Falls Drive, Wilmington, DE 19808, United
States. For transactions outside the United States, Sellers are
referred to the
Contracting Entity, Governing Law and Jurisdiction Policy
for instructions.
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If to a User by Liquidity Services:When User uses any of our Services, or sends emails to us, User
is communicating with us electronically. User consents to receive
communications by electronic means. We will communicate with User
by email or posting notices on our Site or through our Services
provided through our Site. User agrees that all agreements,
notices, disclosures and other communications that we provide to
User electronically including by posting on our Site, satisfy any
legal requirement that such communications be in writing.
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Listing Contract Between a Seller and a Buyer.Users should refer to their Listing Contract for the applicable
service of process, governing law and notice terms.
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Asset and Site Promotion.Except as otherwise agreed to by us in writing, each Seller grants to
us the right and license to use such Seller’s name and trademark in
connection with the Services that we provide to such Seller, including
the promotion of such Seller’s Assets or our general marketing to
attract Buyers to our Services; provided, however, that we will not
issue a press release concerning a Seller’s Assets or name Seller’s
organization in a press release without Seller’s consent. We are under
no express obligation to provide marketing for a specific Listing
unless engaged through a Managed Services Agreement or other written
agreement between a Seller and us.
12. Miscellaneous
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Severability.If any provision of this Agreement is held to be invalid, void or for
any reason unenforceable, such provision will be struck and will not
affect the validity and enforceability of the remaining
provisions.
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Assignability.In our sole discretion, we may assign User’s account and this
Agreement in whole or in part to any purchaser(s) of any of our
Marketplaces or all or a portion of our business. Users may not assign
this Agreement or their account without our prior written consent,
unless such assignment is undertaken as a sale of all or substantially
all User’s assets and provided that such User provides our
customer service
with prior written notice of the assignment, the name and address of
the assignee, a copy of the legal instrument assigning the contract
and the effective date of the assignment.
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Amendments.We may amend this Agreement (including any document incorporated
herein by reference) at any time by posting an amended Agreement with
its effective date on our Site. Such effective date shall be no less
than thirty (30) days from the date of posting. Our right to amend
this Agreement includes the right to modify, add to, or remove terms
in this Agreement. Unless otherwise specified, all amended terms will
automatically be effective thirty (30) from the date of posting on our
Site. A User’s continued use of our Site thirty days after our posting
of any amended Agreement will constitute such User’s acceptance of
such changes. User will not receive any other notice of a change in
this Agreement outside of the posting of the amended Agreement on our
Site.
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Choice of Language.It is the express wish of the parties that this Agreement and all
related documents be drawn up in English. C’est la volonté expresse
des parties que la présente convention ainsi que tous les documents y
afférents soient rédigés en anglais.
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Governing Law.Each User agrees that, except to the extent inconsistent with or
preempted by federal law, the laws of the State of Maryland, USA
without regard to principles of conflict of laws, will govern this
Agreement and any claim or dispute that has arisen or may arise
between Liquidity Services and a User. Any dispute arising under this
Agreement with Liquidity Services in the United States will be
litigated exclusively in the state or federal courts located in
Montgomery County, Maryland, USA, and User agrees that User will not
contest the personal jurisdiction of any court located in Montgomery
County, Maryland, USA. Notwithstanding the foregoing, Managed Services
performed by us from outside the United States are governed by our
Contracting Entity, Governing Law and Jurisdiction Policy, unless otherwise specified in a Managed Services Agreement or in a
mutually agreed written agreement.
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California Users.If User is a California resident, User may report, in accordance with
Cal. Civ. Code §1789.3, any complaints to the Complaint Assistance
Unit of the Division of Consumer Services of the California Department
of Consumer Affairs by contacting them in writing at 1625 North Market
Blvd., Suite N 112, Sacramento, CA 95834, or by tel. at
(800) 952-5210.
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Waiver.Our failure 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 be effective only for the
instance specified in writing. We may grant or withhold waivers in our
sole discretion.
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Timing of Payment.Time is of the essence in making all payments owed to Liquidity
Services, including, without limitation, payments of Seller’s
Commission and Buyer’s Premium owed to Liquidity Services pursuant to
a Listing Contract or a Seller’s or Buyer’s default thereunder. Unless
otherwise agreed to in writing, any Seller or Buyer failing to make
payment when due may be charged interest by Liquidity Services in its
sole discretion. Such interest on overdue amounts shall be charged at
the rate of 18% per annum or the maximum rate permitted by law,
together with legal or collection costs.
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Force Majeure.No party to this Agreement will be liable for performance delays,
underperformance or failures of performance under this Agreement if
such delay or failure results from a Force Majeure Event, excepting,
however, the obligation to pay amounts when due (which obligations of
payment are not excused by any Force Majeure Event).
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Records are the User’s Responsibility.We do not guarantee the preservation or maintenance of records
relating to User’s Transactions or our Services. We encourage Users to
keep individual records and an accounting of all activity conducted
through our Site.
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Multiple Registrations.We reserve the right, in our sole discretion, to limit the number of
registrations per User and we reserve the right to deactivate
duplicate registrations for a User or registrations by an
affiliate
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Sole Discretion.Any and all references in this Agreement to actions, rights,
decisions, options or waivers requiring sole discretion shall mean the
sole, absolute and unfettered discretion.
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Independent Contractors.No agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship is intended or created by this
Agreement.
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Service Provider.User acknowledges that Liquidity Services is entitled, without notice
to or consent from any User, to subcontract any of our contractual
obligations or assign any of our rights related to the provision of
Services to third parties selected by Liquidity Services.
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Entire Agreement.This Agreement, together with any policy, schedule or guideline
incorporated by reference into this Agreement and, in the case of
Sellers, any Managed Services Agreement or other mutually agreed
written agreement constitutes the entire understanding and agreement
between any User and Liquidity Services and supersedes all prior oral
and written statements of the parties.
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Counterparts.A Managed Services Agreement or any other written agreement executed
between a User and Liquidity Services may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument. Such agreements
may be executed and delivered by email in a portable document format
(.pdf), and delivery of the signature page by such method will be
deemed to have the same effect as if the original signature had been
delivered to the other party.
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Survival.The following Sections survive the expiration or any termination of
this Agreement:
Section 2, Restrictions on Use of Services; Section 4, Disclaimer
of Warranties Relating to Services; Section 5, Limitation on
Liability; Section 6, Defense and Indemnity; Section 7, Anti-Money
Laundering, Anti-Terrorism, Anti-Bribery and Anti-Corruption
Representation and Warranty; Section 8, Taxes; Section 11,
Communications & Notices; and Section 12, Miscellaneous.
Appendix A - Glossary of Defined Terms
“Agreement”
as defined in the preamble and means the User Agreement, as such may
updated from time to time in accordance with the Agreement’s terms and
conditions. For the avoidance of doubt, the Agreement succeeds those
certain Buyer & User Terms and Conditions dated October 21,
2019.
“Anti-Bribery and Anti-Corruption Policy”
means the
Anti-Bribery and Anti-Corruption Policy
that is incorporated into the Agreement.
“Asset”
means property made available by a Seller through the Services for
bidding upon or purchase by a Buyer. An Asset may be any form of
tangible, intangible or real property except as otherwise prohibited by
our
Prohibited Assets Policy
or our
Firearms and Live Ammunition Policy.
“Business Days”
means any day other than a Saturday or Sunday or a legal holiday in the
State or Country in which Liquidity Services, a Seller or a Buyer are
located, as applicable.
“Buyer”
in the appropriate context means a User of the Services who has
registered with Liquidity Services to bid upon or offer to purchase
Assets listed by Seller for auction or sale using the Services.
“Buyer’s Certificate”
is the bidder’s certificate or other such similar document that
Liquidity Services e-mails to Buyer that confirms that the Assets have
been paid in full in circumstances where Seller has engaged Liquidity
Services to provide Transaction settlement services.
“Buyer’s Premium”
means the Service fees charged by Liquidity Services to a Buyer as
expressly stated in a Seller’s Listing.
“Charge-Back”
means an attempt to rescind a credit card transaction without Liquidity
Services’ express advance written consent.
“Completed Transaction”
the point in time that both of the following criteria are satisfied:
(1) Seller or Liquidity Services receives Buyer’s payment in full (or
Buyer and Seller have agreed to payment terms from the time Buyer takes
delivery of the Assets); and (2) Buyer commences removal of the Assets
under Ex Works (EXW) terms or otherwise risk of loss transfers pursuant
to mutually agreed Incoterms® 2020 in a Listing Contract or
other written agreement between Seller and Buyer.
“Contracting Entity, Governing Law and Jurisdiction Policy”
means the
Contracting Entity, Governing Law and Jurisdiction Policy
that is incorporated into the Agreement.
“Export Policy”
means the
Export Policy
that is incorporated into the Agreement.
“Force Majeure Event”
means an event beyond the reasonable control of a party that delays or
prevents such party from performing any of its non-payment obligations
under this Agreement, including when it is commercially impracticable,
illegal or impossible to perform, due to events such as severe weather,
war or hostilities, insurrection, riot or civil unrest, strike or other
labor action, environmental contamination or release of radioactive,
chemical or biological agent into the atmosphere, epidemic, pandemic,
terrorist act(s) or threats of terrorism, cyber-attack, outage with
respect to a third-party hosting service (e.g. Microsoft Azure or Amazon
AWS) or similar events or threats of any of the foregoing.
“Intellectual Property Rights Policy”
means the
Intellectual Property Rights Policy
that is incorporated into the Agreement.
“Listing”
means a description of an Asset or Assets listed by a Seller for
auction or purchase. A Listing will typically include a picture and
description of the Asset, Seller information, inspection and payment
terms and removal and other special instructions. A Listing is a
solicitation by the Seller for a prospective Buyer to make a bid or
otherwise offer to purchase an Asset or Assets. A Listing is not an
offer by the Seller to sell.
“Listing Contract”
means the contract formed at the point a Seller accepts a Buyer’s bid
or offer to purchase through the Services, which, in turn, gives rise to
a Transaction (as defined below).
“Listing Contract Policy”
means the
Listing Contract Policy
that is incorporated into the Agreement.
“Listing Data”
means data or audio/video content transmitted to a User as part of the
Services or a User’s use of the Services.
“Managed Services Agreement”
means an Agreement between a Buyer and a Seller pursuant to which we
provide Managed Services.
“Managed Services Policy”
means the
Managed Services Policy
that is incorporated into the Agreement and that describes our Managed
Services and the terms that apply in the event we provide such Managed
Services.
“Managed Services Seller”
means a Seller that has engaged us to provide Managed Services through
a Managed Services Agreement or other mutually agreed agreement.
“Marketplace”
means a branded website and its collection of pages operated by
Liquidity Services, including
AllSurplus,
GovDeals,
Liquidation.com,
Liquidation.com Direct,
Network International, and
GoIndustry DoveBid.
“Privacy Policy”
means the
Privacy Policy
that is incorporated into the Agreement.
“Prohibited Assets Policy”
means the
Prohibited Asset Policy
that is incorporated into the Agreement.
“Restricted Party”
means any business or party listed on the
U.S. Department of Commerce Denied Persons,
Entity or Unverified Lists, the
U.S. Department of State’s Debarred and Nonproliferation Lists, or the
Specially Designated Nationals List, any
European Union Sanctions List, the
United Kingdom HMT List, any
United Nations Sanctions List, or similar or successor lists.
“Self-Directed Seller”
means a User for whom Liquidity Services has enabled the self-directed
sale Services of our Site. A User seeking to sell Assets as a
Self-Directed Seller must be pre-cleared to do so by us in our sole
discretion and have their User account configured to enable this feature
to work on the Site. Self-Directed Sellers are distinguished from
Managed Services Sellers with whom we separately engage with as an agent
and for whom we may provide listing of assets among other services that
we are engaged to provide.
“Seller”
means (i) a Self-Directed Seller; (ii) a person, entity or governmental
actor who has consigned an Asset to us or a third party to sell on a
consignment basis using our Services; or (iii) Liquidity Services, when
we are reselling an Asset purchased by us to which we hold title.
“Seller Terms”
means Seller’s terms and conditions applicable to a Listing that form
the basis of a Listing Contract between a Seller and Buyer. In auction
Listings, this is the Terms and Conditions hyperlink located in the bid
box of the Listing.
“Services”
means the technology, applications, tools, software and services
provided by Liquidity Services, whereby Liquidity Services configures,
operates, hosts and manages private Marketplace Sites allowing Buyers to
bid upon and purchase Assets from Sellers. Services include use of our
Sites and all related mobile and web services and tools.
“Site”
means the following list of Marketplace URLs operated by Liquidity
Services: AllSurplus,
GovDeals,
Network International, GoIndustry DoveBid,
Liquidation.com, and
Liquidation.com Direct. We reserve the right to add to, delete or change any of these
Marketplace URLs.
“Transaction”
means the Buyer’s bidding upon, offering to purchase, or other purchase
through the Services that is accepted by the Seller.
“User”
means a Buyer, a Self-Directed Seller or any Managed Services Seller
that has accepted the Agreement (or any prior Buyer & User Terms and
Conditions that the Agreement succeeds). A User may also include a guest
or visitor to the Site.
“VAT”
means value added tax as provided for in the
EU VAT Directive 2006/112/EEC
or similar tax in countries outside the EU.
Appendix B - Listing Contract Policy
This policy sets forth the terms on which a Buyer and a Seller enter
into a Listing Contract using our Services and the default terms that
apply in cases where: (i) the Seller does not specify a Listing
Contract; or (ii) the Listing Contract is otherwise silent as to any of
the below terms.
-
Listing as Solicitation of Interest from a Prospective Buyer to Bid
or Offer to Purchase Assets.Using the Services to create a Listing, a Seller sets the terms and
conditions on which the Seller will solicit interest from Buyers to
bid or otherwise make offers to purchase from Seller. From a
contractual standpoint, a Listing is a solicitation of interest from
prospective Buyers to make a bid or other contractual offer to buy
based on the pricing format set by Seller. A Listing is not an offer
to sell and a Seller must accept a Buyer’s bid or offer to purchase in
order to constitute a Transaction.
-
Seller Responsibilities When Soliciting Bids and Offers to Purchase
From Buyers Using our Services.To promote the integrity and successful operation of our Services,
the Seller agrees to:
-
accurately describe Assets in Listings to the best of its knowledge;
-
accurately describe the requirements applicable to Asset inspection,
payment, removal and any other special instructions relevant to the
Listing;
- promptly respond to questions of interested Buyers;
-
promptly complete Transactions with Buyers and properly update
Liquidity Services’ Seller tools to acknowledge Asset pick up, which
shall be no later than ten (10) Business Days from the time and date
of the delivery of Buyer’s Certificate by e-mail, unless a different
date and time is specified in a Listing Contract or mutually agreed
to in writing by Buyer and Seller;
-
not engage in any activity to circumvent the fees due to Liquidity
Services pursuant to the Agreement or a Managed Services Agreement;
and
-
not engage, directly or indirectly, in any activities intended to
manipulate or interfere with the bidding process, including shill
bidding (which is when a Seller bids on its own Assets or indirectly
directs or allows a third party to perform artificial bidding
against other legitimate bidders in an auction).
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Offer Made by Buyer.From a contractual standpoint, a prospective Buyer’s bid or other
offer to purchase is a contractual offer. A bidder in an auction
format or a prospective Buyer in other transaction formats is making
an
unconditional offer
to enter into a Listing Contract with the Seller. By submitting a bid
or offer to Purchase, Buyer agrees they have read, fully understand
and accept the Listing, the Listing Contract and the User Agreement.
Further, by submitting a bid or offer to purchase, Buyer agrees that
if such Buyer’s bid is accepted by Seller, Buyer will pay for and
remove the Assets (which removal will occur no later than ten (10)
Business Days from the time and date of the delivery of the Buyer’s
Certificate by e-mail, unless a different date and time is specified
in the Listing Contract or mutually agreed to in writing by Buyer and
Seller).
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Acceptance and Formation of Listing Contract.If a Buyer’s bid or offer to purchase is accepted by a Seller, a
Listing Contract is formed with respect to a Transaction. By accepting
a bid or offer to purchase, Seller agrees that Seller has read, fully
understands and accepts the Listing and the Listing Contract and
affirms its acceptance of the User Agreement.
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Identity of the Seller.A Seller for purposes of this Listing Contract Policy is: (i) a User
that has registered to use our Self-Directed Services to sell their
own Assets on our Site; (ii) a person, entity or governmental actor
who has consigned an Asset to us or a third party to sell on a
consignment basis using our Services; or (iii) Liquidity Services,
when we are reselling an Asset purchased by us to which we hold title.
A Buyer should refer to the Listing and Listing Contract to understand
the identity of the Seller. In certain instances, to protect the
confidentiality of a Seller, a Seller may be identified with a user ID
rather than its actual legal entity name.
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Terms and Conditions of Listing Contract.A Listing forms the basis of the Listing Contract. A Listing Contract
incorporates by reference a set of Seller Terms associated with the
Listing. The Seller Terms may be unique to a Seller or even unique to
a Transaction.
Buyers should carefully read the Listing and Seller Terms as caveat
emptor applies to every Listing Contract.
Each set of Seller Terms must incorporate by reference the terms of
this Listing Contract Policy, which serves as a floor for terms and
conditions of all Transactions conducted using our Services. The terms
of the Listing control over the Seller Terms and the Seller Terms
control over this Listing Contract Policy; provided, however, neither
a Listing nor Seller Terms may or shall be deemed to modify, amend or
otherwise alter Liquidity Services’ rights, obligations or liability
under the User Agreement. Oral statements by either Seller or Buyer
are non-binding unless such statements are reduced to writing in a
revised Listing. A Buyer is responsible for carefully reading the
Listing and Seller Terms at the time of bidding, as such Listing or
Seller Terms may be amended, modified or otherwise changed, including
based on answers to questions asked by prospective Buyers and in
response to inquiries regarding the types of transactions a Seller is
willing to support.
-
Seller Representations and Warranties.
-
Seller’s Warranty of Title.Seller represents and warrants to Liquidity Services and to Buyer
that it will deliver good and marketable title to its Assets, free
and clear of all liens and encumbrances at the time a Completed
Transaction occurs.
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Seller’s Limited Warranty of Description.By posting a Listing, a Seller provides a limited representation
and warranty of description to Liquidity Services and to Buyer
that the Assets conform to the description of the Assets in the
Listing.
-
Guaranty Waiver and Disclaimer of Representations and Warranties for
a Listing Contract.
-
EXCEPT AS EXPRESSLY STATED OTHERWISE IN WRITING IN THE LISTING
CONTRACT, IF BUYER PURCHASES ASSETS OR PLACES BIDS ON OR MAKE AN
OFFER ON OR ORDER ASSETS, BUYER AGREES TO ACCEPT SUCH ASSETS
AS IS, WHERE IS AND WITH ALL FAULTS.
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NEITHER LIQUIDITY SERVICES NOR SELLER ARE LIABLE TO A BUYER FOR ANY
PAYMENT FOR LOST PROFITS OR ANY OTHER MONEY DAMAGES, INCLUDING,
WITHOUT LIMITATION, EXEMPLARY, PUNITIVE, SPECIAL, LIMITED, DIRECT,
INDIRECT OR CONSEQUENTIAL DAMAGES; PROVIDED, HOWEVER THE FOREGOING
SHALL NOT BE DEEMED TO LIMIT BUYER’S EXPRESS REMEDIES IN THE EVENT
OF A DEFAULT AS SET FORTH BELOW OR AS OTHERWISE MODIFIED BY SELLER
AND BUYER IN A LISTING CONTRACT.
-
EXCEPT AS EXPRESSLY STATED IN WRITING IN THE LISTING CONTRACT,
LIQUIDITY SERVICES AND SELLER DISCLAIM TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW ALL WARRANTIES, EXPRESS AND IMPLIED,
WITH RESPECT TO THE ASSETS, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR THAT THE ASSETS ARE FREE FROM LATENT DEFECTS.
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NEITHER LIQUIDITY SERVICES NOR ANY SELLER MAKES ANY REPRESENTATIONS
OR WARRANTIES REGARDING THE QUALITY, NATURE, CONDITION, GENUINENESS,
AUTHENTICITY OR COMPOSITION OF THE ASSETS OR REGARDING THE
COMPLIANCE OF THE ASSETS WITH THE REQUIREMENTS OF ANY
SPECIFICATIONS, LAWS OR REGULATIONS. BUYER AGREES TO REPAIR, AT
BUYER’S COST, ANY ASSET PURCHASED TO A SAFE OPERATING CONDITION AND,
WITHOUT LIMITATION, TO A CONDITION THAT MEETS ANY STANDARD OR
REQUIREMENT OF ANY APPLICABLE AUTHORITY, LAW, RULE OR REGULATION
INCLUDING THOSE CONCERNING ANY USE TO WHICH THE ASSET MAY BE PUT.
-
BUYER IS SOLELY RESPONSIBLE FOR THE ASSETS’ ABILITY TO ACHIEVE THE
RESULTS BUYER INTENDS.
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LIQUIDITY SERVICES AND SELLER DISCLAIM ALL WARRANTIES AND OTHER
OBLIGATIONS ON ACCOUNT OF ANY CLAIM OF INFRINGEMENT OR
MISSAPPROROIATION OF PATENTS, COPYRIGHTS, OR OTHER INTELLECTUAL
PROPERTY OR PROPRIETARY RIGHTS IN CONNECTION WITH THE ASSETS.
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UNLESS EXPRESSLY STATED OTHERWISE IN A LISTING, PHOTOGRAPHS, VIDEO,
WRITTEN DESCRIPTIONS AND OTHER CONTENT ARE NOT INTENDED AS
REPRESENTATIONS OR WARRANTIES BUT ARE PROVIDED SOLELY TO AID BUYER
IN DETERMINING WHICH LISTINGS BUYER WILL PHYSICALLY INSPECT AND BID
ON.
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Inspection and Waiver of Seller’s Limited Warranty of
Description.
-
General Rule – Buyer Should Inspect Prior to Bidding or Making an
Offer to Purchase; Bidding or Offering to Purchase Waives Seller’s
Limited Warranty of Description as to Such Buyer.If a Buyer bids or offers to purchase Assets without having
inspected the Assets, Buyer does so at its own risk. Except as set
forth in Exception 1 and Exception 2, below, Buyers are in most
instances afforded access to inspect Assets prior to bidding or
making an offer to Seller. From its inspection, a Buyer should
satisfy itself with the condition, features and functionality of
the Assets prior to bidding. Where Assets are made available to a
prospective Buyer, Buyer waives Seller’s limited warranty of
description at the time of bidding or at the time it offers to
purchase the Assets. Sometimes, inspection requires an advance
appointment or viewing Assets at specified public viewing times.
If a Buyer needs specific advice (e.g., engineering, scientific,
risk management, appraisal, valuation, legal), a Buyer should seek
this from a third-party professional and not rely on the Listing
or Seller. Buyer is solely responsible for selecting the
appropriate Assets for Buyer’s needs. Except as set forth below in
Exception 1 and Exception 2, below, all sales are final.
This waiver of Seller’s limited warranty of descriptions
applies even if Buyer does not avail itself of the opportunity
for inspection.
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Exception #1 – Rule for when Seller Provides No Inspection Until
Immediately Prior to Removal.If a Seller only permits inspection immediately prior to or at
the time of removal, a Buyer is deemed to irrevocably waive
Seller’s limited warranty of description at the time it commences
removal of the Assets. No disputes will be processed after
commencement of removal of the Assets from the location of the
Assets by Buyer or by Buyer’s third-party agent, shipper or
carrier. This exception does not apply if Buyer has been given the
opportunity for inspection and did not avail itself of such
opportunity.
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Exception #2 – Rule for Deliveries of Retail Goods Made Free
Carrier (FCA) Buyer’s Location on Liquidation.com or
Direct.Liquidation.com.In limited circumstances, a Seller using Liquidity Services’
Liquidation.com or Liquidation.com Direct marketplaces may only
permit Buyer to inspect Assets once the Assets are received by
Buyer at its designated location. This most frequently occurs with
“black wrap” pallets wherein a retailer creates the pallet and
bill of lading and the pallet is sold with no processing by
Liquidity Services or, alternatively, with a truckload of Assets
that are routed directly from a retailer to a Buyer after the
winning bidder is identified. In such circumstances, Buyer must
make a claim for any incorrect or inaccurate Listing description
of the Assets within three (3) Business Days after delivery of the
Assets to Buyer. Thereafter, Buyer waives any right to make a
claim against Seller for breach of Seller’s limited warranty of
description in a Transaction. Liquidity Services’ customer service
department accepts and reviews legitimate claims solely as a
service. Where Buyer has a legitimate claim, as determined by
Liquidity Services in its sole discretion, refunds or returns of
merchandise must be approved by Liquidity Services’ customer
service department. All decisions of the customer service
department are final. Any attempt to rescind a payment or return
Assets prior to an authorization by Liquidity Services will cause
a delay of claim resolution and may adversely affect Buyer’s
ability to transact additional business on our Site. Unauthorized
returns will be refused at delivery. When a return is authorized,
we or the Seller will perform a full inspection of all Assets upon
return and units must be the same as when shipped to Buyer
(including serial numbers, accessories, etc.) to be eligible for a
full refund. Title to Assets remains with Buyer until the returned
Assets are delivered to Liquidity Services or the Seller, as the
case may be. Buyer agrees that Liquidity Services is not
responsible for examining or warranting the description of the
Assets in any Listing or any content provided by Seller unless
Seller is Liquidity Services and acting in its own capacity as a
Seller in preparing the Listing.
-
Corrections by Sellers of a Listing Description After a Bid or Offer
to Purchase.In the event a Seller amends a Listing to correct any material
errors, inaccuracies or omissions in a Listing, Buyer may withdraw its
bid or other offer to purchase. Liquidity Services reserves the right
to extend the deadline for bidding when a change to the Listing occurs
within 48 hours prior to the scheduled conclusion of bidding on an
Asset.
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Revocation of Seller’s Acceptance.A Seller may revoke its acceptance of Buyer’s bid or other offer to
purchase at any point in time on or prior to a Completed Transaction
occurring. In the event of revocation, Buyer shall be entitled to a
full refund of the purchase price and any Buyer’s Premium paid but
shall not be entitled to any other remedy.
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Void Listing Contracts.A Listing Contract is void ab initio (to be treated as invalid at the
outset) for any Buyer that fails to meet the requirements of a
Listing, as determined by Liquidity Services in its sole discretion,
or for which the Assets violate our
Prohibited Items Policy. For example, a Listing that is restricted to only law enforcement
agencies will be void ab initio if the Buyer fails to provide
identification at the time of pick-up that it is a law enforcement
agency. A Buyer shall be liable to Seller for all reasonable costs and
expenses incurred by Seller in reliance on Buyer’s offer to purchase
that has been voided.
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Title.Unless a Listing Contract provides otherwise, title to Assets
transfers at the point in time a Completed Transaction occurs.
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Risk of Loss.Unless a Listing expressly provides to the contrary, all Transactions
are Ex Works (EXW) location of the Assets specified in the Listing
using Incoterms® 2020 rules. Under these default terms, if
a Buyer has paid in full under the Listing Contract and then commences
removal of the Assets, all risk of loss shifts to Buyer and Buyer is
solely responsible for insuring and transporting the Assets. Export
Transactions shall comply with the terms of our
Export Policy.
-
Vehicle Titles and Certificates of Ownership.Seller will provide a certificate of title or ownership to Buyer at
the time of Buyer’s removal of any vehicle the title to which is
evidenced by a certificate of title. Titles may be subject to such
restrictions as may indicated in the Asset description on the Site. In
certain instances, a vehicle may be sold without title as salvage, in
which case no title will transfer, caveat emptor applies, and a Buyer
must satisfy for itself whether it can obtain a certificate of title
from a governmental agency without Seller’s support if it desires a
certificate of title.
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Personal and Property Risk During Inspection and Removal under a
Listing Contract.Persons present for the exhibition, sale, or removal of Assets accept
and assume all risks of damage or loss to person and property and
expressly waive and release Seller and Liquidity Services from any and
all liability on account of such person’s loss to person or property
arising out of or attributable to being so present, except to the
extent solely caused by the willful misconduct or gross negligence of
Seller or Liquidity Services as the case may be. Such persons further
agree not to make or bring any such claim against Seller or Liquidity
Services, its affiliated and related entities, and their respective
shareholders, members, directors, officers, employees, agents,
representatives, and permitted successors and assigns, and forever
release and discharge all such parties from liability under such
claims.
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Payment for Assets Under a Listing Contract.
-
Payment Instructions.A Listing sets the instructions on payment and transaction
settlement. In some cases, Seller engages Liquidity Services to
handle invoicing, receive payment on behalf of Seller and
otherwise handle the mechanics of transaction settlement. In other
cases, Seller receives payment and transaction settlement
directly. If no payment instructions are set in the Listing,
payment in full should be made to Liquidity Services as an agent
on behalf of the Seller.
-
Payment in Full.For a Buyer to make payment in full, such Buyer must pay the
applicable winning bid or hammer price, any applicable taxes,
Buyer’s Premium and any additional fees as described in the
Listing or amounts otherwise owed by Buyer or Liquidity Services
with respect to its account with Liquidity Services. Generally, a
Buyer’s Premium is required and is typically expressed as a
percentage of the sale price to compensate Liquidity Services for
providing the Services. To the extent Buyer owed Liquidity
Services for any fees for Services provided to the Buyer, those
fees must be paid as well.
-
Currency of Payment.Payment shall be made in the currency specified on the relevant
Listing. If currency is not specified, the default currency will
be U.S Dollars. Any bank charges in respect of conversion or
transfer of monies shall be borne by Buyer in respect of
bids.
-
State/Local Sales and/or Use Tax.Buyers may be subject to sales, use and/or value-added taxes.
Buyers are responsible for contacting
customer service
or the appropriate tax authority office, completing any requisite
forms and paying any taxes that may be imposed. Buyers must
provide any applicable tax exemption documents (for example,
exemption from sales tax as a registered reseller) to Liquidity
Services at the latest within 24 hours after notice to Buyer that
it has been selected by Seller as Buyer.
-
Method of Payment.Unless otherwise permitted by Liquidity Services, payment shall
be made via bank wire transfer. Cash payments are not permitted.
Liquidity Services, in its sole discretion, may permit Buyer to
pay via credit card if payment in full is less than current limit
set forth on the Site. Liquidity Services reserves the right to
restrict certain Buyers from using credit cards. No charges will
be made to the credit card until the bid or offer to purchase has
been accepted by Seller. Liquidity Services reserves the right to
charge a $25.00 fee for any rejected credit card
transaction.
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No Third-Party Funds.Except with a cashier’s check or money order from a financial
institution or as otherwise approved by Liquidity Services in
advance in writing, all funds must come from Buyer (or in the case
of a legal entity, an affiliate, parent or subsidiary of Buyer)
and Liquidity Services will not accept third-party funds of any
kind.
-
Charge-Backs.In the event of a Charge-Back, Liquidity Services may, in its
sole discretion, immediately and permanently deactivate a Buyer’s
account. If Buyer performs a Charge-Back after receiving the
Assets, Seller or Liquidity Services may file charges with the
appropriate law enforcement agency and Seller and Liquidity
Services each reserve the right to pursue all remedies available
to Seller or Liquidity Services to recover any incurred
damages.
-
Holds.Liquidity Services reserves the right to restrict access to funds
in a Seller account based on certain factors, including, but not
limited to, Transaction history, performance, riskiness of the
Listing category, government inquiry or investigation, an alleged
claim or Liquidity Services’ investigation of an alleged breach of
this Agreement or a breach by the Seller of its agreement with
Liquidity Services, or a dispute.
-
Set-Offs.Liquidity Services reserves the right to set-off any fees or
other amounts a Buyer owes Liquidity Services for any reason from
any of Buyer’s funds in Liquidity Services’ possession or that are
paid or received from Buyer for one or more purchases of Assets.
Liquidity Services reserves the right to set-off any fees or other
amounts a Seller owes Liquidity Services for any reason from any
of Seller’s funds in Liquidity Services’ possession.
-
Capacity of Liquidity Services with respect to transactions in
the United Kingdom and the European Union.Other than when Liquidity Services acts as a reseller for its own
account (i) Seller authorizes Liquidity Services as its agent to
receive payment for the Asset(s); (ii) Seller appoints Liquidity
Services as its agent and has the authority to negotiate sales of
Assets on behalf of such Seller; (iii) Seller appoints Liquidity
Services as its agent with the authority to negotiate and conclude
sales of Assets on behalf of such Seller; (d) Liquidity Services’
receipt of payment from the Buyer will fulfil or satisfy the
Buyer’s obligation to pay the purchase price to the Seller. In no
instances does Liquidity Services act as agent for the
buyer.
-
Removal of Assets Under a Listing Contract.
-
Listing Explains Seller’s Removal Requirements.The Listing will describe the removal process and specific
requirements of Seller. In most cases, Seller engages us to handle
Transaction settlement on behalf of Seller. In such instances,
Liquidity Services will e-mail a Buyer’s Certificate to the Buyer
as confirmation that Buyer has paid in full for the Assets
described in the Listing Contract.
Buyers’ Certificates will be released only upon receipt of
payment as specified in the Listing and only to the extent that
a Buyer is in good standing with respect to its accounts with
Liquidity Services.
-
Buyer’s Responsibility Starts at Time Buyer Commences
Removal.Unless otherwise agreed to in writing between Seller and Buyer,
Buyer is responsible for the removal, loading, transportation,
export, import, unloading, and, if applicable, reassembly or
start-up of the Assets. Absent the express written agreement of
Seller, Seller will not perform the role of shipper or exporter.
Absent the express written agreement of Liquidity Services,
Liquidity Services will not perform the role of shipper or
exporter.
-
Buyer is Responsible for Health & Safety of Its Employees,
Agents & Contractors.Buyer is responsible for its and its employees’, agents’ and
contractors’ compliance with all applicable laws and regulations
for the removal, transportation, reassembly and use of an Asset.
Buyer is responsible for any damage to property, including spills
or releases of hazardous substances, which might occur during the
removal process. Buyer is responsible for ensuring that Buyer’s
employees, agents and contractors understand the health, safety
and environmental site rules at the location where removal is to
occur. If Buyer brings employees or third parties to attend or
assist in the removal of Assets, Buyer assumes all risks of damage
of or loss to their person and property and agrees to defend and
indemnify Seller and Liquidity Services from any and all liability
for such risks. Buyer agrees to defend, indemnify and hold
harmless the Liquidity Services Indemnified Parties and Seller
from any Claim made by any third party due to, arising out of or
attributable to Buyer’s or its agent’s removal of Assets,
including without limitation, all damage or loss to person or
property. Buyer is responsible for all damage to property,
including spills or releases of hazardous substances, that occurs
during the Asset removal process.
-
Buyer Assumes Responsibility for Compliance with Applicable
Environmental Laws and other Regulations.Buyer must comply with all applicable environmental laws when
removing, transporting, reassembling, using and disposing of
Assets, including all laws related to waste disposal, air
emissions, discharges, toxic substances and hazardous waste
disposal. If Buyer disposes of consumer electronics purchased
through our Site or Services, Buyer must dispose of such
electronics using a certified electronics recycler (for example,
R2 or eSteward certified), and failure to do so may subject
Buyer’s account to restriction or deactivation, and other legal or
equitable remedies that may be available to us. For the avoidance
of doubt, Liquidity Services has no duty to remove any hazardous,
toxic, corrosive, reactive or ignitable substances that are
contained in or are a part of any Asset. Certain Assets may have
components, parts, constituents or ingredients that may be
corrosive, reactive, and ignitable or exhibit other hazardous or
toxic properties. Buyer agrees to remove, use and ultimately
dispose of any hazardous components or constituents according to
all applicable laws and regulations in a manner safe for the
public and the environment. Certain Assets or components of Assets
may contain residual chemicals, friable asbestos, petroleum
products and ozone depleting substances or other hazards. Buyer
acknowledges and agrees that neither the Seller nor Liquidity
Services is responsible for providing documentation or
certification regarding the identification or status of these
substances. Certain Assets may not necessarily comply with the
Health and Safety at Work Etc. Act 1974, Environmental Protection
Act 1990 or any other UK and/or EC Acts, Regulations, Directives
or other applicable, equivalent or similar laws in any relevant
jurisdiction. Buyer acknowledges that some items in the Listing
may not, or no longer, conform to the terms of the EU Directive on
Machinery as implemented in the National Legislation of the
relevant Member Country. Buyer shall determine to its satisfaction
whether any lot is in conformity. Supporting documents that are
not mentioned in the description of the Asset are not available.
Buyer shall export from the EEA or upgrade within six months, any
Asset purchased that is non-conforming and prior to export or
upgrading, Buyer will not permit such Asset to be put into use or
traded. Neither Liquidity Services nor any Seller makes any
representation or warranty that the Assets offered for sale are
importable into any country or that all supporting documentation
is available. Buyer agrees that any item purchased for importation
into any country will be imported in compliance with all
applicable laws and regulations of that country.
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Buyer Required to Have Insurance Covering Its Loading and
Transportation of Assets.To remove the Assets from Seller’s location, a Buyer and its
agents must maintain adequate automobile and commercial general
liability insurance, and minimum legally required workers
compensation insurance for Buyer’s employees picking up the
Assets. Upon request, Buyer will provide Liquidity Services and
Seller with proof of such insurance and will name Liquidity
Services and Seller as additional insureds under Buyer’s policies
to the extent permitted by law.
-
Time Period for Removal.All Assets must be removed by Buyer within ten (10) Business Days
from the time and date of the delivery of Buyer’s Certificate by
e-mail, unless a different time and date is set by the Listing
Contract or Buyer and Seller mutually agree otherwise in writing.
Buyer is responsible for loading and removing all Assets subject
of a Listing as identified in Buyer’s Certificate. Buyer will make
all arrangements and perform all work necessary, including
packing, loading and transportation of the Assets of a Listing.
Under no circumstances will either Liquidity Services or Seller
assume responsibility for packing, loading or shipping. See
instructions in each Listing for complete removal details.
-
Time is of the Essence in Removing Assets.Time is of the essence with respect to removal of Assets. Buyer
may have to schedule an appointment in advance with Seller. For
complex removals, Seller may require certain of its employees or
agents to be available at the time of removal. Buyer may also need
to provide removal method statements and/or risk assessments (to
the reasonable satisfaction of the Seller) and proof of additional
insurance beyond that specified above where the Assets require
dismantling, rigging or hot cutting (or as otherwise required by
the Seller).
-
Unwanted Assets and Dunnage.Unless stated otherwise in a Listing, most Assets include dunnage
(cartons, pallets, shrink-wrap, bands, crates, etc.), and Buyer
must remove the entire lot of Assets, including dunnage. Buyer is
responsible for the disposal of Buyer’s unwanted Assets and
dunnage and, if Buyer fails to do so, Seller or Liquidity Services
can charge Buyer the costs of such disposal by a trash or disposal
company, plus a fee equal to 10% of the cost of such trash or
disposal costs. Buyer agrees to defend, indemnify and hold
harmless the Liquidity Services Indemnified Parties and Seller
against all Claims brought by third parties related to your
failure to remove any Assets.
-
Timing of Payment.Time is of the essence in making payment. Unless otherwise stated
in the Listing, in a Service Order Confirmation from Liquidity
Services or in a separate written agreement between Seller and
Buyer, Buyer must make payment by the deadline set by the Listing
or if no deadline is set in the Listing, within five (5) days
after Buyer is notified that Seller has accepted Buyer’s offer to
purchase. No extensions of the payment period will be granted.
Buyer agrees to pay interest on overdue amounts at the rate of 18%
per annum or the maximum rate permitted by applicable law,
together with any legal or collection costs incurred by Liquidity
Services and/or Seller.
-
Default by Seller and Buyer’s Remedies.If Seller breaches its obligations under a Listing Contract and such
breach is not cured within five (5) Business Days after written notice
to Seller of its breach, Seller shall be in default and Buyer may, in
its sole discretion, take either of the following actions:
-
Waive the default, subject to the condition that Seller promptly
present a written amendment to the Listing Contract setting forth
new performance obligations satisfactory to Buyer, in its sole
discretion, with such waiver being effective only upon execution by
both Buyer and Seller of a mutually agreeable amendment to the
Listing Contract; or
-
Terminate the Listing Contract, in which case Buyer will be refunded
all amounts paid to Seller or Liquidity Services pursuant to the
Listing Contract.
If a Force Majeure Event occurs before Seller’s default, the cure
period shall be extended for the duration of the Force Majeure
Event.
-
Default by Buyer and Seller’s Remedies.If Buyer breaches its obligations under a Listing Contract and such
breach is not cured within five (5) Business Days after notice by
Seller (or by Liquidity Services if Liquidity Services is acting as
agent for a Managed Services Seller) to Buyer (except for payment
obligations for which there shall be no cure period), Buyer shall be
in default and Seller shall be entitled to any of the following
remedies:
-
In the event of a non-monetary default, waive such default, subject
to the condition that Buyer promptly present a written amendment to
the Listing Contract setting forth new performance obligations
satisfactory to Seller, in its sole discretion, with such waiver
being effective only upon the execution by both Seller and Buyer of
a mutually agreeable amendment to the Listing Contract;
-
In the event of a failure of Buyer to pay any amount when due,
terminate the Listing Contract and Buyer shall pay to Liquidity the
Buyer’s Premium that would have been paid but for Buyer’s default;
-
In the event of a failure to remove the Assets, either:
-
declare the Asset to be in Seller’s storage, at which point the
existing Buyer’s Certificate will be cancelled and a $50 daily
storage fee shall be charged. Liquidity Services will issue to
Buyer a new Buyer’s Certificate and Buyer shall be permitted to
remove the Assets only after it pays the storage fees in full to
Liquidity Services. Storage fees shall be split between Seller
and Liquidity Services to offset Buyer’s storage costs and
Liquidity Services’ additional labor and processing costs
incurred as a result of the delay; or
-
declare that Buyer has abandoned the Assets, terminate the
Listing Contract, and then reclaim and resell the Assets. If the
Assets are declared abandoned, Liquidity Services shall deduct
the greater of $200 or the amount of its Buyer’s Premium from
the amount paid by Buyer for the abandoned Assets (the “Buyer Default Funds”). The remaining Buyer Default Funds shall be offset as
follows: (1) Seller shall be entitled to retain the full amount
of the remaining Buyer Default Funds if Seller exercises
commercially reasonable efforts to sell the Assets and is
unsuccessful within the 45 calendar day period following
Seller’s declaration of abandonment; or (2) if Seller is able to
resell the Assets, then Seller shall be entitled to retain such
portion of the remaining Buyer Default funds equal to the
positive difference, if any, between Seller’s resale recovery
and the recovery that Seller would have achieved if Buyer had
performed.
-
Listing Contract Disputes.
-
Disputes Between Users.Each User is solely responsible for its direct interactions with
other Users. Liquidity Services reserves the right, but has no
obligation, to monitor disputes between Users. Liquidity Services
will have no liability for a User’s interactions with another
User, or for any User’s acts or omissions.
-
Governing Law and Jurisdiction.The applicable governing law, jurisdiction for venue and forum
and any jurisdiction specific clauses will be in accordance with
the Listing Contract. If the Listing Contract is silent, Appendix
F (Contracting Entity, Governing Law and Jurisdiction Policy)
shall apply with respect to the terms of the Listing Contract. No
Listing Contract may change the governing law and jurisdiction
with respect to disputes under the User Agreement with respect to
a User and Liquidity Services.
-
Unit Price Transactions and Variances.When Assets are sold on a per unit price basis, Seller may
reserve the right to vary the quantity delivered by a percentage
expressly disclosed in the Listing. In such cases, Users agree to
accept any quantity within such disclosed variance limits. Outside
such limits, the purchase price will be adjusted upwards or
downwards based upon the quantity actually delivered and accepted
by Buyer. Buyer agrees to cooperate with and provide all
applicable documents to Liquidity Services’ customer service
department in the event of a dispute regarding variances.
Appendix C - Export Policy
-
Default Rules for Shipping Arrangements and Shifting of Risk of
Loss
-
Default of Ex Works (EXW) Location of Assets.Unless specified otherwise in a Listing, delivery of Assets is Ex
Works (EXW) the location of Assets Incoterms® 2020. Ex
Works (EXW) is defined by
International Chamber of Commerce. Generally, this means: Seller makes the Assets available at the
location identified in a Listing; Buyer coordinates and pays for
all removal, loading and transportation costs (including, truck,
ship or plane transportation); and at the point at which the
Assets are made available to Buyer, Buyer is responsible for all
risks of loss.
-
Modifications as to Default Ex Works (EXW) Terms.Under standard Ex Works (EXW) Incoterms® 2020 terms, a
Seller agrees to execute paperwork for export of assets provided
the Buyer pays for all costs. The Agreement modifies this rule to
provide that a Seller in the United States is only obligated to
act as an exporter of record in the event that an Asset does not
require an export license to the destination and its export is not
otherwise prohibited by rules promulgated by the U.S. Office of
Foreign Assets Control (which prohibit, for example, export to
citizens and corporations in Cuba, Iran, North Korea and Syria)
and other sanctions laws applicable to a Transaction. Accordingly,
we expect that Sellers will be willing and able to export Assets
not restricted by sanctions and otherwise designated as EAR99 in
the U.S. (i.e., not listed with a specific Export Control
Classification Number (ECCN) on the Commerce Control List (CCL)
maintained by the U.S. Department of Commerce) or its equivalency
in other countries of export. Stated a different way, Seller will
act as exporter provided an export license is not required. If
Seller agrees in writing to act as the exporter of record, it
remains the case per Ex Works (EXW) that Buyer will pay for all
export costs, including reasonable costs and expenses of an export
broker to assist Seller in preparing the required export
documentation.
In the case of a Seller located in the European Union or the
United Kingdom the same modifications to the standard Ex Works
(EXW) Incoterms® 2020 terms apply and as such a Seller
agrees to act as an exporter of record and to assist in the proper
and effective completion of any necessary EU or UK customs
procedures or formalities in order to facilitate a transaction. In
addition, in relation to transactions with a Seller located in the
EU or the UK, Liquidity Services will not act, and should not be
reported or recorded, as an exporter of record in respect of any
Assets unless, exceptionally, otherwise agreed separately in
writing expressing its consent to perform such customs functions
and, in each such instance, such consent may only be granted for
specific and individual transactions. Each Buyer and Seller hereby
indemnifies Liquidity Services for any damage, costs, penalties,
fines, interest, lost profit and/or any other injury suffered or
sustained as a result of a breach or violation of this prohibition
and the use of its identity as an exporter of record without its
knowledge.
-
Sellers May Modify Listings to Provide Alternative Shipping
Arrangements and Shifting of Risk of Loss.Sellers who believe their recovery will be maximized by allowing
export of the goods are encouraged to include in the Listing the
applicable Incoterms® 2020 rules that they will accept,
if different from this default rule.
-
Routed Export Transactions in the United States.A non-U.S. Buyer may hire a U.S. agent to export an Asset. If so,
the Transaction will be structured as “routed export transactions”
as defined in 15 C.F.R. § 758.3 and 15 C.F.R. § 30.3. In the event
that a Buyer seeks to export Assets purchased on our Site, Buyer
will be (a) the U.S. Principal Party in Interest; or (b) if Buyer
is not eligible to be the U.S. Principal Party in Interest, Buyer
will authorize a U.S. agent to be the “Exporter” in accordance
with the Foreign Trade Regulations, 15 C.F.R. Part 30, and the
Export Administration Regulations, 15 C.F.R. Parts 730-774. We
will not release an Asset sold to a Buyer outside the United
States unless and until all appropriate documentation has been
provided to Liquidity Services to establish a “routed export
transaction.” For the avoidance of doubt, Liquidity Services will
not act as the U.S. Principal Party in Interest.
-
Compliance with Export Laws is Responsibility of the User and
Liquidity Services is Not a Customs Broker.Export controls and sanctions are administered by several U.S.
Government agencies including, but not limited to: (a) the
Directorate of Defense Trade Controls (“DDTC”), which administers export controls applicable to defense
services, defense articles, and related technical data controlled
under the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Parts 120-130 (“ITAR”); (b) the Bureau of Industry and Security (“BIS”), which administers export controls applicable to certain
defense, commercial, and “dual-use” items, software, and
technology under the Export Administration Regulations (“EAR”), 15 C.F.R. Parts 730-774EAR; and (c) OFAC the Office of
Foreign Assets Control (“OFAC”), which prohibits certain activities relating to sanctioned
countries, persons, and activities. This paragraph is not intended
to be a comprehensive summary of applicable laws. Compliance with
all applicable laws is the responsibility of each User. Liquidity
Services shall have no liability for any export which is not
conducted in accordance with applicable law. Each User represents
and warrants to Liquidity Services that they shall comply with all
applicable laws, including, but not limited to, FTR, EAR and ITAR,
including screening all known parties to the Transaction against
the DDTC, BIS OFAC and other applicable Restricted Party lists.
Notwithstanding the foregoing, Liquidity Services uses a
third-party vendor to screen Buyers against the Restricted Party
lists in order to provide an automated screening tool built into
the functionality of the Site. In the event that Liquidity
Services or a Seller determines that a Transaction potentially
could violate applicable export controls or sanctions laws,
Liquidity Services or such Seller, as applicable, is excused from
performance until such concern is resolved to Liquidity Services’
or such Seller’s satisfaction, as the case may be.
-
Compliance with U.S. Sanction Laws.Liquidity Services and each of its subsidiaries world-wide comply
with U.S. sanctions laws, and the sanctions laws of the countries
within which each operates. Under various U.S. sanctions programs, an
Asset may not be acquired for, shipped to, transferred (in-country),
or re-exported, directly or indirectly, to or for (a) any Restricted
Party; (b) countries subject to U.S. sanctions; or (c) restricted
end-uses such as, but not limited to, weapons of mass destruction,
nuclear activities, chemical/biological weapons, or missile projects,
unless specifically authorized by the U.S. Government for such
purposes. Each User agrees that it will comply strictly with all U.S.
law, as well all other applicable law, such as the law of the country
in which the Assets are located and assumes sole responsibility for
obtaining appropriate authorizations from the applicable government to
export, re-export or transfer as may be required.
-
Cooperation.Users agree to cooperate fully with any request from Liquidity
Services relating to such User’s compliance with this Policy,
including, but not limited to, providing copies of shipping records or
allowing Liquidity Services to inspect original documents upon
request.
-
Warning Regarding Failures to Comply.A User’s failure to comply with the export and sanctions laws of the
U.S. or any other applicable country may result in fines and
penalties, up to and including imprisonment and detention, seizure, or
forfeiture of the purchased Asset, in addition to delays in the
delivery or use of a purchased Asset.
Appendix D - Intellectual Property Rights Policy
-
Trademarks and Publicity.A User has no right to display or use Liquidity Services’ tradenames,
domain names, trademarks or service marks without our express written
permission, which we may withhold in our sole discretion.
-
Liquidity Services’ Ownership of Intellectual Property Related to our
Services and Site.You acknowledge and agree that our Services (which include
applications, tools, and software) include proprietary and
confidential information protected by intellectual property and other
laws. You further acknowledge and agree that the content of the Site
is protected by copyrights, trademarks, service marks, patents or
other intellectual property and proprietary rights and laws.
-
Listing Data.You agree that you will not: (i) record, store, duplicate, reproduce,
re-broadcast or otherwise exploit any Listing Data transmitted to you
as part of our Services or your use of the Site; (ii) frame or utilize
any framing technique to enclose any Listing Data; (iii) decompile,
decode, disassemble, reverse engineer, reverse assemble or otherwise
attempt to discover any source code or the architectural framework for
any software within or associated with the Site; or (iv) access the
Site for purposes of developing, marketing, selling or distributing
any product or service that competes with or includes features
substantially similar to the Services or any other products or
services offered by Liquidity Services. We own all right, title and
interest in, or have a valid license in, all Listing Data.
-
Ownership of Intellectual Property in Assets.You acknowledge that any software or intellectual property rights
appurtenant to an Asset may not be the property of the Seller or
capable of transfer by the Seller unless expressly stated in a
Listing. Neither the Seller nor Liquidity Services is in any way
authorizing the use by you of such software or intellectual property
rights and any use of such software or exploitation of such
intellectual property rights shall be at your sole risk.
-
Copyright & Intellectual Property Policy.We respect the intellectual property of others and expect our Users
to do the same. We respond to notices of alleged copyright or other
intellectual property infringement. If you believe that your
copyrights or other intellectual property rights have been infringed
by postings of others through the Site, you should contact our
Copyright Agent (as set forth below) and provide the following
information: (i) an electronic or physical signature of the person
authorized to act on behalf of the owner of the copyright or other
intellectual property interest; (ii) a description of the copyrighted
work or other intellectual property that you claim has been infringed;
(iii) a description of where the material that you claim is infringing
is located on the Site; (iv) your address, telephone number, and email
address; (v) a statement by you that you have a good faith belief that
the disputed use is not authorized by the copyright owner, its agent,
or the law; and (vi) a statement by you, made under penalty of
perjury, that the above information in your notice is accurate and
that you are the copyright or intellectual property owner or
authorized to act on the copyright or intellectual property owner’s
behalf.
-
Seller Content.To ensure that a Seller is giving potential Buyers an accurate
description of its Assets, and to ensure that a Seller is not
infringing on anyone else’s content rights, Self-Directed Sellers
should write their own descriptions and use their own images.
-
Disclaimer of Third Party Content.While we may provide links to third-party sites and services on our
Site, they are provided to you solely for informational purposes. You
agree that we are not responsible or liable for (a) the availability
or accuracy of such sites, services or resources; (b) the content,
advertising or products on or available from such sites or resources;
or (c) the privacy policies and data collection, use or retention
practices of such sites. The inclusion of any link on our Site does
not imply that we endorse the linked site. You use such links solely
at your own risk.
-
Notifications for Copyright and Trademark Infringement.Liquidity Services’ designated agent to receive notifications of
claimed infringement can be reached at:
Copyright Agent, c/o Legal Department
Liquidity Services, Inc.
6931
Arlington Road, Suite 200
Bethesda, Maryland 20814
E-mail:
copyrightagent@liquidityservices.com
Phone: 202-467-6868
For additional information regarding this procedure, please reference
17 USC 512.
Appendix E - Managed Services Policy
Liquidity Services offers the following Services on each of its
Marketplaces:
-
Managed Services.Liquidity Services will act as agent for Seller to manage the sale of
Seller’s Assets using our Services (such Services, “Managed Services”)
pursuant to a written Managed Services Agreement that specifies the
Assets that Seller is consigning to us on an exclusive basis for
auction or sale. Managed Services may include, but are not limited
to:
- Channel optimization services;
- Marketing and promotion services;
- Asset lotting and merchandising services;
- Product information enhancement services;
-
Logistics services, such as storage, inventory management,
cataloging, testing, refurbishment and de-labeling services;
- Outbound fulfillment services; and
-
Settlement and support services, such as buyer qualification,
collection, settlement and transaction tracking and reporting
services.
The above list is a sample of Managed Services offered. Liquidity
Services is only obligated to provide a Seller with those Managed
Services Liquidity Services has agreed to perform in the applicable
Managed Services Agreement.
-
Commission.Upon the sale and collection of proceeds of an auction or sale by
Liquidity Services, Liquidity Services will be paid a commission of
the sale price set in the Managed Services Agreement, which Liquidity
Services will deduct from the sale proceeds prior to disbursing such
proceeds to Seller. Liquidity Services will also collect and retain
for its own account a Buyer’s Premium from the Buyer of the Assets.
Liquidity Services shall be reimbursed for expenses incurred in
connection with the sale as mutually agreed by the parties.
-
Asset Unavailability Fee.During the term of the Agreement, if (i) Seller engages any other
service provider to sell the Assets; or (ii) Seller sells or offers to
sell any of the Assets in any manner other than on our Site or through
our Services; or (iii) Seller withdraws any Assets from sale on our
Site or through our Services; or (iv) the Assets are unavailable for
any other reason, Liquidity Services shall be entitled to (A) its
expenses incurred with respect to the Services provided with respect
to such Assets, and (ii) an amount equal to its commission and Buyer’s
Premium calculated based upon Liquidity Services’ reasonable estimate
of the sale price that would have been achieved if the Assets had been
sold through Liquidity Services (the “Asset Unavailability Fee”). Liquidity Services may, in its sole discretion, withhold the
Asset Unavailability Fee from the proceeds of sales of other Assets of
Seller or invoice Seller for such amount. Seller shall pay any such
invoice within ten (10) Business Days after receipt. Seller
acknowledges and agrees that it shall never withdraw an Asset from a
sale under this Agreement (i) where Liquidity Services has entered
into a binding sales agreement with a Buyer; or (ii) where an online
auction in relation to such Asset has commenced.
-
Term and Termination.The Managed Services Agreement shall remain in effect until
terminated by either party on written notice of termination unless a
different term or termination process is specified in the Managed
Services Agreement; provided, however, that notwithstanding any such
termination, the terms of the Managed Services Agreement shall
continue to apply to all outstanding Listings and Listing Contracts
until such Listings and Listing Contracts have been fully settled and
until the Seller has settled all outstanding amounts owed to us in
accordance with the Managed Services Agreement.
-
Seller’s Representations Concerning Assets.In order for us to act as your agent, we are required to verify
certain information regarding the Assets and you. Accordingly, Seller
hereby represents, warrants to us and covenants with us the
following:
-
Seller is authorized to execute and perform the Managed Services
Agreement, and the Managed Services Agreement constitutes the valid
and legally binding obligation of Seller enforceable in accordance
with its terms;
-
Seller holds and, up to the moment of sale provided for under this
Agreement, will hold good and marketable title to all Assets free
and clear of all liens and encumbrances;
-
Seller will maintain custody and control of the Assets until such
time as they are sold, and their removal is authorized by Liquidity
Services;
-
None of the Assets infringe or violate (or contain any parts or
components which infringe or violate) any third party’s intellectual
property or other proprietary rights;
-
For Assets located in the United States, the sale of the Assets does
not constitute a bulk sale subject to the Bulk Transfer Article of
the Uniform Commercial Code for any state in which any of the Assets
are located;
-
No Hazardous Substances are contained in or made a part of the
Assets. For purposes of this Agreement, the term “Hazardous Substances” means, either individually or collectively, any chemical, solid,
liquid, gas, or other substance that is regulated by any
governmental authority or that presents an imminent and substantial
danger to the public health or welfare or to the environment, or
otherwise requires special handling, collection, storage, treatment,
disposal, or transportation; and
-
None of the Assets or any components thereof, or related software or
technology requires a U.S. Government license for export from the
United States to countries other than those which are subject to
comprehensive embargoes or support for terrorism except those
specifically listed in writing delivered by Seller to Liquidity
Services, with the respective Export Control Classification Numbers
for such listed Assets. Further, none of the Assets or any
components thereof, or related software or technology requires a
license for export from the country wherein the Assets are located
or is otherwise subject to embargoes or sanctions restrictions of
the country wherein the Assets are located.
-
Seller is a registered User and acknowledges and agrees to the
latest version of the User Agreement currently applicable to all
Users of our Services, including, without limitation, Limitation on
Liability (Section 5 of the User Agreement) and Defense and
Indemnity (Section 6 of the User Agreement).
Appendix F - Contracting Entity, Governing Law and Jurisdiction Policy
For disputes between you and any Liquidity Services entity, the Liquidity
Services legal entity, governing law and jurisdiction will vary based on
the location of the Assets and shall be governed and construed in
accordance with the laws set out in the table below without regard to the
conflict of law principles of such jurisdiction. The United Nations
Convention on Contracts for the International Sale of Goods does not
apply. Unless otherwise indicated in a written agreement between Liquidity
Services and a User, the applicable Liquidity Services contracting entity,
notice address, governing law/venue and currency will depend on the
location of the Asset at the time of sale, and shall be as set forth in
the table below:
Location of Assets at Time of Sale |
Liquidity Services Contracting Entity |
Legal Notice Address |
Governing Law & Choice of Language For Dispute
|
Governing Venue |
Currency |
United States or any other country/region not otherwise specified in
this table
|
Liquidity Services, Inc. |
Liquidity Services, Inc. c/o Corporation Services Company 251 Little
Falls Drive Wilmington, DE 19808 United States
|
Maryland, United States English |
Montgomery County, Maryland, US |
US$ |
Canada |
LSI Liquidity Services Canada, Ltd |
c/o Gowlings Suite 2300, Bentall 5 550 Burrard Street Vancouver, BC
V6C 2B5 Canada
|
Province of Ontario English |
Province of Ontario |
CA$ |
China |
GoIndustry DoveBid (Shanghai) Co. Limited* |
Liquidity Services Room 3805, No.1 Tower, Kerry Everbright City No.
218 Tianmu Road West Shanghai, China
|
People’s Republic of China Chinese |
Shanghai International Arbitration Center |
CNY |
Hong Kong and other locations in Asia Pacific not stated (“APAC”)
|
Liquidity Services (Hong Kong) Limited |
Liquidity Services (Hong Kong) Limited Room 2, 17/F., Metropole
Square No.2 On Yiu Street Shatin, New Territories Hong Kong
|
English Law English |
Hong Kong arbitration at Hong Kong International Arbitration Centre
|
HK$ or USD$ |
Singapore |
GoIndustry DoveBid (S) Pte Ltd |
c/o CSCGFM Corporate Services (Singapore) Pte. Ltd. , 30 Raffles
Place, #23-01 Oxley @ Raffles, Singapore 048622
|
English Law English |
Hong Kong arbitration at Hong Kong International Arbitration Centre
|
SGD$ or USD$ |
Australia |
Liquidity Services Global Solutions Pty. Ltd |
Liquidity Services Global Solutions Pty. Ltd, Level 16, Tower 2,
Darling Park, 201 Sussex Street, Sydney NSW 2000
|
English Law English |
Hong Kong arbitration at Hong Kong International Arbitration Centre
|
AUD$ or USD$ |
United Kingdom and European Union |
Liquidity Services UK Ltd |
c/o Corporation Service Company (UK) Limited, 5 Churchill Place,
10th Floor, London, UK E14 5HU
|
English Law English |
London Court of International Arbitration |
GBP, Euro or USD$ |
* Except when Liquidity Services has purchased and is reselling Assets
(i.e., a “principal deal”), in which case its Liquidity Services
(Shanghai) Trading Co. Ltd. that is buying and reselling assets instead of
GoIndustry DoveBid (Shanghai) Co. Limited, which entity sells assets on a
consignment basis.
Venue for all disputes arising under or related to a Managed Services
Agreement will be in accordance with the above table unless the parties
agree otherwise in the terms of a Managed Services Agreement. Each party
irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding brought in any such court has been brought in
an inconvenient forum. Process in any such suit, action or proceeding may
be served on any party anywhere in the world, whether within or without
the jurisdiction of any such court.
Appendix G - Prohibited Assets Policy
-
Products produced, manufactured or packaged by forced prison labor or
child labor
- Pornography in any form of media
-
Alcoholic beverages, cigars, cigarettes or tobacco products except in
the case of a governmental actor authorized to resell in accordance with
applicable law
- Live animals or taxidermy
- Grave or other funeral-related items
- Charity fundraising activities
- Used cosmetics
- Credit or debit cards
-
Gift cards (except where the sale of gift cards by a governmental actor
is permitted)
-
Illegal and prescription drugs, illegal drug paraphernalia, and
materials describing how to make illegal drugs
-
Embargoed Assets from prohibited countries currently listed by the U.S.
Office of Foreign Assets Control
-
Government documents, government identifications, and government
licenses (except where the sale of a government license by a
governmental actor is permitted
- Human parts or human remains
-
Surveillance equipment (including but not limited to lock picking
devices, wiretapping devices, telephone bugging devices);
- Event tickets
- Lottery tickets
- Mailing lists and personal consumer information
- Manufacturer’s coupons
- Pesticides
-
Plants (including live plants and seeds) except in the case of a Seller
authorized to resell under applicable law
-
Firewood or lumber (except for artificial or manufactured firewood or
where sale of firewood or lumber is permitted by applicable law and any
transportation of firewood or lumber is done in a compliant manner with
the laws and regulations across which it is transported)
- Postage meters or stamps
-
Real estate (except where a seller holds a commercial real estate
license or is a government agency or authority selling under exception
from licensing due to statutory exception or sovereign immunity)
- Stocks and other securities
- Travel services
-
Products containing ingredients that are regulated by the U.S. Drug
Enforcement Administration as a controlled substance or listed chemical
-
Textile fiber, fur or wool products misbranded or falsely or deceptively
labelled or advertised under the Textile Fiber Products Identification
Act, the Fur Protection Labelling Act, the Wool Products Labelling Act
and the rules and regulations promulgated under such Acts
-
Illegal products, illegal services, counterfeit, stolen or recalled
products
-
Firearms and ammunition except for Transactions in compliance with
Appendix I
Firearms and Live Ammunition Policy
Appendix H - Anti-Bribery and Anti-Corruption Policy
Integrity is a core value of Liquidity Services and, accordingly, we are
transparent in the way we conduct business and adhere to the highest
ethical standards. The Company takes bribery and corruption very seriously
and is committed to acting professionally, fairly and with integrity in
all our business dealings and relationships.
Honest dealing with customers and suppliers is essential to sound business
relationships. Giving or receiving any kickbacks, bribes, or similar
payments of any sort is prohibited. Sellers, Buyers and their agents are
required to demonstrate these same high ethical standards and to conduct
all business transactions with integrity and fairness. Users and their
agents may not act in any way, in their business relationship with
Liquidity Services or otherwise, that violates the U.S. Foreign Corrupt
Practices Act, the U.K. Bribery Act, or any other anti-bribery or
anti-corruption law applicable to the User and Transactions in which the
User is involved. Users must only use suppliers that do not violate
ethical standards through bribes, kickbacks, or other similar improper or
unlawful payments. Giving or promising to give anything of value to induce
an official to affect any governmental act or decision, or to assist
Liquidity Services in obtaining or retaining business or securing any
improper advantage, is strictly prohibited. If any Liquidity Services
employee, or any other person, requests such a payment, a User is required
to report such a request to the Liquidity Services Compliance and Ethics
Hotline
Compliance and Ethics Hotline, anonymous reporting (where allowed by law)
- call toll-free in the US:
888-475-8376 - outside the US: dial the
AT&T access line for your country and then dial:
855-300-3054 U.S. Hotline:
https://liquidityservicesinc.alertline.com
EU Hotline:
https://liquidityservicesinceu.alertline.com.
Appendix I - Firearms and Live Ammunition Policy
Liquidity Services permits Users who are government agencies to sell
firearms and live ammunition on the Site, provided they comply with all
applicable federal, state and local laws and regulations, and this Policy.
No non-governmental User is permitted to sell firearms or live ammunition
on the Site.
Sellers and Buyers of firearms and live ammunition on the Site are
responsible and liable for compliance with all applicable laws and
regulations.
Seller Requirements:
In addition to all applicable laws and regulations, government agencies
must comply with the following requirements to sell firearms and live
ammunition on the Site:
Requirements for Sellers, who do not have an Employee or Contractor with
an Active Federal Firearms License (“FFL”):
-
All items must be listed in the restricted category named “Firearms and
Live Ammunition”, which restricts participation to Buyers with an active
FFL.
-
Seller must verify the identity of Buyer prior to conveying firearms
or live ammunition to Buyer. The following forms of identification are
required:
-
A valid and current government-issued identification with picture
(“ID”); and
- A valid and current FFL matching the ID.
-
The holder of the FFL must take possession and sign the bill of sale
associated with the Transaction in person, no exceptions.
Requirements for Sellers, who have an Employee or Contractor with an
Active FFL:
-
Seller must submit a copy of the holder’s FFL and ID to us. We will not
accept an expired FFL or ID.
-
Seller must ensure we have the most current FFL on record. The Liquidity
Services Client Service Representative (“CSR”) for the account will perform semi-annual reviews to ensure the FFL
on file is current. If there is an expired FFL or ID on file with us, no
transactions will be permitted until a current FFL or ID is provided.
-
Seller is responsible and liable for performing all legally required
background checks and paperwork pertaining to Buyer.
-
Seller must keep a signed copy of the bill of sale in accordance with
applicable federal and state laws and regulations.
Buyer Requirements:
Besides all applicable laws and regulations, Buyers wishing to participate
in auctions in the restricted category of “Firearms and Live Ammunition”
on the Site must comply with the following requirements:
-
Buyer must submit a copy of their valid and current FFL and ID to us.
All information on the FFL, ID and Buyer’s registration must match. If
it does not, Buyer will not be permitted to purchase firearms or live
ammunition through the Site or our Services.
-
Buyer must pick up all Assets won in the restricted category of
“Firearms and Live Ammunition” in person.
-
Buyer must present their valid and current FFL and ID on removal of the
Asset.
Violation of the requirements set forth herein may cause cancellation of
the Transaction and/or suspension or termination of the applicable User’s
account on the Site.