AMAZON LIQUIDATION AUCTIONS MERCHANDISE TERMS OF PURCHASE
This Agreement (the "Agreement") sets out the terms and conditions upon which You purchase Liquidation Merchandise (as defined below) from Amazon EU Société à responsabilité limitée (Sarl), located at 5 Rue Plaetis, L — 2338 Luxembourg (Lux reg. n° B 101818, Share capital: EUR 37500, Trading authorisation n° 104408) ("Amazon") or any Amazon Entity. For purposes of this Agreement, "Amazon Entity" means Amazon or any entity that directly or indirectly controls, is controlled by or is under common control with Amazon. This Agreement applies to any Liquidation Merchandise that You purchase or make an offer to purchase via any channel, including but not limited to any channel created, owned or operated by B-Stock Solutions, Inc. (“B-Stock”). In this Agreement “You” and “Your” refer to the person purchasing or making an offer to purchase any such Liquidation Merchandise from any Amazon Entity.
- Liquidation Merchandise.
- Sale of Liquidation Merchandise. Pursuant to the terms and conditions hereof, Amazon and/or other Amazon Entities agree to sell to You, and You agree to purchase from Amazon and/or other Amazon Entities, certain units and/or categories of Liquidation Merchandise, that may include new condition merchandise, customer returns, unsellable or other merchandise, may be in varying physical condition, and that may include breached, damaged or other products (the "Liquidation Merchandise"). You may only resell Liquidation Merchandise where legally permitted and in compliance with all laws. For the avoidance of doubt, this Agreement and the relationship of the parties pursuant hereto is non-exclusive. Save as expressly set out herein, the parties acknowledge and agree that there is no guarantee of quantity, kind or amount of Liquidation Merchandise to be provided under this Agreement. You have no return rights of any kind with respect to Liquidation Merchandise, or any right to reject Liquidation Merchandise or refuse delivery thereof. In this respect, all sales are final. Title and risk of loss will transfer in accordance with Section 5.
- Sale Process. Liquidation Merchandise will be sold pursuant to the auction process set forth in this Section 1 (the "Auction"). If You wish to bid on Liquidation Merchandise, You will be required to enter Your bid amount. By entering a bid for any Liquidation Merchandise (whether on any B-Stock platform or otherwise) You confirm that You accept all the terms of this Agreement and warrant that You have all due permissions, consents and authorities to do so and to bind any corporate entity on whose behalf such bid is entered. In order for Your bid to be eligible for the Auction, Your bid must be (i) in an amount higher than both the amounts listed as the "opening bid" and the "current bid," as applicable, (ii) in the bid increments set forth on the bid page and (iii) placed before the scheduled end time for such Auction (including any additional time added by way of extension). If Your bid is deemed the winning bid, You will receive a notification in such manner as determined by Amazon or B-Stock from time to time. It is Your responsibility to determine if You are the winning bidder for any Auction in which You participated. Amazon is not responsible for the failure of any notification to reach a winning bidder for any reason, including, without limitation, technical problems or other system error. If Your bid wins an Auction, You agree to purchase all Liquidation Merchandise offered in such Auction for the price You have offered in such bid.
- Shipping and Delivery. Inventory available on the site will fall under one of three shipping types: Shipping Included, Buyer Arranged Shipping, and Buyer Pickup Shipping.
The shipping type applying to each auction will be displayed on the auction detail page and in the description section of each auction.
For Shipping Included auctions, the cost for delivery of the inventory will be displayed on the page. Some addresses may require that the buyer contact email@example.com for a shipping quote. The shipping cost will be included with the final bid amount in the total amount due. Amazon will then ship the inventory using the carrier of their choice.
Buyer Arranges Shipping auctions the buyer will be contacted after payment is made, and the buyer will arrange pickup of the inventory within the prescribed time period. The buyer is responsible for all shipping costs directly with their carrier of choice.
Items may be shipped in multiple deliveries, and can arrive packaged both in parcels and pallets with different carriers. The complete shipment may take four (4) to six (6) weeks to arrive in full, and in exceptional circumstances longer. Neither Amazon nor its designated carrier(s) will have any liability for any shipments delayed past this date. Subject to clause 2.3 below, You must accept delivery of all shipments in the condition provided You must also ensure that the delivery address is available for receiving the goods WITHOUT delivery restrictions such as need for scheduled/ pre-informed delivery. Amazon Liquidation Auctions cannot hold shipment for holidays.
NO CHANGES IN SHIPPING ADDRESS will be accepted once payment has been received. Violation of this policy can result in removal from the market place.
- Third party IPR. You agree not to disassemble, modify, reverse engineer, decompile or do anything that would violate any licensing restrictions or other third party intellectual property rights in any Liquidation Merchandise.
- Removal of Amazon references. Under no circumstances will You advertise any Liquidation Merchandise for sale listing any Amazon Entity as the seller or previous owner or in any other context. All sales activities undertaken by You for sale or other disposition of the Liquidation Merchandise must be on Your own behalf and may not refer to Amazon or any other Amazon Entity in any way. You must remove any remaining tags, markings, labels, or packaging bearing any Amazon identifiable marks, logos or other information, and any other documents or information (such as packing slips or address labels) that contain customer data or any other Amazon information. You agree agree that You are the seller of record for all sales of Liquidation Merchandise by You, including any sales by You made through an Amazon third-party selling service. If You sell any Liquidation Merchandise to any third party reseller, You will ensure that such third party reseller will only resell the Liquidation Merchandise clearly marked as used goods, even where such Liquidation Merchandise has been refurbished by You or such third party.
- Memory Data Wipe. You will erase all post-sale electronically stored information (“User Information”) from all Liquidation Merchandise, including, but not limited to, computers, cameras and mobile devices. This will be done as a secure data wipe performed to a standard acceptable to Amazon and that ensures that none of the User Information saved on the device by any user can be recovered or retrieved by any means. The data wipe standard for Hard Disk Drives will be DOD 5220.22-M. The standard for all other product lines will be specified by Amazon on a case by case basis. Amazon does not specify a data wipe standard for a product line, You will use best industry data wiping practice standards. Further:
- You will treat all User Information on any applicable Liquidation Merchandise as confidential and will not disclose it to any unauthorised persons or allow any unauthorised persons to gain access to it. Save as otherwise agreed, You accept all liability for any claims resulting from the unauthorised disclosure of User Information.
- In the event that You become aware of any User Information on any applicable Liquidation Merchandise evidencing actual or potential criminal behaviour then You will:
- take such action as You are legally obliged to, including notifying the police and/or The Serious Organised Crime Agency (or the equivalent in any other jurisdiction);
- be entitled to take legal advice accordingly; and
- subject always to any legal requirement to the contrary, notify Amazon of the same.
- Payments and disputes
- Price. The Auction price for the Liquidation Merchandise will be that determined in accordance with clause 1.2 above and will be exclusive of VAT. The final sales price inclusive of VAT will be confirmed to You by email, and payment must be made by wire transfer. If You fail to make payment as required hereunder, You forfeit any right to purchase such Liquidation Merchandise, and Amazon or B-Stock may deactivate Your account and password so You can no longer place bids. Further Amazon may, at its sole discretion, (i) contact the next highest bidder in the Auction for such Liquidation Merchandise and offer to sell such Liquidation Merchandise to such bidder at such bidder's bid price or (ii) post such Inventory Products on the B-Stock Site for sale in a new Auction.
- Payment. All amounts payable by You hereunder are due within two business days of the date on which Amazon provides You with the information to make such payment. You will not charge Amazon, and Amazon will not be liable for, any other taxes, charges, fees, costs, expenses, compensation, customs or import/export duties, levies or similar. Without limiting the foregoing, You will be responsible for all costs and expenses associated with Your performance of this Agreement and Your purchase and receipt of Liquidation Merchandise (save as expressly set out herein). You will pay all amounts due under this Agreement via electronic funds transfer to the bank account nominated by Amazon from time to time and payment will be required in cleared funds before Amazon ships any Liquidation Merchandise to You.
- Disputes. If any Auction for Liquidation Merchandise included a manifest of units included in the relevant shipment, You shall have five (5) business days from the date of receipt of the final shipment of goods from the relevant Auction to inspect the total shipment for any discrepancies and report such discrepancy in writing. Amazon shall have no liability if the shortfall is less than or equal to five (5) percent of the total manifest value of the relevant Auction. If an under-delivery has occurred such that the manifest value of the goods not delivered is more than 5% of the total manifest value, Amazon will reimburse You for any agreed under-delivery as a percentage of the amount paid by you for the relevant Liquidation Merchandise. By way of example and for illustrative purposes only, if the manifest retail value of the Liquidation Merchandise in an Auction is £1000 and the cost value for the auction was £500, but You only receive Liquidation Merchandise with a retail value of £800 (i.e. a shortfall of 20%), then Amazon will reimburse You based on the COST VALUE of the shortfall. In this case You would be reimbursed £100. Such reimbursement may be in the form of an offset against any payments You may owe or a partial refund to You (in which case You shall bear any bank or similar charges imposed in making such repayment). Following such five (5) business day inspection period, You shall no longer have the right to claim any reimbursement for any discrepancy.
Amazon has no responsibility to supply you with any particular product(s) in such circumstances or to replace any items that may have been included in the manifest.
- Taxes. You will be solely liable for all sales tax, use tax, withholding tax, duties, surcharges and any other taxes or similar levies imposed by any governmental authority (hereinafter defined as "Transaction Taxes") relating to the sale of Liquidation Merchandise by Amazon to You and for collection of all Transaction Taxes on any subsequent sale or disposition of such Liquidation Merchandise to any third party.
- Your Representations & Warranties. You represent and warrant as follows: You will (a) perform Your obligations hereunder in a professional and competent manner; (b) comply with all state and local laws, rules, regulations, orders, rulings, and ordinances, including, without limitation, any and all environmental, consumer protection, data protection and export control laws and regulations (“Laws”); (c) handle Liquidation Merchandise in accordance with all Laws and industry best practice relating to the management, treatment, recovery, recycling and disposal of waste and, if requested by Amazon, will provide all details of any such handling by You; (d) obtain and maintain all necessary licenses and permits for the performance of Your obligations hereunder, including, without limitation, the storage, removal, destruction, recycle and disposal of hazardous materials; (e) examine all topically applied products (for example, sunscreen, make-up, diaper ointment, etc.), all products meant for internal consumption (for example, food, vitamins, medications, etc.) and all products that are intended to come into contact with potentially infectious or biohazardous substances (for example, breast pumps, diabetic test kits, syringes, etc.) that Amazon supplies as Liquidation Merchandise, and will destroy and not sell or offer to sell any such Liquidation Merchandise that does not have an unbroken factory seal or has any other indication that it may have been used or opened; (f) not engage in any deceptive, misleading or unethical practices detrimental to Amazon or the public, including, without limitation, making statements regarding the Liquidation Merchandise that You cannot substantiate; (g) remove from all Liquidation Merchandise any markings, labeling or other indicia that the Liquidation Merchandise was previously stored, owned or held in inventory by Amazon; and (h) examine all Liquidation Merchandise itself and independently determine whether the Liquidation Merchandise is in sellable condition under all Laws.
- Indemnity. You will defend, indemnify, and hold harmless Amazon, each Amazon Entity, and their affiliates (and the directors, officers, employees, and agents of Amazon, each Amazon Entity, and their affiliates) (“Amazon Indemnified Parties”) from and against any and all claims, actions, losses, liabilities, damages, settlements, judgments, and costs (including, without limitation, reasonable attorneys’ fees and legal expenses) arising out of or relating to: (a) the purchase and/or use of the Liquidation Merchandise by any person or entity after the sale of the Liquidation Merchandise to You, including if arising out of any allegations of negligence by Amazon or any defect (pre-existing or otherwise) in the Liquidation Merchandise; (b) any disposal, destruction, or recycling of any Liquidation Merchandise by You; (c) any removal or remediation action under any environmental or similar Laws in connection with the Liquidation Merchandise; (d) any claim of misused data or software improperly distributed due to resale or disposal of any Liquidation Merchandise; and (e) any breach by You of the terms of this Agreement (collectively, “Claims”). You will use counsel reasonably satisfactory to Amazon to defend each Claim. Amazon may, at its own expense, participate in the defense of any Claim with counsel of its own choosing. You will not, without Amazon’s prior written consent (which may be given or withheld at Amazon’s sole discretion), enter into or acquiesce to any settlement which contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Amazon Indemnified Party or which would otherwise adversely affect any Amazon Indemnified Party or Parties. Your duty to defend is independent of Your duty to indemnify. Your obligations under this Section are independent of any of Your other obligations under this Agreement.
- Title and Risk.
- Unless otherwise agreed between the parties in writing, risk in Liquidation Merchandise shall pass to You on delivery.
- Title to any Liquidation Merchandise shall remain with, and shall not pass from, Amazon until the time at which Amazon has received payment in full (in cash or cleared funds) for that Liquidation Merchandise, in which case title to the relevant Liquidation Merchandise shall pass to You at such time.
- Use of information
- Confidentiality/Publicity. You and Your representatives will (a) protect and keep confidential the existence of this Agreement, its terms and conditions, the existence and nature of Your business relationship with Amazon and this Agreement, including without limitation the fact that Amazon provides You with any Liquidation Merchandise, and any other information obtained from Amazon under or in connection with this Agreement or related to the services provided by You hereunder that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to Amazon’s pricing, quantity and incentive terms, technology, customers, business plans, marketing activities and finances), (b) use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling Your obligations under this Agreement. All such information will remain Amazon’s exclusive property, and You will have no rights to use such information except as expressly provided herein. You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Amazon or any of its affiliates in any manner without prior written authorisation of such use by Amazon. You will not issue press releases or publicity relating to Amazon or this Agreement or reference Amazon or its affiliates in any brochures, advertisements, client lists or other promotional materials.
- Use of Amazon Proprietary Rights. You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Amazon or any Amazon entity in any manner (including, without limitation, reference to You as a client, customer or supplier of Amazon in any press release, advertisement or other promotional material) without prior written authorisation of such use by Amazon.
- “AS IS” Sale, Disclaimer. Amazon will have good and merchantable title to the Liquidation Merchandise immediately prior to its sale to You, although it may not have any documentation evidencing such title. Other than the foregoing, however, AMAZON CONVEYS ALL LIQUIDATION MERCHANDISE TO YOU “AS IS, WHERE IS” WITH ALL FAULTS AND DEFECTS AND AMAZON DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE LIQUIDATION MERCHANDISE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. ALL SALES ARE FINAL AND AMAZON IS NOT LIABLE FOR ANY CLAIM, LOSS, DAMAGE, LIABILITY OR EXPENSE OF ANY KIND CAUSED DIRECTLY OR INDIRECTLY BY ANY LIQUIDATION MERCHANDISE. DESCRIPTIONS PROVIDED BY AMAZON CONCERNING THE CONDITION OF LIQUIDATION MERCHANDISE AND/OR ANY DAMAGE THERETO ARE NON-BINDING AND AMAZON DOES NOT WARRANT THAT ANY SUCH DESCRIPTIONS ARE CORRECT. ACCORDINGLY, YOU WILL NOT RELY ON SUCH DESCRIPTIONS AND YOU WILL BE SOLELY LIABLE TO ITS CUSTOMERS IN RESPECT OF ALL CLAIMS WHERE ANY SUCH CUSTOMER ASSERTS ANY RIGHT OR CLAIM IN RELATION TO ANY INCORRECT DESCRIPTION. Amazon’s maximum liability, and Your exclusive remedy, relating to the Liquidation Merchandise will be limited to the amount paid by You for the Liquidation Merchandise in question.
- Assignment. You will not assign any part or all of this Agreement, or subcontract or delegate any of Your rights under this Agreement, without Amazon’s prior written consent. Amazon may assign this Agreement (or any of its rights and/or obligations under this Agreement): (a) to any other Amazon Entity; or (b) in connection with any merger, consolidation, reorganisation, sale of all or substantially all of its assets or any similar transaction.
- Notices. Notices under this Agreement are sufficient if given by nationally recognised overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery to the other party at the address below:
If to Amazon: Amazon EU Sarl, 5 Rue Plaetis, L-2338, Luxembourg, Attn: Legal Department
If to You: The correspondence address notified by You to B-Stock.
Notice is effective: (a) when delivered personally, (b) 3 business days after sent by certified mail, (c) on the business day after sent by a nationally recognised courier service, or (d) on the business day after sent by facsimile with electronic confirmation to the sender. A party may change its notice address by giving notice in accordance with this Section 9.2.
- Severability. If any provision of this Agreement is determined to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
- No Waiver. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right under this Agreement. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
- Cumulative Rights. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at Law or in equity.
- Construction. The Section headings of this Agreement are for convenience only and have no interpretive value. This Agreement may be executed in counterparts, which together will constitute one and the same agreement. Facsimile versions of such executed counterparts will be as effective for all purposes hereunder as the originally executed versions thereof.
- Survival. The following provisions (together with any other provisions that by their terms or nature are intended to survive termination or expiration of this Agreement) survive termination or expiration of this Agreement: Indemnity (Section 4); Title and Risk (Section 5); Confidentiality/Publicity (Section 6); Use of Amazon Proprietary Rights (Section 7); and General (Section 9).
- Injunctive Relief. You acknowledge that any material breach of this Agreement by You would cause Amazon irreparable harm for which Amazon has no adequate remedies at Law. Accordingly, Amazon is entitled to specific performance of this Agreement or injunctive relief for any such breach. You waive all claims for damages by reason of the wrongful issuance of an injunction and acknowledges that Your only remedy in that case is the dissolution of that injunction.
- Costs and Legal Fees. In the event of any legal proceeding between the parties arising from this Agreement, the substantially prevailing party may recover from the other party all of its reasonable costs and expenses, including without limitation attorneys' fees and court costs.
- Limitations on and Exclusions of Liability. AMAZON IS NOT LIABLE UNDER ANY CIRCUMSTANCES FOR LOST OPPORTUNITIES OR PROFITS, OR FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND (ALL OF WHICH TERMS INCLUDE, WITHOUT LIMITATION, PURE ECONOMIC LOSS, LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND SIMILAR LOSS).
- Entire Agreement. This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter of this Agreement and supersedes the parties’ prior agreements, understandings and discussions relating to this Agreement. No modification of this Agreement is binding unless it is in writing and signed by Amazon and You.
- Governing Law; Jurisdiction and Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Grand-Duchy of Luxembourg without reference to the rules governing choice of laws. Each Party hereby irrevocably submits to the non-exclusive jurisdiction and venue of the Courts of the judicial District of Luxembourg City, with respect to any claim, action or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby, and hereby agrees not to commence or prosecute any such claim, action or proceeding other than in the aforementioned courts. The parties' rights and obligations are not governed by the United Nations Convention on Contracts for the International Sale of Goods.