Terms of Service and User Agreement
Direction Liquidation, LLP, with offices at 20200 W Dixie Highway Suite 1005, Aventura, Florida 33180 (“Company” or “DL,” a first “Party”), operates directliquidation.com (the “Site”), an online private marketplace (“Private Marketplace” or “PM”), whereby it provides services (the “PM Services,” “Services” or “DL’s Services,” which comprise the Site) for the sale of merchandise and inventory, for example, liquidation or salvage goods, items, products, returns, surplus, units, pallets, skids and lots. Diverse entities, including individuals, sole proprietors, partnerships, businesses and corporations, desire to list and sell merchandise (“Merchandise”) and inventory (“Inventory”) through the PM. Registered Buyers (“Buyers”) and Sellers (“Sellers”) (collectively, “Users,” other “Parties”) have access to the Services subject to the terms and conditions set forth herein (the “Agreement”). The Services comprise, but are not limited to, the DL website, online services, account management services and customer support (collectively, “Site and Services”).
REGISTERING FOR DL’s SERVICES IMPLIES ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. REGISTRATION IS NECESSARY FOR ACCESS TO DL’S SERVICES.
1.1. ‘ASA’ means “an Asset sales agreement (“ASA”) for Asset liquidation goods received into a DL facility.”
1.2. ‘Asset’ has the same meaning as Item.
1.3. ‘Best Offer’ means “a transaction in which Buyer purchases an Item for less than the list price.”
1.4. ‘Buy Now’ means “a transaction in which Buyer purchases an Item for the list price.”
1.5. ‘Circumventing Transaction’ means “a transaction in which a first User negotiates, communicates, or transmits any information of any kind with a second User in an attempt to complete the sale of Merchandise or Inventory by any means other than DL’s online liquidation auction.”
1.6. ‘Claims’ means “claims, losses, liabilities, costs and expenses, including reasonable attorneys’ fees.”
1.7. ‘Company’s Marks’ means “DL’s trademarks, tradenames, domain names, tag lines, logos, service marks and other branding elements used in the performance of this Agreement and the implementation of the Services.”
1.8. ‘Confidential Information’ means “any confidential or proprietary information of DL or of User which is identified as such or should reasonably be understood as such.”
1.9. ‘Deal’ means “a close of an auction, an execution of a Buy Now transaction, or Seller’s acceptance of Buyer’s Best Offer,” depending on the type of transaction.
1.10. ‘Demanufacture’ means ‘(i) to remove from an Asset, in accordance with all applicable specifications, any and all references to the manufacturer and/or retailer, including but not limited to retailer name/s, logo/s, universal product code number/s, return authorization number/s, and any other identifying marks, including without limitation tags, interior or exterior labels, size strips, bar codes and pocket flashers, (ii) to mark an Asset clearly and conspicuously so as to make it readily apparent that it has been through a salvage process, (iii) to deface, detag or delabel an Asset in such a manner as to render unreadable any permanently embedded, scribed or painted-on label, (iv) to use a permanent marker, sticker or other means to inscribe a mark through, or cover over, the original barcode of an Asset and thus render the barcode unreadable.”
1.11. ‘DL’s Technologies’ means “the Site, the network of online marketplaces of the Site, and all technology, inventions, ideas, improvements, discoveries, methods, processes, concepts, designs, prototypes, samples, drawings, blueprints, specifications, computer programs, methods of doing business, know-how, expertise, trade secrets, software, copyrights and copyright applications, patents and patent applications, trademarks and trademark applications, tag lines, logos, trade names, other branding elements related to this Agreement, any software and/or other works conceived of and/or reduced to practice or writing or otherwise related to the Site or Services, for instance, applications for mobile devices, and any other form of intellectual property (“IP”) developed by or for DL and/or its third-party service providers.”
1.12. ‘DL’s Services’ means, among other things, “an online platform for sales of a wide variety of items, due diligence and fraud prevention, Seller/Buyer communication tools, payment collection, integrated shipping, warehousing and logistics management, account management tools, dedicated account personnel, marketing, inspection, and other services.”
1.13. ‘Effective Date’ means “the day on which the Agreement commences.”
1.14. ‘Gross Merchandise Value (“GMV”)’ means “the actual sale price (the winning bid or purchase price) at which the Merchandise is sold, excluding the amount paid for shipping or related services, sales tax and other transaction charges.”
1.15. ‘Item’ means “an irreducible salable component of Merchandise or Inventory.”
1.16. ‘Login Credentials’ means “a validated set of a username and a password.”
1.17. ‘No Bid Auctions’ means “auctions that do not receive a bid.”
1.18. ‘Shill Bidding’ means “bidding on Seller’s own auction, either directly or indirectly, in an effort to raise the price at which Seller’s auction item will eventually sell, including but not be limited to knowingly directing or allowing a third party to perform the artificial bidding against other, legitimate bidders in an auction.”
1.19. ‘Termination Date’ means “the day on which the Agreement terminates.”
1.20. ‘User Information’ means “all information submitted by a User in connection with the use by the User of the Private Marketplace Services.”
1.21. ‘User’ means “any user of the PM Services.”
2. COMPANY OBJECTIVE AND SERVICES
DL provides Sellers with an efficient and reliable end-to-end solution for converting surplus merchandise or inventory into cash and qualified Buyers with a venue to source goods on a global scale at competitive prices.
DL develops, hosts, implements, operates, manages and supports proprietary technologies (DL’s Technologies) and integrated services (DL’s Services) to enable, facilitate and track the liquidation of physical assets and ensure the completion of the respective transactions. For example, DL provides Seller with a private online dashboard for visual display of Seller’s complete order history and of Seller’s complete payment history.
DL enables Buyers and Sellers to participate in several kinds of transaction: auction, Buy Now and Best Offer. The obligations of Sellers and Buyers in auctions and Buy Now Deals are described in detail elsewhere in this Agreement.
In a Best Offer Deal, Buyer makes and Seller accepts an offer according to the following rules without limiting the other terms and conditions set forth in this Agreement:
- There is no limit on the number of Buyers who may make a Best Offer for an Item
- A Buyer may make up to five (5) Best Offers for a given Item
- A Best Offer consists exclusively of the amount Buyer is offering to pay for an Item as listed
- A Best Offer is valid for forty-eight (48) hours or until the listing ends, whichever occurs first
- Seller may accept a Best Offer, reject it, ignore it, or make a counteroffer
- If Seller provides no response to a Best Offer within forty-eight (48) hours, the Best Offer is canceled
- If Seller accepts Buyer’s Best Offer, Buyer and Seller must complete the transaction
- There is no minimum or maximum amount for which an Item can be listed or sold
- Negotiation on an Item between Buyer and Seller outside of the DL Site violates the terms of this Agreement
DL supports Users by taking responsibility for addressing, responding to and managing any and all User questions related to the use of the PM Services, including, for instance, specific questions about Merchandise or shipping. DL offers value-added shipping services, including:
- Management of the entire transportation process, from pick up to delivery
- Tracking and tracing of goods in transit
- Customer service support
DL’s Services include integrated transaction closing, e.g. due diligence and verification, and logistics.
DL thus promotes successful transactions between Buyers and Sellers.
Premium services, such as third-party inspection and warehousing, if offered, will be optional for Buyers and Sellers and require the payment of additional fees.
2.3. Confidentiality and Security
DL places the highest value on the privacy and Confidential Information of all Users. DL’s policy concerning the collection, use and protection of personal information is set forth in this Agreement.
DL’s Technologies enable qualified Buyers and Sellers to exchange prices and other information. Often, Seller will be a large and familiar company. Buyer identity will only be disclosed to the extent necessary to complete a transaction and arrange the shipping of goods.
DL engages an independent and secure third party to process all banking and credit card transactions. All payments must be made through a system that comprises a security protocol that involves data encryption, server authentication, and message integrity for internet connections, ensuring that the data User provides to DL is encrypted when transmitted over the internet and cannot be viewed by unauthorized individuals.
All DL servers on which the PM Services are hosted are located in the United States of America.
3. USER OBLIGATIONS
The Services are available exclusively to individuals or entities qualified to form legally binding contracts. Without limiting the foregoing, no minor in any jurisdiction may be a User of the Services.
A prospective User must submit all the information DL will need to approve access to the DL’s Site and Services. A prospective User becomes a User of the Site and has access to Services on the day DL provides notification of approval by E-mail (the Effective Date of the Agreement). DL manages all aspects of this process. DL reserves the right to review and verify the information provided in all registration applications and, at its sole discretion, postpone approval of registration or deny approval in any individual case.
3.3. User Information
Each prospective User shall complete the registration application by providing information that is timely, true and correct, including, but not limited to, legal name, address, phone number, fax number, E-mail address and other personal and business information (collectively, User Information). Failure to provide accurate and complete information could result in action taken against the User, including without limitation the immediate suspension or termination of access to Services. User must promptly notify DL if any User Information becomes obsolete, needs to be updated, changed or deleted for any reason. A change of shipping address may be requested at any time before payment has been applied to the pending transaction. User agrees that E-mail will be the primary means whereby DL communicates with User.
3.4. User Password
User must select Login Credentials subject to DL’s approval. User will be solely responsible for the confidentiality of User’s Login Credentials and all actions and charges related to the Login Credentials on the DL website, including unauthorized use. Disclosure of Login Credentials to any other party is prohibited. DL personnel do not need User Login Credentials to provide the Services and will not request them from any User for any reason other than as provided herein. User agrees to notify DL immediately of any unauthorized use of User’s Login Credentials or any other breach of security concerning the Services.
User shall not (a) access, copy, download, install, adapt, reverse engineer, publicly display or perform or in any way alter or use the technology or programs underlying the PM Services for any purpose, including without limitation for purposes of interoperability, (b) attempt any action that could disrupt DL’s Site or Services, including but not limited to the transmission of any virus-infected files, software routines or bulk E-mail solicitations, (c) replicate DL’s Site or reverse engineer any proprietary software programs or infrastructure pertinent to DL’s Service, (d) employ, or authorize or encourage any third party to employ, any robot, spider, data miner, wanderer, crawler or any other automatic or manual device or process to copy or monitor the PM Services or any element thereof, and/or (e) make any representations related to the availability or performance of the PM Services.
User agrees to hold all Confidential Information in confidence, not to disclose such Confidential Information to any other Party or party, nor to use another Party’s Confidential Information except as provided by this Agreement. Such restrictions will not apply to Confidential Information that (a) is already known to the recipient, (b) becomes known to the public though no act or fault of the recipient, (c) is received by the recipient from a Party or party without a limitation on disclosure or use, or (d) is developed independently by the recipient without reference to the Confidential Information. The restriction on disclosure of Confidential Information will not apply to any requirement or order to disclose by a court of law or governmental agency, provided that the recipient first notifies the disclosing Party of such disclosure requirement or order and uses reasonable efforts to obtain confidential treatment of, or a protective order for, the Confidential Information, including fees, payments and payment integration, and such disclosure is not prohibited by law. User’s respective obligations hereunder will survive the expiration or early termination of this Agreement for a period of three (3) years.
Upon termination of this Agreement, the receiving Party will destroy or return to the disclosing Party all Confidential Information of the disclosing Party, all documents or media containing and such Confidential Information, and any and all copies or extracts thereof.
3.6. DL Management
DL will monitor User compliance with the terms and conditions of this Agreement and current and future operating procedures and rules of conduct established by DL. To this end, DL may, in its sole discretion but not by obligation, inspect material, content and information on the Site, including, but not limited to auction listings, bidding activity and Best Offers. DL may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to meet the terms of this Agreement, to protect the rights of DL, ensure the mechanical integrity and/or quality of the Services as permitted by law, and/or comply with any law, regulation, information, or court order submitted or transmitted to DL. DL reserves the right, at its sole discretion and without liability to any User, to limit DL’s liability by amending, editing, removing or otherwise blocking any material posted by a User which may, in DL’s sole discretion, violate any state, federal or local law or violate any aspect of this Agreement. DL does not assume responsibility for verifying the material, content or information on the Site and will not be responsible for any damages, losses, expenses or other injuries incurred by any User as a result of relying on any material, content and information posted on the Site. DL reserves the right, at its sole discretion, to review the status and compliance of any User with the terms of this Agreement and to suspend or terminate, without notice, a User’s ability to access the Site and Services.
DL will treat User information will all due respect and confidentiality. DL will, however, comply with any and all orders of courts of law and governmental agencies except as prohibited by law. DL further reserves the right to share, sell and distribute User information as permitted by law and to alter this policy at its sole discretion and without prior notice.
3.7. Currency and Payment
All fees and other amounts payable pursuant to this Agreement shall be paid in United States Dollars, free and clear. All fees and sales tax are described in detail elsewhere in this Agreement.
3.8. Title to Assets and Risk
In the case of Asset liquidation goods being received into a DL facility, Seller will grant DL the right to transfer title to Buyer by completing an ASA. DL will then sell, assign, transfer and set over to Buyer all Assets purchased once payment is made and product is picked up. Risk of loss will pass to Buyer upon DL’s tender of shipment to the carrier at DL’s warehouse. Consignee must file claims for any damages in transit with carrier. DL will not become involved in the claims process and cannot influence a carrier’s claim decision. Claims with the carrier must be filed within ninety (90) days of delivery. The claimant shall only file for loss or damage on ordered Merchandise or Inventory ordered, note immediately on the delivery bill of lading any damaged or missing freight, and describe the issue concisely.
4. SELLER OBLIGATIONS
A Seller is a User of the Site who lists merchandise or inventory of any kind. Seller must be able to fulfill the order before merchandise or inventory is listed. No auction listing can be canceled.
4.1. Listing Information
Seller will provide the information DL needs to create and place a listing on the Site. This information will describe and enable the promotion and logistics management of Seller’s Merchandise or Inventory. Seller agrees to submit all such information using the “Seller Tools” function of the site.
Seller will provide DL with accurate product information, descriptions, retail values, prices, lot sizes, weights, other quantities, location, shipping charges, pictures, and any other information that prospective Buyers will need to evaluate the Merchandise or Inventory. Seller is solely responsible for the accuracy of this information. However, DL reserves the right to review this information for consistency and accuracy and to post this information on the Site in a way that will maximize returns. Seller must sign the ASA for an auction to be activated.
If Seller executes an ASA with DL or seeks to sell goods by auction, Seller will be exempt from a No Bid Auction fee for the first two (2) months after submitting the ASA or listing the auction. Thereafter, DL will record all No Bid Auctions. If in any month the number of No Bid Auctions exceeds thirty percent (30%) of the total number of a Seller’s auctions posted on the Site, the Seller will be assessed a fee of thirty U.S. dollars ($30) per auction in excess of thirty percent (30%).
4.2. No Unlawful or Restricted Assets
Seller shall not use DL’s Site or Services to attempt to sell any Inventory of any kind that is illegal in any jurisdiction where the Inventory is offered or delivered, including without limitation counterfeit goods, drugs, guns, pornography, munitions, hazardous waste, non-metal scrap or any other item that DL, in its sole discretion, deems unlawful or restricted. A restricted item is one that generally cannot be sold without a special license or permit by a governmental agency or authority, for example, a federal firearms license or a hazardous materials handling or storage permit.
4.3. Offer to Sell
Seller represents, warrants and agrees that by posting any asset for sale on the Site Seller irrevocably offers to sell the Asset to any Buyer who satisfies the requirements of the auction, terms of payment and shipping. Seller further represents, warrants and covenants that Seller has (a) good and marketable legal title to all Merchandise or Inventory listed by Seller, free and clear of any lien, security interest, leasehold interest, co-ownership interest, or any other type of encumbrance or interest of any other person or entity, and (b) the authority to list and to sell the Merchandise or Inventory on the Site; and that no Merchandise or Inventory infringes or violates, or contains any parts or components that infringe or violate, any third-party’s copyright, patent, trademark, trade secret or other IP or proprietary rights.
Failure of Seller to complete the sale of Merchandise or Inventory to a qualified Buyer due to non-delivery or misrepresentation of said Merchandise or Inventory could result in damages payable to DL. Such damages will be due immediately and payable by the Seller to DL upon written demand from DL. Should any additional shipping costs be incurred due to incorrect shipping information and/or preparation, Seller shall pay these costs.
Seller acknowledges that Buyer may fail to perform as expected, despite DL’s best efforts. If payment is not received within ten (10) business days of a Deal, the sale will be canceled and Buyer’s account will be terminated.
In the case of Items consigned to DL, Seller grants DL an exclusive right to sell each and every Asset in the quantity specified in the Schedule 1 of the ASA throughout the entire period that the Asset is listed on the Site. Seller shall pay a commission to DL if a Buyer acquires the Asset during the listing period indicated on the ASA, regardless of the means whereby Buyer became aware of the sale of the Asset and acquired it and of the identity of Buyer.
4.5. Shill Bidding
Shill Bidding may violate state and federal laws, subjecting perpetrators to criminal prosecution. Engaging in Shill Bidding on or through the Site or Services is strictly forbidden and may result in removal of auction item listings, account suspension, referral to law enforcement agencies, and/or criminal prosecution.
4.6. Transaction Fees and Payment
Seller agrees to pay a fee for the successful marketing of Merchandise or Inventory and the associated PM Services, which include the identification of qualified Buyers.
In the case of Items sold by an auction, a Buy Now or a Best Offer Deal, DL will remit to Seller the full sale price paid by Buyer less a 10% transaction fee. All taxes collected will be remitted to Seller. Seller shall take complete responsibility for reporting taxes as required under state and federal law.
In the case of Items sold by consignment to DL, Seller will invoice DL for the appropriate amount when Merchandise or Inventory is shipped. The fee for successful marketing will depend on the Merchandise or Inventory and the size of the transaction. DL and Seller agree that the fee for each and every Item in Schedule 1 of an ASA will be ten percent (10%) of the sale price of each Item, excluding sales taxes and shipping fees. Seller’s obligation to pay fees incorporates by reference Section 7 (Non-Circumvention). Payment will be due within fifteen (15) business days of delivery of invoice.
Seller will pack and ship the Merchandise or Inventory sold within 72 hours of the receipt of payment. The shipment must be ready when the driver arrives. Otherwise, a delay in shipment of 24 hours or more will be likely. If Buyer schedules pickup based on notification from Seller that freight is ready for pickup, Seller will be responsible for any and all costs associated with turning a truck away or detaining a truck.
5. BUYER OBLIGATIONS
A Buyer is a User who bids on and/or purchases Items of any kind on the Site. All Buyers represent, warrant and agree to the following.
5.1. Bidding Activity
5.1.1. Buyer intent. Except as otherwise stated in writing by DL, all Assets are sold “as is, where is” with all faults. Buyer, by bidding on any auction Asset/s, by making a Best Offer or by executing a Buy Now transaction, demonstrates Buyer’s intention and financial capacity to complete the purchase of the same Asset/s.
5.1.2. Retraction of bid. No bid can be retracted, amended or modified without the prior approval of DL. DL reserves the right not to retract, amend or modify a bid as requested by Buyer.
5.2. Transaction and payment
5.2.1. Outstanding transactions. DL reserves the right to limit a first-time Buyer to no more than two (2) concurrent transactions requiring payment. Buyer, on completing a first transaction, will be able to bid or purchase without restriction. Completing a transaction will include Buyer paying for, receiving and accepting the purchased Asset/s.
5.2.2. Failure to complete transaction. Buyer activity will be monitored. In the absence of Seller fraud, failure of Buyer to complete the purchase of Assets of a Deal may result in damages against Buyer, including all damages available at law or equity. Specifically, (a) Seller will retain the right to resell Seller’s inventory, (b) Buyer’s account may be suspended for a period determined by the sole discretion of DL, and (c) in the case of repetitive failure to complete transactions, Buyer’s account will be terminated without prior notice.
5.2.3. Payment. Buyer agrees to pay DL the total amount of any and all Deals, including all shipping costs, applicable duties and taxes. Buyer agrees to make immediate payment for the total amount of any and all Deals, using methods provided by DL. If payment is not received within two (2) business days of the Deal, (a) Buyer will be in default and (b) Buyer’s account will be suspended with immediate effect and remain suspended until all fees are paid.
If Buyer has the highest bid in an auction, if Buyer’s Best Offer is accepted, or if Buyer purchases Merchandise or Inventory in a Buy Now transaction, Buyer must ensure that all necessary information is available for the delivery of the Merchandise or Inventory.
If Buyer refuses shipment of the Merchandise or Inventory upon arrival at Buyer’s designated shipping destination, Buyer will be responsible for the associated shipping charges. Buyer must inspect the received goods received and report any discrepancies within a reasonable amount of time following receipt, normally five (5) business days, or waive any claim for damages or non-conformity of the goods.
Buyer is solely responsible for and shall pay the costs of any and all shipping arrangements necessary for the transportation of Asset/s, including all trucking, shipping, special handling (e.g. residential delivery, lift gate, call for appointment), duties, clearing costs, brokerage fees and customs for Asset/s purchased for export.
Buyer may elect to arrange shipping. DL support staff will send Buyer an E-mail request for shipping information and work with Buyer and Seller to arrange pickup time.
Please note that our policy requires all orders to be picked up within 14 days to maintain steady inventory flow and competitive pricing. Failure to abide by this policy results in order cancellations and a 10% re-stocking fee.
Buyer may also elect to have DL arrange shipping. A quotation can be obtained by E-mail from [email protected] If DL arranges shipping, Buyer should not call the freight carrier or terminal, as this will duplicate pickup scheduling.
Shipping for which the service is “non-standard” could require the payment of additional fees (an “accessorial fee”). The following options are available:
- Delivery appointment. This indicates whether delivery appointment is required at the receiving location.
- Commercial. This indicates whether the receiving location is a commercial site.
- Liftgate service. When the shipping or receiving address does not have a loading dock, manual loading or unloading is necessary. A liftgate is a platform at the back of certain trucks that can raise and lower a shipment from the ground to the bed of the truck. Additional fees apply for this service.
- Residential delivery. If Buyer does not have a commercial location that actually opens and closes at set times each day within a commercial zone, additional fees will apply for delivery.
If Buyer cannot pick up or would like DL to arrange shipping, Buyer should consider using a common carrier. Truck transportation can be more economical than pick up.
Truckload shipment requirements are as follows:
- All truckload shipments will be transported on a 48-foot or 53-foot trailer with no lift gate.
- Truckload shipments cannot be delivered to any residence or any residential area due to truck size constraints.
- The shipping destination must have a loading dock or equipment to remove the pallets from the trailer (forklift, pallet jack, etc.).
- The driver of the truck will not assist in the unloading process.
- Truckload carriers allow a maximum of 2 hours to unload a trailer. A detention fee will be charged if this limit is exceeded.
- The truck scheduling process will begin once payment for the purchased Merchandise or Inventory and freight is received and processed.
- The first step of the truck scheduling process will be to assign the first available vehicle to pick up Buyer’s Merchandise or Inventory.
- In the next step of the process, the carrier will contact Buyer to schedule a delivery appointment at the delivery location.
- Vehicle availability can influence the pick up time. This could take twenty-four (24) to forty-eight (48) hours.
Buyer may pick up an order from the warehouse after payment is processed. Buyer must first schedule an appointment with the warehouse, allowing time to stage the order. Any Buyer who arranges the shipping of purchased goods thereby waives the right to claim damages or non-conformity of goods once the goods are released by Seller.
All questions about shipping should be sent to DL at [email protected]
5.4. Price Adjustment
All Inventory of a Deal must be manifested. Seller is responsible for providing all Items, Merchandise or Inventory indicated on the manifest.
When selling an Asset on a per unit price basis, Seller shall have the right to vary the quantity delivered by a percentage explicitly disclosed in the listing. Buyer agrees to accept any quantity within the stated limit. Outside this limit, the actual purchase price can be higher or lower, depending on the quantity delivered to and accepted by Buyer.
Buyer seeking a price adjustment should follow the dispute process described in Section 8.
5.5. Sales Tax
DL will calculate the taxes due on each transaction. DL will not justify or consider waiving the sales tax on any closed transaction and/or future transaction unless Buyer provides DL with appropriate documentation.
Buyer is responsible for all resale taxes. Buyer must provide DL with a copy of Buyer’s reseller certificate if (i) Items will be resold and (ii) Buyer is located in a state in which Seller has a presence or from which Seller ships Items. For example, if Seller has a facility in Colorado, if the Buyer is located in Colorado and resells any Item obtained from Seller, Buyer must provide DL with a reseller certificate for Colorado, even if Seller ships Item from any state other than Colorado.
Completed forms should be faxed to (305) 744-5189. Buyer must include the DL Username/E-mail on the form or the fax cover sheet.
If Buyer has not provided DL with a reseller certificate and Buyer resides in the state from which Merchandise or Inventory is shipped, Seller will be responsible for filing for applicable state taxes. Seller may therefore limit the Buyer pool to Buyers with a valid reseller certificate on file with DL.
DL makes use of a third-party fraud detection service to guarantee DL’s transactions. No Merchandise of Inventory will be shipped until this service provider guarantees the transaction.
5.7. Compliance with Law
Buyer shall comply will all federal, state and local laws applicable to the provision of Services and its obligations hereunder, including but not limited to all applicable immigration laws, child labor laws and ay other applicable labor or employment law. Buyer shall obtain all necessary permits and licenses required by law to handle and sell Asset/s and keep the same in effect throughout the pendency of this Agreement.
Buyer is solely responsible for adhering to all state and federal requirements for the transport, storage and further marketing, sale, distribution and disposal of Asset/s acquired through PM Services. Buyer shall not sell, lease or otherwise transfer, market, distribute or dispose of any Asset/s unless Buyer first Demanufactures such Asset/s, including any Asset/s to be sold outside the United States of America. Buyer’s failure to Demanufacture any Asset will be considered a material breach of this Agreement and grounds for immediate and permanent suspension of Buyer’s account. Buyer shall not inform its customers that Merchandise or Inventory can be returned to a retail outlet of the retailer. Buyer’s failure to comply with this condition will be deemed a breach of this Agreement and may require payment of a liquidation charge to the retailer and other remedies.
In the event that Buyer is unable to sell the Asset/s, Buyer shall dispose of the Asset/s in compliance with all applicable federal, state and local laws and regulations, including but not limited to applicable environmental laws and regulations.
Personal user data must be removed, and all Assets that contain any form of memory or the ability to save personal user data must be digitally wiped and sanitized. All computers must have their data wiped in accordance with the US Department of Defense 5220.22 M data sanitization standards, and all Apple devices, televisions and/or devices holding personal information must have their data sanitized in accordance with the US National Institute of Standards and Technology Special Publication 800-88 guidelines.
Buyer agrees to remove and destroy any written warranties packaged with any Item prior to any resale of the Item. Buyer further agrees to remove or obliterate any and all nomenclature, plates, identification tags, sales tickets, documents, labels, legends, stencil information, manuals, instructions, price tags, or any other materials or information on the packaging, inside the packaging or on Items which in any way identify DL or any affiliated or related company of DL.
Waste electronics derived from operations involving products provided as part of this program must be managed in an environmentally responsible manner. Buyer shall provide information regarding electronic waste service providers that will be utilized and methods for ensuring that any electronic waste is transported and handled properly. Electronic waste service providers to be utilized by Buyers must maintain either Basel Action Network e-Steward certification and/or US Environmental Protection Agency Responsible Recycling certification. Preference will be given to Buyers who utilize electronic waste service providers who maintain both certifications. DL reserves the right to direct any Buyer in any transaction with DL to an e-waste service provider that meets DL’s sustainability goals and has obtained one or both of the said certifications for their own operations. Buyer shall be responsible for ensuring that any secondary purchaser complies with the same restrictions.
If Buyer fails to comply with any term or condition of this Agreement, (a) DL will be entitled to seek both legal and equitable relief, (b) Buyer will be fully responsible for financial compensation and equitable relief to DL and any other injured party, including attorneys’ fees, costs and expenses incurred through such processes, and (c) Buyer will be barred from further transactions on the Site with immediate effect.
6. PAYMENT COLLECTION
Upon the close of a sale, DL’s payment collection team will use commercially reasonable efforts to contact Buyer in order to ensure timely payment. Payment will be collected for all costs associated with the transaction, including shipping expenses. DL will remit the net proceeds to Seller. All payments must be made by an approved payment method. The approved methods are (i) wire transfer, (ii) credit card meeting the criteria of DL’s policies and guidelines, and (iii) Behance financing (see https://www.behance.net).
If Seller is unable to complete the transaction or ship the Asset/s due to unforeseen circumstances, Buyer agrees that neither Seller nor DL can be held liable for damages beyond reimbursement of monies paid to DL or Seller.
Seller acknowledges that despite DL’s best efforts, Buyer may fail to perform. DL provides no representation or guarantee that Buyer will pay Seller on the agreed price or on a timely basis.
DL will report instances of credit card fraud to proper law enforcement authorities and prosecute offenders to the full extent of the law. Credit card fraud includes, but is not limited to, any instance where Buyer has charged back a credit card payment and maintained possession of the Asset/s without the consent of Seller.
User agrees not to engage in Circumventing Transactions of any type. Seller agrees that, if Seller completes a Circumventing Transaction before 12 months after the expiration of Seller’s auction or a Deal, Seller will be obligated to remit a success fee to DL of fifteen percent (15%) of the final aggregate gross sale price for the Asset/s sold in the Circumventing Transaction. This clause applies to Users and their principals, agents and representatives, including but not limited to employees, consultants, bankers, attorneys, accountants, assignees, heirs and transferees.
8. DISPUTE RESOLUTION
8.1. In General
If Buyer believes Seller misrepresented auction with regard to quality or quantity of Asset/s, Buyer should initiate a dispute by sending an E-mail to [email protected] Buyer must include with this E-mail supporting evidence for each claim made (e.g. manifest, photos). Failure to provide supporting evidence may result in denial of a claim. Buyer must have a dispute on file for DL to undertake any action on behalf of Buyer. Buyer is advised to make a thorough assessment of the manifest, condition of Asset/s, shipping terms, and images of Asset/s prior to bidding or filing a dispute form. If Buyer elects to arrange shipping, Buyer thereby agrees to waive the right to dispute the Asset/s and assume full responsibility for the Asset/s at the pick-up point. Buyer is advised to inspect Asset/s before the same leave/s the pick-up point.
In the event of a dispute between Buyer and Seller relating to a pending transaction, including any controversy or claim arising from the interpretation of this Agreement, Buyer and Seller agree to cooperate with DL to resolve the dispute before taking other action. Cooperation could involve providing DL with a written account of the facts and supporting documentation by a certain date. DL will seek a fair agreement between Buyer and Seller.
If DL has not resolved the dispute within ten (10) business days of receipt of the dispute form, then DL may, at its sole discretion, consent to the Party requesting relief to seek resolution of the dispute by arbitration. In this case, the Party shall initiate such arbitration through the American Arbitration Association (“AAA”). The AAA and the Parties must comply with the following rules: (i) each Party must bear its own cost of arbitration, (ii) arbitration will take place in Miami, Florida, where DL maintains offices, (iii) arbitration must be in accord with the procedures and rules of the AAA, and (iv) the judgment rendered will be binding and final upon the Parties thereto and may be entered in the Court of Common Please of Miami-Dade County, Florida.
8.2. Refund/Return Policy
Refunds or returns of Merchandise must be approved by DL and follow the honoring of a dispute. Any attempt to rescind a payment or return property prior to authorization by DL will result in a delay of claim resolution and may adversely impact Buyer’s ability to make use of the Site. Unauthorized returns will be refused at delivery. Seller will carry out a full inspection of all authorized returns upon receipt. All units must be the same as shipped to the customer, including serial number, included accessories, etc. to be eligible for a full refund. Title to property will remain with Buyer until the returned property is accepted by Seller.
9.1. Interruption of Service
DL will make all commercially reasonable efforts to maintain the availability of DL’s Site and Service for all Users. DL will not be responsible for any damages or losses related to any system errors or interruptions affecting the Site or the processing of any online liquidation auctions or sales. User accepts that the Site could become unavailable unexpectedly as a result of circumstances beyond DL’s control or for routine maintenance.
9.2. Changes to Site and Services
DL reserves the right, in its sole discretion and without notice, to modify, suspend or terminate any aspect of its Site and Services, including, but not limited to, content, auction features, news and information, and product categories.
9.3. Record Keeping
DL maintains records relating to historical auction transactions and bidding activity. However, DL does not guarantee the preservation or maintenance of this information. DL encourages all individual Users to maintain records and an account of all activities on the Site.
DL will not be responsible for the calculation, determination or anticipation of any taxes that may be assessed or owed by any User related to the use of the Site or Services. User understands and agrees that User is solely responsible for paying any taxes that may be incurred from using the DL’s Site or Services.
9.5. No Agency
The relationship between each User and DL is that of an independent contractor. No agency, partnership, joint venture or franchise relationship is implied, intended or created by the terms and conditions of this Agreement. This Agreement does not create, and nothing contained in this Agreement will be deemed to establish a joint venture between the parties, or the relationship of employer-employee, partners or principal-agent. Further, neither party will have the power to bind the other without the other’s prior written consent nor make any representation that it has any such power.
9.6. Site is Merely a Venue
The Site, including any associated sites, is a venue for Users to exchange information and facilitate transactions, nothing more. It is expressly understood and agreed that DL is not a broker or agent and has no duty to provide any User a service outside the Services expressly outlined in the terms and conditions of this Agreement. Unless stated otherwise, DL is not a party to any transaction between a Buyer and a Seller. DL does not guarantee the quality, safety, condition or ownership of the Assets on the Site and does not guarantee the accuracy of the information provided in the description of any Asset/s. Buyers are encouraged to perform their own due diligence without notice, including, but not limited to, using the Site’s “Ask the Seller a Question” feature and arrange their own on-site inspection. DL does not guarantee any individual Seller’s or Buyer’s ability to complete transactions using the Service and makes no representation regarding the identity, creditworthiness or performance of any User.
9.7. Export of Property
User acknowledges and agrees that certain goods, software, and technology may be subject to the export control laws and regulations of the United States of America, including but not limited to the Export Administration Regulations, the International Traffic in Arms Regulations, and regulations of the U.S. Department of Treasury, Office of Foreign Assets Controls. User agrees to comply with all applicable export laws and regulations. User may not, without prior authorization of the government of the United States of America, export, re-export, or transfer any goods, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of these countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any goods, software or technology may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction, e.g. nuclear, chemical, or biological weapons, and the missile technology to deliver them. DL does not sell property to persons from the countries that are prohibited from receiving transfers of military equipment or technology. Buyers are advised that purchasing from DL and then reselling or attempting to export Merchandise to persons in these countries is prohibited. Users should check with the appropriate government agency for a current list of prohibited countries. The list of prohibited countries is subject to change at the discretion of the U.S. government. If Buyer wishes to export Asset/s from the United States of America, Buyer must obtain one or more proper export licenses prior to DL transferring title and releasing goods. DL does not assist with export licensing. DL will, at its sole discretion, provide User with a contact information for a customs broker for export. Buyer shall pay all costs associated with obtaining the licenses. DL assistance will be limited to providing information needed to complete required export license applications, export declarations, or other such forms. DL does not advise on export-related forms, licenses, or agencies having jurisdiction over different kinds of property. Buyer is encouraged to seek legal advice on this matter.
9.8. General Release and Hold Harmless for Loading of Buyer’s Property
In the case of goods consigned to DL, Buyer accepts that DL will not assist loading product into a conveyance unless it is of dock height. The loading of product into all other types of vehicle will be the sole responsibility of Buyer. In exchange for the assistance DL provides in the staging, positioning, loading, or securing of Buyer’s property, Buyer and Buyer’s subsidiaries, affiliates, directors, officers, employees, vendors, suppliers and agents release, hold harmless and agree to defend DL and its subsidiaries, its and their officers, directors, employees, vendors, suppliers and agents from any and all liability for any damages to property or to persons that may arise in connection with the movement of the property from DL’s dock.
USER AGREES NOT TO HOLD DL, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY OF USER’S DEALINGS WITH ANY OTHER USERS.
9.9. Notice and Communication
Unless stated otherwise, all notice and communication between User and DL will be by E-mail to the address provided by User in the registration application or by a post on the Site. However, DL reserves the right to choose, at its sole discretion, to deliver a notice by personal delivery, overnight courier, confirmed facsimile, or certified or registered mail, return receipt requested. DL will deem a notice delivered twenty-four (24) hours after it is transmitted by E-mail, posted on the Site or deposited with an overnight carrier, five (5) days after it is deposited in the US mail, or immediately after receipt of a facsimile is confirmed. If DL receives a message that User’s E-mail is disconnected or no longer valid, or that E-mail communication could not be delivered, regardless of the reason, DL will deem the notice delivered when it is posted on the Site. Any letter sent by DL to User by post will be a courtesy copy only and will have no bearing on the date the notice was delivered. DL will contact Buyer by phone if payment or pickup is pending to avoid penalties.
User must reference the relevant order number/s in communication with DL.
9.10. Warranty and Indemnification
DL and User each represents and warrants to the other that (a) it has full power and authority to enter into this Agreement and to grant the licenses provided herein and (b) this Agreement has been duly authorized, executed and delivered DL and by User.
Seller represents and warrants to DL that it owns, or has obtained all necessary rights to distribute and make available as specified in this Agreement, any and all Inventory made available to Buyers.
User agrees to indemnify and hold harmless DL and its successors, parents, affiliates, assigns, subsidiaries and divisions, and each of their respective present and future officers, directors, employees, agents and/or clients, independent contractors, suppliers and business associates 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’ and paralegal fees and costs), penalties, fines, judgments and liabilities or other relief sought of any kind and nature whatsoever arising from (i) any sale or resale of Asset/s, including sales taxes, claims, demands, damages, actions, suits or proceedings of any kind or nature, including but not limited to claims, legal requirements, demands or actions of any kind arising from the collection of sales tax for the merchandise purchased, (ii) any misrepresentation or breach of this Agreement, (iii) any actual or alleged act of commission or omission by Buyer and/or Buyer’s successors, parents, assigns, subsidiaries and divisions, and each of their respective present and future officers, directors, employees, agents and/or clients, independent contractors, suppliers and business associates.
DL will defend, indemnify and hold Seller harmless from and against any and all Claims which Seller could incur as a result of any third-party actions arising from or related to a (a) breach of any of DL’s representations, warranties or covenants herein, and/or (b) misappropriation of any third party’s trade secret or infringement by any Company Mark or DL Technology of a US patent, copyright or trademark right or any other IP right of a third party. Such indemnification will be DL’s sole and exclusive remedy as a result of any third-party actions arising from infringement.
Seller will defend, indemnify and hold DL harmless from and against any and all Claims which DL may incur as a result of any third-party’s actions arising from or relating to (a) breach of any of Seller’s representations, warranties or covenants herein, (b) sale or display of the Inventory, (c) use of the Inventory and any damages resulting therefrom, and (d) with respect to the Inventory, misappropriation of any third-party trade secret or infringement of any IP, privacy, moral or proprietary right of a third party. Such indemnification will be Seller’s sole and exclusive obligation and DL’s sole and exclusive remedy as a result of any third-party actions arising from infringement.
The foregoing obligations of DL and Seller are conditioned on the indemnified Party: (a) giving the indemnifying Party notice of the relevant Claim, (b) cooperating with the indemnifying Party, at the indemnifying Party’s expense, in the defense of such Claim, and (c) giving the indemnifying Party the right to control the investigation, defense and settlement of any such Claim, except that the indemnifying Party will not enter into any settlement that affects the indemnified Party’s rights or interest without the indemnified Party’s prior written approval. The indemnified Party will have the right to participate in the defense at its own expense.
In the event of a dispute between two Users, Users release DL, directors, officers, employees and agents from claims, demands and damages, whether actual or consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. This release includes any claims brought by any individuals relating to misuse or unauthorized use of data User gives to DL. Users agree to defend, indemnify and hold harmless DL, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all damages (whether direct, consequential or otherwise), claims, liabilities, costs and expenses incurred (including, without limitation, all reasonable attorney fees and costs), as a consequence of any acts by User undertaken in connection with DL’s Site and Services, including without limitation, those arising out of any breach of any User representation or warranty, User’s obligations hereunder, any transaction attempted with the Service, or any dispute between User and any other User.
9.11. Third-Party Links
The Site may contain links to other websites or resources for the convenience of Users in locating related information and services. User acknowledges and agrees that DL is not responsible or liable for (i) the availability or accuracy of such sites or resources or (ii) the content, advertising or products on or available from such sites or resources, the agreements that may govern the use of such sites or resources, or the privacy policies and data collection, use or retention practices of such sites. The inclusion of any link on the Site will not imply that DL endorses the linked site. All use of the links is done at User’s own risk.
This Agreement will be construed in accordance with and governed exclusively by the laws of the State of Florida applicable to agreements made among Florida residents and to be performed wholly within such jurisdiction, regardless of the parties’ actual domiciles, without regard to the conflicts of law provisions thereof, and, to the maximum extent permissible, without reference to that body of law known as the Uniform Computer Information Transaction Act. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator/s may be entered in any court having jurisdiction thereof.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, then such provision shall be enforced to the maximum extent permissible and the remainder of this Agreement shall continue in full force and effect. The Parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
9.14. Term and Termination
The term of this Agreement will commence on the Effective Date and continue until the day DL or User delivers notice to the other party of the intent to terminate (the “Termination Date”). No further listings will be placed for User after the Termination Date. The terms and conditions of this Agreement constitute a binding agreement between DL and each User until terminated by User or DL. User may discontinue use of Site and Services at any time with or without notice to DL. DL may consider abandoned any account on which no activity has occurred (User has not logged in) for 365 consecutive days and may terminate the account without further notice. Upon termination of an account, the respective User cease use of the Site and Services. DL expressly reserves the right to terminate or refuse to permit use of the Site and Services by any person or entity, at the sole discretion of DL for any reason and without notice.
9.15. Disclaimer of Warranties
Seller represents and warrants that, except as otherwise expressly provided herein, DL is not responsible for (a) any errors or omissions arising from the listing of Inventory through the PM Services, (b) losses or damages arising from the use of Inventory by a Buyer or any party, (c) any Inventory provided through or in conjunction with the PM Services, including without limitation any failures, delays or interruptions in the delivery of the Inventory.
EXCEPT AS SPECIFIED IN THS AGREEMENT, INCLUDING ALL EXHIBITS HERETO, DL DOES NOT MAKE ANY WARRANTY OF ANY KIND IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER. EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE PRIVATE MARKETPLACE SERVICES AND DL TECHNOLOGIES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DL DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ACCURACY. DL DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE PRIVATE MARKETPLACE, SERVICE OR DL TECHNOLOGIES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE.
THE SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE SITE OR SERVICES, ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. DL DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY SYSTEM INTEGRATION OR QUIET ENJOYMENT. DL DOES NOT WARRANT THAT THE SERVICES, FUNCTIONS, FEATURES OR CONTENT WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. DL MAKES NO WARRANTY THAT THE LISTED ASSETS, SITE OR SERVICES WILL MEET USERS REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING THE LISTED ASSETS, THE LISTED ASSETS WILL BE SOLD. DL MAKES NO WARRANTY REGARDING ANY LISTED ASSET/S OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE, INSTRUCTION OR INFORMATION RECEIVED BY A USER FROM THE DL SHALL CREATE ANY WARRANTY BY DL NOT EXPRESSLY MADE HEREIN. DL EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY LISTED ASSETS SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
9.16. Limitation of Liability
IN NO EVENT WILL DL OR ANY SELLER BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (a) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSET/S OR (b) DEFECTS IN SUCH ASSET/S ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY. IN NO EVENT WILL DL BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE OR MAY BE DIRECTLY OR INDIRECTLY RELATED TO THE USE OR CONTENT OF SUCH ASSET/S, INCLUDING WITHOUT LIMITATION ANY MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF DL OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SELLER IS RESPONSIBLE FOR SELLER’S GOODS SOLD. IN NO EVENT WILL DL’S TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR IN TORT) EXCEED THE AMOUNT OF FEES PAID BY THE USER TO DL IN CONNECTION WITH THE DISPUTED ASSET/S.
The Parties agree that the limitations of liability set forth will survive and apply even if any limited remedy specified in this Agreement is found to have failed its essential purpose. Some jurisdictions may not allow the limitation or exclusion of incidental or consequential damages, so the above limitation may not apply to certain Users.
The failure of DL to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. Any waiver of any right, provision, term or condition must be in writing, signed by our authorized representative, and will be effective only for the instance specified in the writing.
9.18. Oral Representations
Any oral statement or representation by any representative of DL, changing or supplementing the written description of the offering or the published terms and conditions of this Agreement, is unauthorized and confers no right on the User and may not be relied on by the User. No interpretation of any provision of the terms and conditions of this Agreement, including applicable performance requirements, is binding on DL unless agreed to, in writing by the DL.
9.19. Intellectual Property and Other Rights
DL does not grant a license or subscription under this Agreement, and any rights not expressly granted to a licensee hereunder are reserved by DL or its suppliers. No party will exceed the scope of the licenses granted hereunder.
DL and User each reserves any rights not expressly granted in this Agreement and disclaims all implied licenses, including, without limitation, implied licenses to trademarks, copyrights, trade secrets, patents and other forms of IP.
9.19.1. DL IP. DL retains all right, title and ownership in and to all elements of DL’s Technology, the relations of these elements to the PM Services, and all transactions contemplated under this Agreement, including without limitation any modifications or improvements to DL’s Technology or the PM Services. DL is the sole and exclusive owner of DL’s Technology unless otherwise stated. None of DL’s Technology may be used in any way without the prior written consent of the DL. For example, no display or use of Company’s Marks may be made without the express written permission of DL.
DL reserves the right to improve, enhance and modify DL’s Technology, providing this will not degrade the availability to Users of any feature of the PM Services. DL IP may be created by one of more DL employees in relation to the use or development of the Services or User feedback regarding the Site or Services. User hereby irrevocably assigns to DL all right, title and interest User may acquire in any DL IP. DL retains right, title and interest in and to all data derived from the PM Services. DL may, at its sole option, seek legal protection for any form of DL’s Technology. All DL IP will be subject to the conditions of this Agreement until this Agreement is superseded, after which time all DL IP will be subject to the conditions of the superseding agreement.
9.19.2. User IP. All trademarks, trade names, logos, and service marks featured on the Site are the property of the owners of said IP. DL disclaims any associations or endorsements that may be implied through the use of the trademarks, trade names, logos or service marks of others.
9.19.2. Infringement. Seller agrees not to offer or deliver Inventory that in any way violates or infringes the IP, personal or proprietary rights of any third party, including but not limited to, copyrights, trademarks, patents, trade secrets or confidentiality obligations.
Buyer agrees not to use Seller’s name, logo, trademark or service mark, whether known or suspected, nor any photographs, images, illustrations or other depictions from the Seller’s website, in any remarketing or re-selling of the products purchased from this site if this would violate the IP rights of the Seller.
9.19.3. Infringement notification. Under U.S. federal law, knowingly misrepresenting that online material infringes copyright is subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs and attorneys’ fees. The full Digital Millennium Copyright Act of 1998 (DMCA) is available here: http://www.copyright.gov/legislation/dmca.pdf.
If a copyright owner believes the said copyright is infringed by any feature of DL’s Service, copyright owner (or person authorized to act on behalf of the owner) should notify DL immediately at [email protected], consider contacting an attorney in relation to User’s rights and responsibilities under the DMCA and other applicable laws, and provide the following information:
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner (if different from the owner);
- Identification of the copyrighted work that this person claims has been infringed;
- Identification of the material that this person claims to infringe on the copyrighted work and where the material is located on the Site;
- Information reasonably sufficient for DL to contact this person;
- A statement of good faith that use of the material that is claimed to infringe is not authorized by the copyright owner, this person (if different from the owner), or law, and
- A statement, made under penalty of perjury, that the above information is accurate and that this person is authorized to act on behalf of the copyright owner (if different from the owner).
DL will attempt to review all infringement notices within twenty-four (24) hours of receipt. DL will then
- Remove or disable access to the material;
- Notify the respective User that DL has removed or disabled access to the material;
This procedure does not constitute legal advice but is instead the means whereby DL will comply with its rights and responsibilities under the DCMA.
9.19.4. Infringement counter-notification. If User believes the material that was removed or to which access was disabled does not infringe on a copyright, or if User believes that User has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, User will have fourteen (14) days in which to provide DL with a counter-notice. The counter-notice must contain the following information:
- A physical or electronic signature of User;
- Identification of the material that has been removed from the Site or the location to which access has been disabled in response to the claim of infringement;
- A statement of good faith that the removal of the material from the Site or the disabling of access to material on the Site was mistaken;
- A statement that User consents to the jurisdiction of the federal court for the judicial district in which the User’s address is located and that User will accept service of process from the person authorized to act on behalf of the copyright owner.
DL will attempt to review all infringement counter-notices within twenty-four (24) hours of receipt. DL will then
- Restore or enable access to the material; and
- Notify the respective User that DL has restored or enabled access to the material;
- Terminate the Agreement of any User that fails to comply with DL’s copyright infringement policy as set forth here.
This Agreement may not be assigned by User or by operation of law to any other person, persons, firms or corporations without the express written approval of DL.
Any and all ASAs of a given Seller are counterparts of this Agreement, each ASA will be deemed an original, and the entire content of any and all ASAs and this Agreement will constitute one instrument. The Agreement constitutes the entire understanding and agreement between the User and DL, and it supersedes any previous understandings or agreements, whether oral or in writing, between User and DL.
9.22. Translation of the Agreement into Languages Other than English
Translation of this Agreement into a language other than English is permissible for User’s convenience, but the English language version of the Agreement will govern in the event of a conflict.
All section headings are for reference purposes only and in way define, limit, construe or describe the scope or extent of the respective sections.
9.24. Force Majeure
DL shall not be liable for any delay in or the impairment of performance resulting in whole or in part from acts of God, labor disruptions, shortages, inability to produce product, supplies of raw materials, weather conditions, war or any other circumstances beyond the control of DL in the conduct of its business.
9.25. Changes to this Agreement
DL may, at its sole discretion, remove or change any aspect of this Agreement. The Effective Date of any change to this Agreement will be the time at which DL informs User of such change by E-mail. DL will provide User 30 days’ notice regarding any such change to the Agreement. Users are encouraged to review the terms and conditions of this Agreement to ensure that they are aware of any such change. DL will not be liable to User for any failure of User to become aware of such change to the Agreement. User’s continued use of any feature of the PM Services will constitute acceptance of any such change to the Agreement.
9.26. Service Provider
User agrees that DL is entitled to subcontract to third parties selected by DL any of its contractual obligations related to the provision of Services described herein.
9.27. No Third-Party Beneficiaries
Except as otherwise expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person other than the Parties to this Agreement.
9.28. Resale Tax
Buyer agrees to collect and pay any and all sales Taxes pertaining to resale of any Merchandise or Inventory.
9.29. Ethics Policy
Neither Buyer nor its agents shall offer to any DL teammate monetary compensation, gratuities, gifts, premiums, awards, entertainment tickets, coupons, trips, bonuses or prizes, regardless of monetary value, or solicit any DL teammate to falsify any record, receipt, invoice or the like. Any such action will be a considered a breach of this Agreement.
Buyer or its agents shall notify DL if they are solicited by any DL teammate and/or Seller employee who seeks a favor of any nature in exchange for Assets or Services. Failure of Buyer to notify DL of such DL teammate and/or Seller employee impropriety will be construed as a breach of this Agreement.
Buyer agrees not to contact in any way or by any method any of DL’s clients, affiliates, suppliers, contractors or business associates to which Buyer has been introduced by DL without the express written permission of DL.
10. ADDITIONAL TERMS AND CONDITIONS FOR DIRECTLIQUIDATION.COM BUYERS
The following terms and conditions apply in addition to the preceding terms and conditions of this Agreement.
10.1. Site Regulations
The technology, software, and data underlying the Site are the property of DL or DL’s affiliates or partners. User agrees not to copy, modify in any manner or form, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in or otherwise transfer any right to the technology or software underlying the Site, or use a modified version of such technology or software for any purpose, including without limitation obtaining unauthorized access to the Site.
Without limiting the foregoing, User agrees not to use the Site for any of the following actions:
(a) Defame, abuse, harass, stalk, threaten or otherwise violate the legal right of others;
(b) Publish, post, upload, email, distribute or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content;
(c) Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, our sites, any software or hardware, or telecommunications equipment;
(d) Advertise or offer to sell any goods or services for any commercial purpose unless User has DL’s written consent to do so;
(e) Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, or chain letters;
(f) Download any file that User knows, or reasonably should know, cannot be legally obtained in such manner;
(g) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
(h) Restrict or inhibit any other User from using and enjoying any public area within our sites;
(i) COLLECT, STORE OR TRY TO GAIN ACCESS TO PERSONAL INFORMATION ABOUT OTHER USERS, CUSTOMERS, SUPPLIERS OR ENTITIES THAT HAVE USED THE SITE;
(j) USE DATA ABOUT USERS, CUSTOMERS OR SUPPLIERS OR THIS SITE FOR PERSONAL GAIN;
(k) Interfere with or disrupt DL’s Site, servers or networks;
(l) Impersonate any person or entity, including but not limited to a DL representative, or falsely state or otherwise misrepresent User’s affiliation with a person or entity;
(m) Forge headers, manipulate identifiers or other data in order to disguise the origin of any content transmitted through our sites or manipulate User’s presence on our sites;
(n) Take any action that imposes an unreasonably or disproportionately large load on our infrastructure.
(o) Engage in any illegal or fraudulent activities.
User agrees to use facilities provided on the DL’s site (the “Forums”) only to send and receive messages and material proper and related to the Forum in use.
DL reserves the right, without prior notice, to change a username that, in DL’s sole discretion, is considered obscene, indecent, abusive, or which might otherwise subject DL to public embarrassment or scorn. DL further reserves the right, without prior notice, to delete posts from and deny access to DL’s sites.
Unauthorized access to DL’s Site will breach this Agreement and must be considered a violation of the law. User agrees not to access DL’s Site by any means other than the interface provided by DL and not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor or copy any part of DL’s Site except as approved in advance and in writing by DL.
Use of DL’s Site is subject to existing laws and due legal process. Nothing contained in this Agreement will limit DL’s right to comply with governmental, court and law enforcement requests or requirements relating to User’s use of DL’s Site.
10.2. Reseller Provisions
In addition to the terms and conditions stated elsewhere in this Agreement, the following provisions apply to all Buyers who resell or intend to resell, whether now or in the future, Assets purchased from DL.
10.2.1. No Exclusivity. Buyer accepts that the sale of Assets by or through DL is non-exclusive. DL may sell the same type of Assets from other Sellers to other Buyers. Buyer further accepts that DL provides no guarantee of a minimum quantity, quality, percentage of product mix or continuous flow of such Assets. Buyer acknowledges that DL is not required to sell Merchandise or Inventory to Buyer.
10.2.2. Disclaimers. EXCEPT AS OTHERWISE STATED HEREIN, DL MAKES NO WARRANTY OF ANY KIND AND SPECIFICALLY DISCLAIMS ANY WARRANY, EXPRESS OR IMPLIED, AS TO THE ASSETS SOLD HEREUNDER, OR THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTY, ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, IS PROVIDED BY DL. NOR WILL ANY WARRANTY ARISE BY OR IN CONNECTION WITH THIS AGREEMENT AND/OR DL’S CONDUCT IN RELATION HERETO. IN NO EVENT SHALL DL BE LIABLE ON ANY WARRANTY, FOR ANY ASSET/S SOLD ON THE DL SITE. Buyer accepts that all Assets listed on the Site are sold “as is.” Unless DL agrees otherwise in writing, title and risk of loss will pass to Buyer upon pickup at the origination point (F.O.B. origin). Buyer, upon pickup of Asset/s, releases DL of any fault, and forfeits any rights, associated with the Asset/s or the shipment thereof.
10.2.3. Insurance. Buyer will keep in full force and effect at all times during the applicability of this Agreement with DL the following minimum coverages:
(a) Worker’s compensation and employer liability coverage as required by law; and
(b) Commercial general liability insurance coverage, including insurance against assumed or contractual liability, with a combined single limit of two million U.S. dollars ($2,000,000.00) per occurrence and a limit of one million U.S. dollars ($1,000,000.00) per occurrence for excess insurance, insuring Buyer’s activities pursuant to this Agreement. Such insurance shall be primary, non-contributory and non-excess coverage, except as stated, and shall name DL, its affiliates and subsidiaries among the additional insured. Such insurance shall not be cancelable without at least thirty (30) days prior written notice to DL. Buyer will provide a certificate of insurance evidencing such coverage at least seven (7) days prior to the commencement of its activities conducted pursuant to this Agreement.
10.2.4. Resale Facilities. Buyer agrees to notify DL of any retail facility from which Asset/s purchased hereunder will be resold within a five (5) mile radius of a DL partner as of the date of execution of this Agreement. DL reserves the right to deny sales through this facility or to determine its suitability to the liquidation program.
10.2.5. Inspection of Buyer Facilities and Audit. Buyer agrees to permit DL and/or its designated agent to conduct scheduled and/or unscheduled and unannounced inspections of Buyer’s resale and defacing facilities during normal business hours to ensure compliance with this Agreement and other requirements regarding the purchase of Assets which may be imposed by Seller, such as exportation, delabeling, defacing, etc. Buyer further agrees that DL, or a third party named by DL, will have the right to audit and inspect any and all records of Buyer related to the disposition of Assets purchased hereunder at any time during, and for a period of ninety (90) days after, the applicability of this Agreement. It is further agreed that DL, or a third party named thereby, will have the right to audit or inspect Buyer’s records and books at any time, given a notice of ten (10) days in regard to the disposition of the Asset/s purchased hereunder so long as this expense is paid by DL.
10.2.6. Covenant Not to Compete. Buyer agrees, during the applicability of this Agreement and for a period of not less than one hundred and eighty (180) days from the expiration or termination thereof, not to purchase or solicit to purchase any liquidation or salvage merchandise or assets directly from any of DL’s vendors/suppliers.
10.2.7. Conflicting Terms. If any term or condition stated in this Section 10.2 conflicts with any other applicable provision of this Agreement, the terms stated in this Section 10.2 shall control and take precedence over such conflicting provisions. I UNDERSTAND THAT BY PARTICIPATING IN A DIRECTLIQUIDATION.COM AUCTION OR DIRECT SALE THAT I AM BOUND AND I AGREE TO BE BOUND BY THIS AGREEMENT.
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