USER AND PURCHASE AGREEMENT
This User and Purchase Agreement (the "Agreement") applies to companies desiring to place a bid on the website www.techliquidators.ca (hereinafter, such merchant shall be referred to as "you"). The products listed on the website www.techliquidators.ca (the "Site") may include product from Best Buy Canada Ltd. ("Techliquidator Product") as well as product from third party sellers ("Third Party Product"). Techliquidator Product and Third Party Product will be collectively referred to as "Listed Products". With respect to Third Party Product, it is the objective of Best Buy Canada Ltd. to provide access to services, including an online marketplace, so that third party sellers that use the Site ("Third Party Sellers") can locate interested buyers.
You must accept and agree to this Agreement before placing a bid. This Agreement applies to the bidding process and to any purchase of Listed Products if you are awarded those Listed Products. This Agreement applies to you as of the date you accept this Agreement and on a going-forward basis every time you use the Site or purchase Listed Products on the Site. THE SUBMISSION OF A BID CONSTITUTES AN IRREVOCABLE OFFER TO PURCHASE THE LISTED PRODUCT YOU BID ON, WHICH WE MAY ACCEPT OR REJECT IN OUR SOLE DISCRETION, ON THE TERMS AND CONDITIONS OF THE LISTING AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT AND ITS TERMS AND CONDITIONS APPLY EACH TIME YOU PLACE A BID OR PURCHASE LISTED PRODUCTS FROM THE SITE.
1. Purchase of Listed Products. "Listed Products" as used herein means the Listed Products set forth in the final electronic bid made by Buyer and accepted by BBCL (the "Bid"). You acknowledge and agree that by placing a bid for Listed Products, you agree to pay to BBCL the price you bid (the "Purchase Price") for the Listed Products, plus any applicable Canadian sales taxes (GST/HST; QST; PST), if you are awarded the Listed Products. If you are awarded the Listed Products, you will receive a notification email from us (the "Notification Email") notifying you of your winning bid. You agree that you will pay the entire amount of the Purchase Price (plus the applicable Canadian sales taxes) by wire transfer within three (3) days of your receipt of the Notification Email.
You agree that the wire transfer payment is non-refundable. In the event that we do not receive the required wire payment from you, BBCL, at its sole option and discretion, may terminate the sale of the Listed Products and/or this Agreement by giving written notice to you, which may be by email. Upon such notice, you shall not have any right, title or interest in or to the Listed Products, and the Listed Products may be marketed and sold to someone else without any liability on BBCL's part and without BBCL having to refund to you any prior payments made by you.
If the Listed Products are not made available to you for shipment within fourteen (14) days following BBCL's receipt of your payment in full for the Listed Products, then you may, at your sole discretion, cancel this Agreement and your obligation to purchase the Listed Products by written notice to BBCL. Such termination shall be effective upon BBCL's receipt of written notice to cancel. BBCL shall return any payment made by you for the unavailable Listed Products under this Agreement within five (5) business days following receipt by BBCL of the written notice to cancel without any further liability on BBCL's part.
2. Export of Listed Products. The exportation from Canada of the Listed Products may be prohibited or restricted by the export control laws of Canada. Accordingly, no exportation of the Salvaged Products from Canada will be permitted except with the express written consent of BBCL. Buyer acknowledges that the Salvaged Products may be subject to export controls imposed by Canadian laws and regulations, which may prohibit or restrict the exportation and re-exportation of the Salvaged Products. Buyer will comply with all applicable export control laws of Canada in effect from time to time, including without limitation the Canadian Export and Import Permits Act and the Canadian United Nations Act, and will not export any Salvaged Products or any direct product thereof in violation of any such restrictions, laws or regulations except in compliance with all licenses and approvals required under applicable export laws and regulations, including without limitation those of the Canadian Department of Foreign Affairs and International Trade.
3. Receipt of Listed Products.
- Options. Payment for the Listed Products is required as set forth above prior to any shipment or delivery. You are required to make arrangements for any shipment or pick up of the Listed Product based on the options available for a particular listing on the Site. Either or both of the following options may be available for a listing, as determined by BBCL in its sole discretion: (a) the option to have BBCL ship the Listed Products; or (b) the option to pick up the Listed Product at the seller's facility. The 'Ship by BBCL' option includes rates based on the origin and destination of the Listed Product and you agree that you are responsible to provide accurate information and to pay any applicable shipping rates (plus any Canadian sales taxes applicable thereon) when using this option.
- Appointment for Pick Up. Assuming the option to pick up the Listed Product is available, you will receive an email that provides instructions on how to schedule an appointment to pick up the Listed Product at the seller's facility ("Scheduling Email"). You will be required to pay BBCL the pick up fee as set forth on the Site and schedule an appointment with BBCL for pick up within seventy-two (72) hours of receiving the Scheduling Email. If you do not schedule an appointment within such time period or fail to pick up your Listed Product at the scheduled appointment, BBCL may decide, in its sole discretion, to (1) arrange to ship the Listed Product to you, assuming the Listed Product meets BBCL's shipping criteria, using a carrier selected by BBCL in its sole discretion, at the physical address you provided in the User Registration and charge you for the shipping, handling, and related charges ("Shipping Charges"); or (2) charge you a fee for BBCL having to process and re-stock the Listed Product ("Non-performance Fee"). The Non-performance Fee will be an amount equal to the greater of (i) twenty-five dollars ($25.00); or (ii) ten percent (10%) of the Purchase Price. You agree that we may charge you such Shipping Charges or Non-Performance Fee without prior notification to you, without waiving any other rights or remedies of BBCL, and that the Shipping Charges or Non-Performance Fee are non-refundable. You also acknowledge that if you are charged a Non-Performance Fee, BBCL will issue you a refund equal to the amount of the Purchase Price less the Non-Performance Fee (Refund = Purchase Price - Non Performance Fee), and BBCL will terminate the sale of such Listed Product and may market and sell such Listed Product to someone else without any liability on BBCL's part.
- Title and Risk of Loss. Title and risk of loss of the Listed Products shall pass to you from BBCL if Techliquidator Product (or, if Third Party Product, from the Third Party Seller to you) upon tender of such Listed Products to you or the carrier at the seller's facility ("Point of Purchase"). Delivery shall be 'Ex Works - Point of Purchase', as defined in the Incoterms 2010 published by the ICC. BBCL (or the Third Party Seller, if applicable) will load the Listed Product. You shall pay all freight charges. Upon pick up of the Listed Product, you shall release BBCL of any fault, and shall forfeit any rights to claims against BBCL associated with the Listed Products or the delivery of the Listed Products purchased by you.
4. Waiver of Detail Receipt. You acknowledge that the number of units of the Listed Products set forth in the listing on the Site is merely an estimate and that the final inventory levels of Listed Product from BBCL, as applicable, may vary from the number of units set forth in the listing. YOU HEREBY WAIVE ANY OPPORTUNITY TO DETAIL THE RECEIPT OF THE LISTED PRODUCTS DUE TO THE TIME, COST AND OTHER CONSIDERATIONS INVOLVED AS WELL AS THE DEEPLY DISCOUNTED PRICING AT WHICH YOU ARE ACQUIRING THE LISTED PRODUCTS. You agree to the following: (a) you assume the risk that you may not receive all of the Listed Products set forth in the listing; (b) you assume the risk that you may receive more Listed Products than set forth in the listing; and (c) you release BBCL from any and all claims, demands, actions and causes of action you may have against BBCL as a result of the discrepancy between the items set forth in the listing and the items you actually receive from BBCL.
5. Limitation of Warranties.
BBCL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LISTED PRODUCTS AND OTHER PRODUCTS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Buyer hereby acknowledges that Buyer used its own standards to determine the quality and value of the Listed Products and, further, that the Listed Products and other products under this Agreement are sold by BBCL and purchased by Buyer "AS IS" and "WITH ALL FAULTS".
Buyer may not return any of the Listed Products to BBCL or Third Party Sellers for refund, exchange or otherwise. In addition, you hereby acknowledge that Third Party Sellers may fail to perform. BBCL does not provide any representations or guarantees that Third Party Sellers will complete a transaction. With respect to Third Party Product, it is expressly understood and agreed that BBCL has no duty to you with regard to transactions through the Site other than those duties expressly outlined in this Agreement. BBCL does not guarantee any individual Third Party Seller's ability to complete transactions using the Site and makes no representation regarding the creditworthiness or performance of any Third Party Seller. You agree not to hold BBCL, its affiliates, officers, directors, employees or agents liable for any loss or damage of any sort incurred as the result of your dealing with any Third Party Seller.
6. Removal of Identification and Information. Buyer agrees to remove from the Listed Products prior to their sale, transfer, or disposal: (a) all BBCL identification marks including, but not limited to, labels, sku numbers and bar codes; (b) all personal information including, but not limited to, sales receipts, addresses, phone numbers, images, files, credit card numbers and other information belonging to customers or otherwise residing on any Listed Products (collectively "Customer Information"), (c) in the event that any of the Listed Products are computers or other consumer electronics containing memory or other storage, Buyer agrees to delete all files and other information contained thereon, except for the standard software programs or chips originally installed by the manufacturer of such Listed Products, provided such standard software programs or chips do not contain Customer Information, and (d) comply with the requirements of the attached and incorporated Exhibit A. Buyer is responsible for expunging Customer Information in a manner which ensures that it cannot be recovered. Buyer agrees to indemnify and hold BBCL harmless from and against any third party claims, demands, actions, fines or causes of action arising out of or in connection with Buyer's subsequent resale or disposal of the Listed Products. Buyer agrees to comply with all provincial, federal and local rules and regulations, including without limitation all applicable electronic waste legislation and regulations, with respect to the disposal of the Listed Products. This paragraph will survive the termination or expiration of this Agreement.
7. Indemnification. Buyer will indemnify, defend and hold BBCL harmless from and against any and all claims, demands, causes of action, actions, fines, costs, liabilities, and expenses, of any nature, (including, but not limited to court costs, costs of investigation, and attorneys fees) arising out of or in connection with the following: (a) any sale or resale of the Listed Products, (b) any misrepresentation or breach of this Agreement, (c) damage or injury to persons or property, including but not limited to the Listed Products and other items delivered to the freight carrier or in the possession of Buyer or at storage facilities following Buyer's failure to remove under Paragraph 5, (d) the loss, theft or destruction, whether partial or whole, of the Listed Products and other items, whether delivered to the freight carrier or in the possession of Buyer or at storage facilities following Buyer's failure to remove under Paragraph 5; (e) the reconditioning, refurbishing, resale, sale, or repackaging of the Listed Products and other items under this Agreement; (f) the labeling, advertising or notices placed on the packaging or elsewhere or the lack of notices which should have been placed on the packaging; (g) inaccurate descriptions of the contents of the Listed Products, other items, and the package; (h) the performance or nonperformance of Buyer's obligations under this Agreement, including but not limited to the obligations set forth within Paragraph 2; (i) your dispute with a Third Party Seller or another user of the Site; (j) the failure to delete and remove all information (including Customer Information) or items contained in or on the Listed Products and other items delivered to the freight carrier or sold under this Agreement to Buyer; and (k) any actual or alleged act of commission or omission by 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, representatives and independent contractors. This Paragraph will survive the termination or expiration of this Agreement.
8. Inspection/Audit. Buyer agrees that BBCL's authorized representatives reserve the rights to visit Buyer's warehouse or place of business any time in order to monitor compliance with the terms of this agreement.
9. Limitation of Liability.
THE ENTIRE RISK ARISING OUT OF ANY PRODUCTS OR SERVICES OFFERED ON OR IN CONNECTION WITH THE SITE, AND ANY CONTENT, USER CONTENT OR DIGITAL DOWNLOADS REMAINS WITH YOU. IN NO EVENT SHALL BBCL OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, CONTENT, USER CONTENT AND/OR DIGITAL DOWNLOADS, THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, USER CONTENT AND CONTENT OBTAINED THROUGH THE SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT OR POSTED ON THE SITE, THE MAXIMUM LIABILITY THAT BBCL SHALL HAVE IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO BBCL BY YOU IN THE IMMEDIATELY PRECEDING THREE (3) MONTHS. YOU ASSUME ALL RISK OF LOSS FOR SHIPPED LISTED PRODUCTS. USER INFORMATION SUCH AS ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE RESPONSIBILITY OF BBCL. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. This provision shall survive the termination or expiration of this Agreement.
10. Confidentiality. Buyer will not use or disclose to any individual or entity, including but not limited to any transferee or subsequent purchaser of the goods, the following: (a) that Buyer purchased or received the goods from BBCL; (b) the terms and conditions of this Agreement nor the nature or result of any business relationship with BBCL; (c) any of BBCL's identification marks as provided under Paragraph 6(a); (d) any BBCL customer information as provided under Paragraph 6(b); (e) under Paragraph 6(c), any files or information contained within the Listed Products; and (f) the terms and conditions of the Agreement. This Paragraph will survive the termination or expiration of this Agreement.
11. Relationship of the Parties. BBCL and Buyer understand and acknowledge that each will perform its duties and obligations under this Agreement as an independent contractor and that this Agreement does not create a joint venture, partnership, employment or agency relationship between them. Buyer understands and acknowledges that it will be solely responsible for all taxes (whether imposed now or at a later date), its and its employees' wages, benefits, unemployment compensation and workers' compensation and all other costs and expenses relating to its employees and applicable to the performance of this Agreement. Buyer represents and warrants to BBCL that it has not paid any consideration or made any payments of any kind to any person or entity, including but not limited to BBCL employees, officers, and directors, to obtain this Agreement or for the purchase of the items being sold under this Agreement. This provision will survive the termination or expiration of this Agreement.
12. Severability. If any provision herein will be deemed or declared unenforceable, invalid or void by a court of competent jurisdiction, the same will not impair any of the other provisions contained herein which will be enforced in accordance with their respective terms.
13. Non-Assignment. Prior to the removal of the Listed Products from BBCL's facility or facilities, Buyer will not delegate, subcontract, assign or transfer any of its rights, duties, or obligations under this Agreement without the prior express written consent of BBCL. In the event that BBCL grants any such consent, Buyer will be solely responsible for the conduct of all agents and assignees of Buyer, and the granting of such consent will in no way modify or affect the duties of Buyer to BBCL under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefits of the parties, and their respective successors and assigns.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, and the laws of Canada applicable in British Columbia, which shall be deemed to be the proper law of this Agreement, without regard to its conflicts of law principles. Any dispute arising from, connected with or relating to this Agreement or any related matters must be resolved before the Courts of British Columbia sitting in the City of Vancouver, and the parties hereby irrevocably submit to the original and exclusive jurisdiction of those Courts in respect of any such dispute or matter. This Section shall not be construed to limit a party's access to injunction or other equitable or mandatory injunctive relief in any other jurisdiction or affect the rights of a party to enforce a judgment or award outside of the Province of British Columbia, including the right to record and enforce a judgment or award in any other jurisdiction.
15. External Network Connectivity Standards & Guidelines. In conducting transactions or issuing related correspondence via the Site, Buyer will comply with BBCL's "External Network Connectivity Standards and Guidelines," and any other applicable BBCL policies or procedures, all of which may be modified from time to time at BBCL's sole discretion.
16. Compliance with Law. In the performance of its obligations under this Agreement, Buyer will comply with all applicable laws, regulations, rules, orders, and other requirements, including all applicable laws and regulations relating to the disposal of electronic waste, now or hereafter in effect, of governmental authorities having jurisdiction and any international laws or conventions, including but not limited to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal that apply to Canada or to which Canada is a signatory.
17. Warranty of Authority. Each party represents and warrants to the other that it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the requisite power and authority to execute and deliver, and to perform its obligations under, this Agreement. Each party represents and warrants to the other that this Agreement has been duly authorized, executed and delivered by such party and constitutes a valid and binding obligation of such party enforceable against such party according to its terms.
18. Notices. All notices, demands and other communications that are required or may be given under this Agreement will be in writing and will be deemed to have been duly given if emailed by BBCL or if mailed by either party certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. Notices to you via email will be deemed effective at the time the email is sent. In the case of notices via certified mail or courier service, notices will be deemed effective upon the date of receipt. Notices to you will be addressed to the email or physical address you provided in the User Registration and notices to BBCL must be mailed and addressed to BBCL, Attn: Legal Department, 8800 Glenlyon Parkway, Burnaby, British Columbia, V5C 6R7, unless either party notifies the other of a change of address or email address, in which case the latest noticed address or email address will be used. If BBCL receives a message that your email address is no longer valid or that the email communication could not be delivered, notice shall be deemed to have been provided to you at the time BBCL received notice of non-delivery.
19. No Price Collusion. You represent and warrant that (1) the overall purchase price offered by you for the Listed Products was arrived at independently without consultation, communication or agreement with any competitor or other potential purchaser or seller of the Listed Products; and (2) no attempt has been made to induce any other person to submit or not to submit a proposal to purchase the Listed Products.
Media/Device Data Sanitization Standards
This Exhibit A is attached to and incorporated within the Agreement.
BBCL has several businesses and capabilities that require the handling of media and/or devices which may contain data. As it relates to these standards, data is defined as any personally identifiable information (e.g., data that can be tied to a specific individual) about a customer or information owned or created by a customer (e.g., photos, videos, movies, documents) and subsequently stored on a product, device or the media contained therein.
This data is valuable to the person to which it belongs and therefore there are inherent risks in handling these units and inadvertently exposing or sharing this information with someone other than the owner of the data.
Prior to transfer, disposal, refurbishing, recycling, resale or any other disposition, all devices capable of data storage and/or storage media of any kind must be subjected by you to a process where the data is removed from the device (or made inaccessible) whereby it is immune to attack and incapable of being recovered by commercially available tool sets ("sanitized").
Without limiting the foregoing, you will use the sanitization methods defined in the following table with respect to each specific device type identified. Variation from the prescribed sanitization method is permitted only upon written approval by BBCL. If you identify a device type that is not included in the table, you will promptly notify BBCL of same so that a sanitization method can be identified and approved prior to handling these devices.
|Device/Media Type||Sanitization Method|
|Mobile Computing (e.g., laptops)||Multi-pass secure data removal.|
|Hard Drives (internal and external)|
|Flash Drives/Memory Cards||Multi-pass secure data removal.|
|Gaming Systems||Pre-approved, manufacturer-established procedures for secure data removal (e.g., restoring unit to factory default state); or, if such procedures are unavailable, a secure data removal of the internal data storage device followed by the loading of the appropriate software applications.|
|Digital Cameras||Removable media must be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by [YOUR NAME], a sign will be created that reads "[YOUR NAME]-Tested" so purchaser does not mistake picture for another person's data.|
|Camcorders||Removable media must be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by [YOUR NAME], a sign will be created that reads "[YOUR NAME]-Tested" so purchaser does not mistake picture for another person's data.|
|Phones/PDA/PDEDs||Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. SIM cards, where applicable, must be removed from the device and physically destroyed. Data contained within the device's internal memory - including, but not limited to, phone logs, pictures, text messages, SMS messages, personal applications, phonebooks, calendars, tasks, and so forth - must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|
|MP3 Players||Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory - including, but not limited to music, album art, pictures, and so forth - must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the device contains an internal hard drive - a low-level secure wipe followed by the loading of the devices appropriate software shall be deemed acceptable.|
|Digital Picture Viewers||Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|
|DVRs (Digital Video Recorders)||Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|