Auction Aid, L.L.C. Terms & Conditions
1. Services. By signing this Agreement You authorize Auction Aid, L.L.C. (“Auction Aid”) to (i) receive and store the goods listed on this reverse side of this page (collectively, the “Goods”) and such other Goods delivered to Auction Aid for sale on eBay from time to time after the Effective Date of this Agreement and which is accept by Auction Aid to facilitate for sale on eBay for the benefit of You, (ii) list, offer and sell the Goods on eBay, (iii) establish the minimum bid price or reserve price for the Goods, (iv) deliver the Goods to the buyer, if any, and (iv) collect the sales price from the buyer, deduct Auction Aid’s sales fee and costs and forward the balance of the sales price to You in accordance with this Agreement.
2. Binding Bids. You agree to completethe transaction with the highest bidder of the Goods upon the listing’s completion, unless the buyer fails to pay for the Goods.
3. Unsold Goods. If the Goods fail to sell after being listed on eBay, You authorize Auction Aid to dispose of such unsold Goods (‘Unsold Goods”) as You indicate in this Agreement. You agree to pick up Unsold Goods within ten (10) business days after receipt of notification that Unsold Goods have failed to sell. You agree that if You do not pick up Unsold Goods within that time, Auction Aid may deliver the Unsold Goods to You at Your expense or otherwise dispose of the Unsold Goods as Auction Aid deems appropriate, in its sole and absolute discretion.
4. Payment to Seller. As consideration for the Services, You agree that Auction Aid is entitled to collect a sales fee (“Sales Fee”) based on the sales price for the Goods (“Sales Price”) as follows: thirty percent (30%) of the first $100 of the Goods’ sales price plus twenty five percent (25%) of the next $900 of the sales price plus fifteen percent (15%) of the sales price of the next $1,000 or more, plus any eBay and PayPal charges incurredin connection with this Agreement. Any and all shipping and handling and insurance related costs charged to the buyer by Auction Aid shall be retained by Auction Aid. Following Auction Aid’s unconditional receipt of the sales price, You authorize Auction Aid to deduct (i) the Sales Fee and Auction Aid’s costs from the monies it receives and (ii) such amounts Auction Aid is otherwise permitted to set-off or be reimbursed for under this Agreement, and then forward to You the balance of the collected Sales Priceat the address listed in this Agreement within thirty (30) days from the date Auction Aid unconditionally receives the Sales Price.
5. Bailment Relationship. The relationship between You and Auction Aid is that of bailor and bailee in which You, as bailor, deposit the Goods with Auction Aid, as bailee, for the purpose of listing and selling the Goods to third parties through eBay on Your behalf. Nothing herein creates any agency, partnership, or other form of joint enterprise between us.
6. Title and Risk of Loss. You will retain title to the Goods until the shipper chosen by Auction Aid, in its sole discretion, delivers them to buyer. Upon delivery, title passes directly from You to buyer. Title never passes to Auction Aid. You retain the sole responsibility for any loss or damage to the Goods for any reason, including criminal acts, until buyer obtains title. You accept the responsibility for insurance coverage and agree that a loss or damage may nullify a sale.
7. Warranty of Goods. You warrant to Auction Aid and to the buyers that (i) You either lawfully own without any liens or encumbrances or have all the necessary rights and authorization, without any conditions, to produce and distribute the Goods and to permit Auction Aid to offer, sell and deliver the Goods to any third party pursuant to this Agreement, (ii) the Goods and the rights granted under this Agreement do not infringe the proprietary rights of any third party, (iii) the description of the Goods is truthful, accurate and complete, (iv) the Goods are not stolen or being unlawfully provided to Auction Aid. You also represent and warrant the description of the Goods and the Goods themselves, will not be: false, inaccurate or misleading; fraudulent or involve the sale of counterfeit or stolen item; Violate any law, statute, ordinance or regulation (including, but no limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); defamatory, take libelous, unlawfully threatening or unlawfully harassing; obscene or contain child pornography or otherwise adult in nature or harmful to minors. You agree that Auction Aid is relying on Your representations and that Auction Aid’s reliance is reasonable.
8. Breach. Without limiting any other remedies that Auction Aid is entitled to seek, Auction Aid, may refuse to list or immediately remove any Goods listed on eBay for You, temporarily suspend, indefinitely suspend or terminate our Services, withhold any amounts due You under this Agreement, and refuse to provide future Services to You for an reason, including but not limited to, Auction Aid believes, in its sole and absolute discretion, that (i) You breached this Agreement, (ii) Auction Aid is unable to verify or authenticate any information You provide to Auction Aid,(iii) Auction Aid believes that Your actions may cause financial loss or legal liability for Auction Aid or Auction Aid users or buyers, or (iv) Auction Aid suspects that You have engaged in fraudulent or illegal activity in connection with Goods, Auction Aid or eBay. Your failure to comply with any Auction Aid request for any information or documentation constitutes a breach of this Agreement.
9. Indemnity. You agree to indemnify, defend and hold Auction Aid and (as applicable) Auction Aid’s parent, subsidiaries, affiliates, officers, directors, shareholders, agent and employees, harmless from any claim, loss or demand, known or unknown, foreseeable or unforeseeable, including reasonable attorney’s fees, made by any third party against Auction Aid in connection with, related to or in any way arising out of this Agreement, except for losses caused solely by Auction Aid’s gross negligence or willful acts. If You do not retain competent counsel within 30 days after being notified by Auction Aid of a claim made against Auction Aid, Auction Aid may retain counsel of its choosing at Your expense.
10. Warrantee Disclaimer. AUCTION AID PROVIDES ITS SERVICES “AS IS ” AND WITHOUT ANY WARRANTY OR REPRESENTATION AS TO THE SERVICES, EXPRESS, IMPLIED OR STATUTORY. WHERE ALLOWABLE BY LAW, AUCTION AID SPECIFICALLY DISCLAIMS ANY IMPLED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
11. Waiver of Consequential Damages. IN NO EVENT WILL AUCTION AID BE LIABLE TO YOU FOR ANY INCIDENTAL CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT OR ITS TERMINATION REGARDLESS OF THE FORM OF ACTION (INCLUDING NEGLIGENCE AND STRICT PRODUCT LLABILITY) AND IRRESPECTIVE OF WHETHER AUCTION AID HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
12. Liability Cap. You agree that Auction Aid’s maximum liability for any reason, and those others acting by, through, for or under Auction Aid’s direction, to the lesser of (i) estimated value of the Good as determined by comparable eBay auctions or (ii) $100.
13. Release. You forever release Auction Aid, and anyone acting by, through, for and under Auction Aid’s direction and eBay from any and all losses, claims, demands and damages (actual and consequential) of every kind and nature, known and unknown suspected and unsuspected disclosed and undisclosed, arising out of resulting from or in any way connected with the Services. YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTION OF THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”
14. Term. The term begins on the Effective Date of this Agreement. Unless terminated earlier in accordance with this Agreement, it will continue until Auction Aid either sells and delivers all Goods accepted for listing, returns Goods or Unsold Goods to You, or disposes of Unsold Goods in accordance with Section 3. This Agreement may be terminated by Auction Aid without notice, for any reason or no reason, at any time. You may also terminate this Agreement for breach by Auction Aid, and such breach is not cured within fifteen (15) days of receipt of written notice of default from You.
15. Survival of Certain Terms. The following Sections will survive the termination of this Agreement for any reason: Reverse Page, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16. All other rights and obligations of the parties will cease upon termination of this Agreement.
16. Arbitration and Actions. You agree that any dispute between us will be heard only by binding arbitration in accordance with the Rules of the American Arbitration Association in lieu of a court or jury trial and that the arbitration will be held exclusively in Los Angeles County, California, and heard and decided by three (3) arbitrators. Notwithstanding the preceding sentence, You consent to any action of injunctive relief or other equitable claim being brought by Auction Aid to be exclusively decided in the appropriate California court located in Los Angeles County. The prevailing party shall be entitled to recovery of its reasonable attorneys’ fees and legal costs as awarded by the arbitrators or court, as applicable.
17. General. This Agreement is governed by California law regardless of whether this agreement is executed by any party in any other state. All notices or requests must be in writing and must be sent by certified mail (return receipt requested) facsimile, or recognized commercial courier. Notices are deemed received upon written conformation of facsimile transmission, or signature for receipt of delivery or refusal if sent by courier or by mail. Notices will be sent only to the address listed in this Agreement, unless otherwise noticed in writing by the respective party. Either party’s failure to require performance by the other of any provision hereof will not affect the full right to require performance in the future,nor will waiver by either of us of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision ofthis Agreement is unenforceable or invalid under any applicable law or by applicable court decision, such enforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions will be changed or interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. This Agreement and the Exhibits hereto, constitute the entire agreement between us with respect to the subject matter hereof. This Agreement supersedes all prior discussions and agreements, oral and written, between the parties hereto as to the subject matter herein. Your signature on the reverse sidewas given voluntarily and with full knowledge and understanding of the terms listed on this side.
Auction Aid, L.L.C.