TERMS AND CONDITIONS
THIS BUYER AGREEMENT (hereinafter “Agreement”) is made on the day this Agreement was confirmed online between Marketplace Liquidation, its affiliates, assigns and successors as the case may be (hereinafter referred to collectively as “MPL”) located at 5211 Lakeland Avenue North, Crystal, MN 55429; and the registrant completing the online Agreement (hereinafter “BUYER”) with principal place of business located at the address submitted in the online registration, and for the consideration set forth below, including the opportunity to purchase merchandise from MPL (“PRODUCT”), and intending to be legally bound, MPL and BUYER hereby agree as follows:
1. This Agreement applies to all transactions between MPL and BUYER. From time to time, MPL may modify or amend this Agreement in its sole discretion. If MPL modifies or amends such agreement, MPL shall provide notice to BUYER at BUYER’s email address. Entering into any transaction shall indicate the BUYER’s acknowledgment of the terms and conditions existing at the time of the transaction and BUYER’s agreement to such terms and conditions. IT IS THE RESPONSIBILITY OF THE BUYER TO REVIEW THE TERMS AND CONDITIONS FROM TIME TO TIME SO THAT THE BUYER IS AWARE OF CHANGES, IF ANY, THAT HAVE BEEN MADE.
2. “Supplier” shall include any company for which MPL distributes.
3. THE SERVICES, GOODS AND THE WEBSITE, INCLUDING ALL PROPERTY LISTED FOR SALE, CONTENT, FUNCTIONS, MATERIALS, SERVICES AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES OR THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE” BASIS “WITH ALL FAULTS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER AGREES THAT THERE ARE NO WRITTEN WARRANTIES OR ANY WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS DOCUMENT. MPL and the Supplier undertake no responsibility for the quality of the goods and assume no responsibility that the goods will be fit for the purpose for which you are buying these goods. BUYER acknowledges that no representations have been made by the Supplier or MPL, or relied upon BUYER, in connection with the quality, quantity, or capacity of the merchandise. BUYER acknowledges and understands that a purchase of PRODUCT constitutes the wholesale purchase of clearance merchandise and that some or all of the PRODUCT may not be in usable condition. The BUYER further understands that the merchandise may vary from the general description and that the general description is for convenience only. BUYER agrees that the general description is NOT a representation or acknowledgment of the actual goods.
4. MPL will hereby sell, assign, and transfer to the BUYER the PRODUCT as described in each executed Notification of Sale Memo, which shall be deemed incorporated herein. MPL warrants good title and ownership of the PRODUCT listed on the Notification of Sale Memo.
5. BUYER shall pay MPL by wire transfer or payment method otherwise available on MarketplaceLiquidation.com.
6. BUYER shall be solely responsible for and shall pay the costs of any and all transportation of PRODUCT regardless of whether transportation is required for purchase or return. This includes any and all shipping and special handling costs whether foreseen or unforeseen. BUYER acknowledges and agrees to transport all PRODUCT at its OWN RISK and that MPL is not liable for any damage occurring in transportation.
7. The BUYER hereby certifies that NO purchase or dealings between the parties are for BUYER’s personal, family or household use or purpose. Any bid submitted by BUYER is exclusively in BUYER’s commercial business use and resale and is not subject to the collection of sales tax as part of BUYER’s purchase of inventory for its/his/her business.
8. BUYER shall be responsible for all taxes, tariffs, duties and applicable expenses based on any sales transactions occurring under this Agreement. Sales taxes shall be added to the purchase price unless a copy of the purchaser’s sales tax exemption is provided to MPL.
9. Title and risk of loss to any PRODUCT pass to the BUYER upon MPL’s tender of PRODUCT to BUYER or its chose carrier at MPL’s warehouse.
10. In Some Instances, PRODUCT may not be offered for resale by BUYER within a 50-mile radius of Supplier’s retail locations (within and outside of North America), through catalogs or on the internet, or in violation of paragraphs 10, 11, or 12. This restriction will be made known by a notation of "Location Restrictions Apply" on the product's page. BUYER agrees to comply with such resale restrictions and shall be responsible to ensure that any secondary purchasers comply with those restrictions. As further provided herein, BUYER agrees to indemnify and hold harmless MPL for any penalties and fees incurred as a result of BUYER’s unauthorized resale.
11. BUYER agrees to remove and obliterate (a) any and all references to MPL, the Supplier, or the Supplier’s private brand names including without limitation, tags, interior or exterior labels, size strips, barcodes, pocket flashers and warranty cards from the PRODUCT; (b) any and all references to MPL, the Supplier or the Supplier’s private brand names from any consumer packaging associated with the PRODUCT, and (c) to deface, detag and delabel any references to MPL, the Supplier, or the Supplier’s private brands that are permanently embedded, scribed or painted on any item contained in the PRODUCT in a manner that renders them unreadable. MPL shall provide BUYER with a list of the Supplier’s Private brands for each salvage transaction.
12. BUYER shall not advertise the PRODUCT using the name of the Supplier or its private brand names or include the same within the BUYER store(s)/internet/newspaper/magazine or any source of media. BUYER shall not use any symbol or abbreviation when advertising that would represent the Supplier, or the Supplier’s private brand names. Nothing in this agreement shall be construed to grant any right or license to BUYER, BUYER shall not inform its customers that any PRODUCT may be returned to a retail store of the Supplier.
13. BUYER agrees that no publications of the Supplier or other materials referencing the Supplier or any of its affiliated or related companies will be made available in any manner to BUYER’s customers.
14. BUYER may sell PRODUCT to unrelated third-party entities provided (a) BUYER has complied with the obligations of this Agreement including the obligations set forth in paragraphs 9, 10, 11 and 12; (b) such third party has signed a written agreement with BUYER wherein such third party has agreed to be bound by the terms and obligations at least as strict as those set forth in this Agreement, and with the indemnity obligations and disclaimers insuring to the benefit of MPL, its Suppliers and any entity from whom the Supplier acquired the PRODUCT. BUYER shall provide a copy of any such agreement to MPL prior to selling any PRODUCT to said third party. BUYER shall warrant and ensure that all subsequent purchasers of PRODUCT through BUYER will not sell PRODUCT for resale in violation of this Agreement.
15. Buyer agrees that MPL or its representatives may periodically inspect any of BUYER’s business locations to verify BUYER’s compliance with this agreement.
16. BUYER acknowledges and agrees that MPL is making a domestic sale to BUYER. As such, BUYER certifies that it has a registered business address in the United States of America. Buyer, not MPL, shall be listed as the exporter of record on the United States Principal Party in Interest (“USPPI”) if PRODUCT is exported, and BUYER further agrees that it is solely responsible for compliance with all US export regulations, including but not limited to, US Export Administration Regulations, US Treasury Regulations and US Department of Defense Regulations, as applicable, and shall be responsible for and indemnify MPL for any such fines, penalties or costs associated with BUYER’s non-compliance with export regulations for which MPL becomes liable. BUYER shall provide MPL with copies of customs declarations, ports of departure and ports of arrival information on request.
17. If any PRODUCT purchased by BUYER, including but not limited to, computers, cameras, mobile devices, e-readers, and tablet computers contains or may contain, electronically stored Customer Personal Information as defined below (“CPI”), BUYER agrees, prior to the BUYER’s resale of the Product or any of its components, (a) to access such CPI solely for the purpose of permanently erasing all CPI or (b) in the event the BUYER is unable to electronically access and erase CPI, to physically destroy the functionality of the memory storage components of the Product so as to render the CPI permanently irretrievable. BUYER shall keep all CPI confidential and shall not use it for any purpose, and shall indemnify, defend and hold MPL and its affiliates harmless against any liability for BUYER’s or its purchaser’s failure to comply with this provision. “Customer Personal Information” or “CPI” shall mean any information that may have been created by a former user of a device. This information may include customer name, username, password, PIN, address information, configuration information, images or other user stored information resulting in a change from the original manufacturer’s configuration of the device.
18. BUYER agrees to indemnify, defend and hold the Supplier and MPL (including their successors, assigns, affiliates, parents, subsidiaries and divisions, and each of their respective present and future officers, directors, employees, agents and/or independent contractors) harmless against and from any and all claims, demands, damages, actions, suits or proceedings (civil, criminal, administrative, or investigative), settlements, costs, losses and expenses (including, without limitation, reasonable attorneys’ fees and costs), penalties, fines, judgements and liabilities or other relief sought of any kind and nature whatsoever, arising from: (a) any sale or resale of the PRODUCT; (b) any misrepresentation or breach of this Agreement; (c) any actual or alleged act of commission or omission by the BUYER and/or BUYER’s successors, assigns, affiliates, parents subsidiaries and/or divisions, and/or any of their respective affiliates successors, assigns, officers, directors, employees, agents, and independent contractors; (d) any violation of the sale restrictions set forth in paragraphs 8, 9, 10, 11 and 12; (e) any claim of copyright, trademark, and contributory copyright or trademark infringement in any way, related to the PRODUCT or the sale restrictions set forth in paragraphs 8, 9, 10, 11, and 12.
19. BUYER acknowledges that Supplier/MPL is not required to sell merchandise to BUYER and BUYER is not required to purchase PRODUCT from Supplier/MPL. MPL makes no representations concerning the future availability of a PRODUCT.
20. Dispute Resolution Process: This paragraph provides the exclusive means of redress for any disputes arising under this Agreement or any transaction covered by this Agreement. BUYER’s with a claim that PRODUCT purchased does not conform to the Notification of Sale or was materially misrepresented must contact their MPL sales representative within ten (10) business days of the payment date to attempt to resolve the dispute. MPL will respond to the dispute within five (5) business days thereafter. All claims must contain a sufficiently detailed description of BUYER’s dispute (which should include manifests, photos, and other documentation). Failure to submit a sufficiently detailed description of the dispute may result in a denied claim. MPL shall determine in its sole discretion whether a claim is sufficiently detailed. Because PRODUCT is sold “AS-IS, WHERE IS” as set forth in paragraph 3, MPL is under no obligation to take any action on a complaint. If MPL cannot resolve the dispute with a BUYER within fifteen (15) business days of the receipt of the Dispute then BUYER may elect to resolve the dispute through binding arbitration by filing a complaint with the American Arbitration Association (“AAA”) within thirty (30) days after the dispute resolution procedure has been exhausted. BUYER ACKNOWLEDGES AND HEREBY WAIVES any right to bring a dispute under this Agreement in a court of competent jurisdiction. MPL shall not be liable to BUYER for any damages if BUYER has not exhausted the dispute resolution procedures set forth in this paragraph. Each party shall submit to the jurisdiction of the AAA and shall bear its own cost of arbitration in the event of any dispute arising under this Agreement. The parties agree to arbitrate in Minneapolis, Minnesota in accordance with the procedures and rules of the AAA. Any award rendered in the arbitration proceedings shall be binding and final upon the parties and may be entered as a judgment in any court of competent jurisdiction.
21. BUYER agrees to submit to the jurisdiction of any competent state or federal court encompassing Hennepin County, Minnesota against BUYER seeking injunctive relief for violations of paragraphs 9, 10, 11, or 12, or for the purpose of compelling arbitration consistent with this Agreement. BUYER agrees to pay reasonable attorney’s fees, costs and expenses that MPL incurs to enforce the terms of this Agreement.
22. BUYER’s that attempt to rescind a credit card transaction (i.e. chargeback) without MPL’s express written consent shall have their account immediately suspended and/or permanently deactivated. If BUYER performs a chargeback after receiving PRODUCT purchased, MPL may take any and all action to preserve its rights, including, without limitation, initiating criminal proceedings.
23. Neither BUYER nor its agents shall offer, among other things, monetary compensation, gratitudes, gifts, premiums, etc., to any MPL employee and/or employee of the Supplier regardless of the monetary value, or solicit any MPL employee to falsify any record, receipt, invoice or the like. BUYER agrees not to sell any PRODUCT to an employee of MPL. Such actions shall be deemed a material breach of this Agreement.
24. BUYER or its agents shall notify MPL by email at email@example.com if he/she/it is solicited by an MPL employee.
25. Limitation of Liability. MPL shall not be liable to BUYER or BUYER’s customers for direct, indirect, incidental, punitive, special or consequential damages or losses of any kind whatsoever, including but not limited to, transportation costs, loss of profit or anticipated profit, loss of business, business opportunity, goodwill, or loss of production caused by any delay, failure of delivery, or failure of PRODUCT to conform to specifications. BUYER specifically understands and agrees that MPL shall not be liable in tort, whether based on negligence, strict liability, or any other theory of tort liability, for any action or failure to act with respect to the sale or delivery of the PRODUCT. In the event of a failure to deliver or the non-conformance of PRODUCT, and such failure or non-conformance is due to the fault of MPL, liability of MPL shall not exceed an amount equivalent to the sales price of PRODUCT for the particular transaction at issue. IN NO EVENT, SHALL MPL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE PRODUCT OR (B) DEFECTS IN OR (C) MISUSE OF SUCH PRODUCT UNDER ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN ADDITION, IN NO EVENT SHALL MPL BE LIABLE FOR ANY SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE SITE OR ITS CONTENT, OR THE PURCHASE OF PRODUCT.
26. MPL’s intellectual property (“intellectual property”) includes, but is not limited to, all inventions, know-how, buyer and seller lists, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or our employee(s) alone or jointly with you or other BUYERs from the use and development of MPL’s services or as a result of your feedback regarding the services. All rights, title, and interest in any Intellectual Property developed during your use of MPL’s services shall belong to MPL and shall be subject to the conditions of this BUYER Agreement. You hereby irrevocably assign to MPL all rights, title, and interest you may acquire in any of MPL’s intellectual property. MPL may file an application for intellectual property protection for its intellectual property. If any of our Intellectual Property is created with your participation, you agree to cooperate with us to ensure that such application(s) will cover all related assets including all features of commercial interest and importance. MPL’s Intellectual Property is the sole and exclusive property of MPL, and its subsidiaries and affiliates unless otherwise stated and may not be used without prior written consent.
27. MPL shall not be liable for any delay in or the impairment of performance resulting in whole or in part Acts of God, labor disruptions, shortages, inability to produce product, supplies of raw materials, weather conditions, war or any other circumstances or causes beyond the control of MPL in the conduct of its business.
28. BUYER acknowledges that a breach of paragraphs 9, 10, 11, 12, 13, and 16 of this Agreement constitutes a material breach of this Agreement for which MPL shall have the right to institute legal action pursuant to paragraph 21.
29. BUYER agrees to not communicate with MPL’s clients, affiliates, suppliers, contractors or business associates concerning PRODUCT without the express written consent of MPL.
30. BUYER acknowledges and understands that the transactions covered under this agreement are commercial transactions. BUYER agrees to waive the protections of any applicable consumer protection law to the extent permitted by law.
31. As a condition of purchasing PRODUCT pursuant to this Agreement, BUYER shall provide to MPL a valid business license or seller’s permit, a tax certificate/ID number, and sales tax and use documentation.
32. MPL may terminate this Agreement at any time and for any reason. The requirements of paragraphs 10, 11, 12, 13, 17, 19, 20, 21, 23, 24, and 26 shall survive the termination of this agreement.
33. This Agreement has been entered into in the Commonwealth of Minnesota and any matter whatsoever which arises out of or is connected in any way with the Agreement shall be governed by and construed and enforced exclusively in accordance with the statutory or common laws of Minnesota without consideration of conflict law principals. The rights and obligations of the parties shall not be governed by the United Nations Convention on Contracts for the Sale of Goods.
34. The parties agree that this Agreement, the transactions pursuant to this Agreement and the relationship between MPL and BUYER shall be deemed arms-length. There shall exist no implied or otherwise unstated covenants, rights or obligations by, of or against either party. The parties expressly disclaim the existence of any implied covenant of good faith or fair dealing.
35. This Agreement constitutes the entire Agreement between the parties hereto and the parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations including the exclusion and delivery hereof except as specifically set forth herein and that each party has relied on his/her/its own judgment in entering into this Agreement and that each party has had ample opportunity to have this Agreement reviewed by counsel. This Agreement supersedes all previous letters, understanding, written agreements or verbal agreements between the Parties that relate to the purchase of PRODUCT.