Magellan GPS Auctions Terms of Purchase
MiTAC Digital Corp., dba Magellan (“Seller”) Terms of Purchase applies to all purchase transactions on the on-line auction site (Private Marketplace) located at magellangps.bstock.com, (the, “Site”) through which merchandise may be purchased pursuant to the terms and conditions herein.
- Agreement. This Terms of Purchase (“Agreement”) governs (i) the purchase by you (“Buyer”) of merchandise made available by Seller (“Merchandise”), in its sole discretion and (ii). is made by and between Seller and Buyer. The Merchandise is subject to availability, and will be sold and purchased at the price specified in the bid accepted through the Site and upon the terms herein. SELLER SPECIFICALLY OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS BY BUYER IN ACKNOWLEDGING OR ACCEPTING THIS BID, and no purchase order or other documentation issued by Buyer will alter this Agreement. By checking “I agree to the Terms of Purchase” box and clicking on the “I Accept” icon each time you log into the Site, you accept and agree to be bound this Agreement.
- Price, Payment and Delivery. Merchandise will be sold in accordance with the auction process set forth on the Site. All sales are final. No return or refunds are allowed. Merchandise sold is subject to up to 5% quantity variance per order. Buyer must notify Seller in writing of any merchandise that is delivered with a above and beyond the 5% order variance. Buyer shall have no recourse for discrepancies below 5% variance or for discrepancies not noticed pursuant to this Section 2 within the 7-day period. If Seller agrees that an under-delivery has occurred, Seller will reimburse Buyer for any acknowledged orders in excess of the stated 5% quantity variance. The form of such reimbursement shall be at Seller’s sole discretion. This shall be Buyer’s sole recourse for any under-delivery. Buyer shall be responsible for payment of the purchase price, shipping, storage and handling costs, all applicable taxes and any other expenses incurred in connection with its purchases. Merchandise is sold on an as-is, where-is basis, carriage terms F.O.B. Seller’s distribution center. Risk of loss and title shall pass to Buyer upon delivery to Buyer’s carrier. Buyer will be solely responsible for all costs of transportation and insurance from Seller’s distribution center.
- Acceptance and Shipment of Merchandise. If your bid is deemed the winning bid at the end of an auction for merchandise, you agree to promptly purchase and immediately arrange for shipment of the merchandise. You will be contacted within 5 days after payment of the purchase price to schedule for the delivery of the merchandise. Buyer shall provide carrier information and all other requested information to facilitate prompt delivery of merchandise. Buyer will be responsible for all shipping costs related to the delivery of merchandise. If Buyer fails to take receipt of merchandise within three (3) days of a completed purchase of the merchandise, Seller may choose to keep the merchandise and relist such merchandise on the Site, and refund to you the purchase price less (i) a storage fee of 10% of the purchase price per day held at Seller’s distribution center and (ii) a restocking fee of $300.
- Cancelled Bids and Purchase. There may be certain bids and purchases that Seller is unable to accept and must cancel. SELLER RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO REFUSE OR CANCEL ANY BID OR PURCHASE FOR ANY REASON AT ANY TIME. In the event that bids for Merchandise are incorrectly listed or are listed with incorrect information due to an error in quantity or other product information, Seller shall have the right, at its sole discretion, to refuse or cancel any purchases placed for such Merchandise. In the event that a bid or purchase is cancelled, Buyer will be notified of such cancellation.
- Other Conditions. Buyer represents warrants and guarantees that it will not resell merchandise in any territory not approved by Seller agreement. Buyer agrees that a breach of this Section 6 may result in termination of Buyer’s access to the Site for purchase of the merchandise. Buyer further acknowledges and agrees that such a breach may result in immediate irreparable harm to Seller. Seller will not be liable for any non-performance or delay in performance caused solely by a strike, lockout, riot, war, insurrection, act of God or public enemy and Seller will have the right to terminate this Agreement without any liability to Buyer.
- Indemnity. Buyer shall indemnify and hold Seller and B-Stock and their respective subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim, demand, action, losses and/or costs, including reasonable attorneys' fees, due to or arising out of (i) Buyer’s use of the Site, (ii) any breach of laws applicable to Buyer under this Agreement (ii) any sale, use or handling of the Merchandise or (iii) any breach of this Agreement. The indemnity obligation under this Section 8 shall survive each purchase transaction hereunder.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MERCHANDISE ARE PROVIDED TO BUYER "AS IS", “WITH ALL FAULTS” AND "WHERE IS" AND SELLER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE MERCHANDISE OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION THE MERCHANDISE’S CONDITION OR QUALITY OR THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
- Limitation of Liability. YOU ACKNOWLEDGE THAT YOUR USE USE OF THE SITE IS AT YOUR SOLE RISK. SELLER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, OR LOSS OF GOODWILL, CUSTOMERS OR PROFITS, ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE MERCHANDISE AT ISSUE. SELLER SHALL NOT BE HELD LIABLE FOR ANY ERROR IN A LISTING THAT SELLER CORRECTS PRIOR TO THE PURCHASE OF THE MERCHANDISE TO WHICH THAT LISTING APPLIES. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE EACH PURCHASE TRANSACTION AND ANY TERMINATION OF THIS AGREEMENT. Some states do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties. Therefore some of the limitations set forth in this section may not apply to you.
- General Provisions.
- Force Majeure. Seller shall not be liable in any circumstances for failure to perform under this Agreement where such failure is due to a cause beyond such party’s reasonable control.
- Confidentiality. Any information disclosed by Seller to Buyer shall be held by Buyer in confidence and not disclosed, and Buyer shall ensure that such information is not disclosed to a third party in any manner except with the prior written consent of Seller.
- Entire Agreement; No Waiver. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof, and supersedes any other prior understanding of the parties, whether written or oral. No amendment, alteration or waiver of this Agreement shall be effective unless made in writing and signed by both parties.
- Governing Law. Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California, United States, without regard to its conflicts of law principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties shall attempt to resolve any disputes arising under this Agreement in good faith. Seller and Buyer expressly agree to submit to the jurisdiction and venue of the state and federal courts in the County of Los Angeles, California for all disputes arising out of this Agreement.
- Construction and Severability. In the event any portion of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect and such provision shall be replaced with a valid and enforceable provision with an effect as close as possible to the invalid or unenforceable provision. As used in this Agreement, the terms “include” and its correlative terms shall be deemed to be terms of example and not limitation.
- Injunctive Relief. Seller shall have the right to enforce the terms and conditions of this Agreement by equitable relief where applicable, including injunctive relief and specific performance, without the necessity of posting a bond.
- Assignment. Buyer shall have no right to assign or transfer all or any portion of this Agreement by operation of law or otherwise (including by merger, acquisition, consolidation or sale of all or substantially all assets of Buyer).
- Export Control. Buyer agrees not to export from anywhere any part of the Merchandise, including related software, provided to Buyer or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.
- Government End Users. If the Merchandise is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, Buyer shall contact Seller at the Seller address set forth below for a copy of the additional terms and conditions governing such Buyer’s use.