Conditions of Sale
USER AGREEMENT TERMS AND CONDITIONS
d.b.a. M@C Discount
Updated August 14, 2018
Welcome to the M@C Discount Auction Site, www.mac.bid, and the M@C Discount Mobile App (Site). These are the Terms and Conditions applicable to all transactions and dealings with ReCommerce412, LLC, M@C Discount Auction Website and M@C Discount Mobile App, collectively “M@C”.
By accessing the Site, utilizing the Services of M@C as Buyer, or by registering as a Buyer regardless of your physical location, you agree that: (1) you have read these Terms and Conditions; (2) you understand these Terms and Conditions; and (3) you are bound by these Terms and Conditions in your use of the Services and the Site. We refer to any person offering to sell goods through the Site as a Seller and any person registering to offer or offering to buy goods as a Buyer regardless of whether sale occurs. We refer to Buyers or Sellers as Users.
The Services provided on the Site enable Users, among other things, to:
- place bids in Auctions;
- make offers on items subject to a Sealed Bid procedure;
- make offers on items subject to a Negotiated Sale.
These Terms and Conditions refer to Online Auctions, Sealed Bids, Negotiated Sales and Exchanges collectively as Selling Events.
These Terms and Conditions, together with
(i) any additional terms and conditions specific to a particular Selling Event, or
(ii) anywhere else on the Site constitute the entire agreement between M@C and the User regarding its subject matter and supersede and replace any and all prior or contemporaneous written or oral agreements between the parties regarding such subject matter and all other conditions whether express or implied at common law or by statute.
2. Use of the Site
- 2.2. Users’ Accounts - Users are assigned an account name and password on registration. Users are responsible for all actions taken under their account name and password and shall only use the Site using their own account name and password. Users must keep their password safe and shall not disclose it to any other person and shall not permit any other person to utilize their account details. Users are required to complete those transactions that occur using their account name and password, whether such transactions are authorized or not.
- 2.3. Exclusion of Users & Rejection or Amendment of Bids & Offers - Without limitation to any other remedies, M@C may exclude any User from any Selling Event and block any registration if the User has breached or threatens to breach these Terms and Conditions or engages in any behavior which M@C in its sole discretion regards as likely to have an adverse effect on the conduct of the Selling Event or the reputation of M@C. Furthermore, M@C reserves the right, in its sole discretion, to exclude products from offers and refuse acceptances, bids or offers, as well as to discontinue Selling Events or its Services altogether at any time or for any reason.
- 2.4. Bidding - By placing a bid in response for Goods in a Selling Event, you are extending an irrevocable offer to purchase the Goods at the price set forth in the bid. Once entered, a bid may not be retracted. Buyer must immediately notify M@C if a mistake is made in bidding; however the Buyer may still be held responsible for the bid. The "Winning Bid" in an Auction is the highest bid entered during the auction that is greater than or equal to the opening bid price. There is no Winning Bid for the auction if no bid is entered at or above the opening bid price. There are no tie bids. If two bids are entered with equal amounts the first bid received by the site is designated the Winning Bid.
- 2.5. Item Inspection – All items will be available for inspection prior to Bidding. All Buyers should inspect items prior to bidding. Failure to inspect an item is not the fault of M@C, and will not be deemed reason for issuing a Refund (see Section 2.10).
- 2.6. Winning Bid - The Buyer that entered the Winning Bid will consummate the purchase of the item within the time specified in the terms and conditions for the Selling Event. Unless stated in the specific terms and conditions for a Selling Event, all Goods will be immediately charged to the User credit card on file. This amount will include the Winning Bid, all Buyer Premiums and Sales Tax, if applicable. Following receipt of payment all risk of loss shall pass to Buyer at that time.
- 2.7. Lot Closing Time - Specific lot closing times are published on the Site. M@C shall not be responsible for notifying any Buyer of a change in any closing date or time. M@C will not accept a bid that is received after the closing date and time for the auction and all dynamic close time extensions. In the event that a higher bid is entered within a designated time period, chosen by M@C, of the scheduled lot closing time, the closing time will automatically be extended, in increments specified by M@C, until no bids have been entered in the pre- stated increment prior to the closing time for the auction. Each Buyer is solely responsible for taking such actions as are appropriate to learn of changes to a closing date or time. The Buyer bears the sole risk of transmitting bids so that such bids are received on the site prior to close of the auction lot.
- 2.8. Item Removal - Buyer is required to pick-up all items purchased by the removal time set forth in the specific Selling Event. All removal shall be at the expense, liability and risk of the Buyer. If the Buyer does not pick-up an item within the removal period for the specific Selling Event, M@C may, at their sole discretion, deem the item to have been abandoned by the Buyer and the Buyer will have no further rights with respect to the item. If items are not removed by the removal deadline, Buyer is liable for all removal and disposal costs associated with disposing of the assets that were not removed.
- 2.9. Shortage or Damage Claims - No shortage or damage claims will be allowed after the Goods have been removed from the premises (see section 2.10). M@C shall not be liable for non-delivery to any Buyer of all or any portion of a lot/item, other than for the return to the Buyer of the corresponding portion of the sum paid on said lot/item. All of the limitations contained in Section 9 below shall apply.
- 2.10. Refunds – All items will be listed for sale with a Condition Code. This Condition Code will dictate the type of Refund, if any, will be considered. The Condition Codes are as follows:
- 2.10.1 Like New - These are items that appear to be in a new condition or have never been used previously. These items are not tested for functionality or completeness -for items that are marked Like New a bidder must examine the item thoroughly when claiming (pick-up) the item. If the item does not appear new or unused or if there is an issue, the bidder MUST report this to M@C prior to leaving the premises. Once the bidder has left the premises with the item, M@C cannot issue any Refund for issues arising with the item. M@C may offer credit on future purchases for all Like New items with discovered defects, not including buyer remorse.
- 2.10.2 Open Box – Open Box items were sold by a retailer, and potentially used before being returned by the customer. Open Box items may be damaged or have an opened box with missing pieces, so unless the condition of a specific item is explicitly stated, you should not make any assumptions about it other than that it may be ripped, scratched, non-functional or otherwise damaged. All Open Box items are sold AS/IS. M@C makes all items available for inspection prior to bidding, it is the responsibility of the Buyer to inspect all items before placing a bid on the Site.
- 2.10.3 Damaged - Items marked "Damage" indicate that they could come from a multitude of circumstances - shelf pulls, overstock, customer returns or any other means. Damaged items could be incomplete and have not be tested for functionality. All Damaged items are sold AS/IS, M@C cannot issue refunds on these items. M@C makes all items available for inspection prior to bidding, it is the responsibility of the Buyer to inspect all items before placing a bid on the Site.
- 2.11. Uniform Commercial Code - Notice is hereby given that all lots offered are with reserve unless otherwise stated, and in some cases Goods are sold subject to Seller’s right of confirmation. In compliance with section 2-328 of the UCC, M@C hereby provides notice that M@C reserves the right to enter bids on behalf of the Seller.
- 2.12. Absentee Bidding - From time to time M@C may place bids on behalf of absentee bidders. When M@C is placing bids on behalf of an absentee bidder, Buyer acknowledges and agrees that M@C shall serve as agent for both seller and buyer in the transaction. M@C shall make every reasonable effort to represent seller and buyer in a balanced and fair manner.
- 2.13. Buyer’s Premium - M@C may, in its discretion, charge a Buyer’s Premium or other service charge on items sold (including any applicable sales or value added tax or similar taxes in the relevant jurisdiction at the current rate). All such charges will be indicated on the specific Selling Event terms and conditions. If charged, the Buyer’s Premium shall be collected directly from each successful Buyer, in addition to the Sales Tax and purchase price as bid.
3. Data Protection & Corporate Information
4. Use of User Information on the Site
To enable the Site to use information provided by all Users, the Users grant M@C on registration a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) license to exercise the copyright, trademark and database rights the User has in any information provided and to do so in any media form whether now known or not currently known in order to provide the Services.
Any price indicated on the Site or agreed to in a Selling Event is stated exclusive of any applicable tax. Buyers in Selling Events shall be responsible for paying any value added, sales, use or other taxes which may be due on amounts owed by the Buyers under these Terms and Conditions in the applicable jurisdictions at the rates prevailing at the date that their contract of sale is concluded.
Each User agrees to indemnify and hold M@C, its subsidiaries and affiliates and Seller and their respective officers, directors, agents, partners and employees (the “M@C Parties”) harmless from and against any and all losses, demands, claims, damages, costs and expenses (including consequential losses or loss of profit, legal costs and expenses, sales and value added taxes or equivalent or similar taxes thereon) and liabilities suffered or incurred directly or indirectly arising from or related to:
the use by the User of the Site or the Services;
the User’s breach or the User causing a breach by any of the M@C Parties of any legislation or law applying anywhere in the world;
any breach of a third party’s rights arising out of or in connection with any of the M@C Parties’ use of any information or intellectual property in anything provided by the User;
any misrepresentation made by the User in connection with these Terms and Conditions, in its registration or otherwise in connection with any Selling Event;
any accident, injury or death howsoever arising, sustained by any person or persons who may attend at any premises for the purpose of a Selling Event, inspection, purchase, collection, removal, pick-up or any other related activity.
any and all claims of any kind and nature related to or arising out of the use of any product sold or purchased, including but not limited to actions or claims for personal injury, death, disability, disfigurement, economic or other loss or damages, direct or indirect or consequential, whether classified as a products liability, warranty or other cause of action, as well as any attorney’s fees incurred.
You hereby release the M@C Parties from any and all claims or actions related to or arising out of a dispute between you and any other User of the Site.
7. Use of the Site & Services
M@C grants a limited, non-transferable license to each User to access and make use of the Site for the purposes of the User using or evaluating the Site and the Services in accordance with these Terms and Conditions but not to download (other than page caching) or modify the Site, or any portion of the Site. This license expressly excludes and prohibits, without limitation: any resale or commercial use of the Site and the Services; modifying, distributing, copying, republishing or making any derivative use of the Site or the Services; any attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the software offered in or under the Site and the Services; the collection and use of other Users’ e-mail addresses or other information or listing, or any data extraction or data mining whatsoever. Notwithstanding the provisions of this clause, the Users shall be entitled to download documents and forms including Notices of Purchasers and/or sales brochures for their own internal use. Users must not use the Site or Services in any way that causes, or is likely to cause, the Site or Services to be interrupted, damaged or impaired.
Users are responsible for procuring and maintaining their network connections and telecommunication links from their systems in order to use the Site and the Services and all communications and content sent from their systems to M@C and must use the Site for lawful purposes only.
Users must not use the Site for any of the following:
for fraudulent purposes, or in connection with a criminal offense or other unlawful activity; to send, use or re-use any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of any law or third party rights; or is otherwise injurious to third parties; objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailing or spam; to offer, sell, bid for or buy any items which are illegal or infringe any third party rights (including intellectual property rights). Users are expressly forbidden from any form of bid manipulation, including collusion or bidding on lots that they themselves or a party affiliated with them are selling in a Selling Event. Buyers may not bid under a false name or as agent for a person or entity which would itself be prohibited by these Terms and Conditions or by the terms and conditions governing the specific Selling Event in question from placing a bid on a particular lot.
M@C may, in its sole discretion, reject a User’s application for any reason and/or terminate a User’s access to the Site at any time for any reason.
M@C shall use commercially reasonable efforts to protect against unauthorized access, but M@C cannot guarantee the security of any information you disclose online and you do so at your own risk. M@C is not responsible for the security of any information transmitted via the Internet or any error or delay in transmitting any information over the Internet, and you assume sole and complete risk for using this Site. By using this Site and providing this data, you consent to the collection of and use of the data in accordance with this Agreement.
M@C does not guarantee continuous, uninterrupted or secure access to the Site. The Site and Services are provided “as is” and “as and when available”, and, to the extent permissible by law, M@C excludes all implied warranties, conditions or other terms, whether implied by statute or otherwise, including without limitation any terms as to skill and care or timeliness of performance. M@C may change, modify, amend, suspend or discontinue any aspect of the Site or the Services at any time without notice and M@C reserves the right to impose restrictions on certain features of the Site or the Services at any time without notice. If a technology malfunction materially affects the outcome of a Selling Event, M@C reserves the right to withdraw the auction within 72 hours following the original Selling Event close time.
Users’ access to the Site may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or Services. M@C will use reasonable endeavors to limit the frequency and duration of any such suspension or restriction.
Users must take all reasonable steps to minimize loss or damages when accessing the Site, including implementing prudent security and back-up features.
In addition to the other obligations set out in these Terms and Conditions, each Buyer acknowledges and agrees that by placing a Bid in a Selling Event, it represents, warrants and undertakes that it has the authority and capacity to enter such Bid or make such offer and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid.
The aggregate liability of M@C and Seller in respect of any other loss or damage suffered by a User and arising out of or in connection with these Terms and Conditions or arising out of or in any way connected with any use of the Services or the sale or purported sale of any Goods on the Site, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the amount received by M@C as compensation under these
Terms and Conditions in connection with the Goods which are the subject of the claim.
8. Proprietary Rights
Users acknowledge and agree that M@C and/or its licensors own all intellectual property rights in the Services. Except as may be expressly stated, Users are not granted any rights to, or in, patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services.
M@C and Seller, their respective affiliates, agents, servants, employees, officers and directors, shall not be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
any loss arising from or in connection with loss of revenue, profits, production, contracts or business or failure to realize anticipated savings or profits;
any loss of goodwill or reputation;
any indirect or consequential losses suffered or incurred by a User;
any accident, injury or death howsoever arising, sustained by any person or persons who may attend at any premises for the purpose of a Selling Event, inspection, purchase, collection, removal, pick-up or any other related activity;
any and all claims of any kind and nature related to or arising out of the use of any product sold or purchased, including but not limited to actions or claims for personal injury, death, disability, disfigurement, economic or other loss or damages, production, direct or indirect or consequential, whether classified as a products liability, warranty or other cause of action; arising out of or in connection with the use of the Site, or the inability to use the Site or the Services, or any other matter under these Terms and Conditions.
These Terms and Conditions may be amended at any time by M@C in its sole discretion. Such amendment will be posted on the Site and will become effective immediately. Users are encouraged periodically to review these Terms and Conditions posted on the Site. Use of the Services and the Site constitutes acceptance of these Terms and Conditions, including any amendments.
Should any single provision of these Terms and Conditions be or become fully or partially invalid, illegal or unenforceable, the remainder of these Terms and Conditions shall continue in full force and effect.
Failure or neglect by M@C to enforce at any time any of the terms hereof will not be construed nor will it be deemed to be a waiver of M@C’s rights hereunder nor in any way affect the validity of the term or any part of these Terms and Conditions nor prejudice M@C’s rights to take subsequent action.
Users shall not without the prior written consent of M@C assign, sub-license or deal in any manner with these Terms and Conditions or any right under these Terms and Conditions.
M@C may, in its sole discretion, terminate these Terms and Conditions with respect to a User (without prejudice to its other rights and remedies) and may deny access to the Services immediately without notice of any breach of these Terms and Conditions by that User and without any liability for M@C except in case of past transactions.
M@C AND SELLER MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ITEMS OR THEIR CONDITION, AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR REPRESENTATIONS. BUYER ACKNOWLEDGES THAT THE ITEMS ARE SOLD “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PATICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. M@C MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SITE, OR THE SUITABILITY, LEGALITY OR ACCURACY OF THE INFORMATION, PRODUCTS AND SERVICES DESCRIBED OR CONTAINED ON THE SITE. THE SITE AND ALL SUCH INFORMATION, PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
IN NO EVENT SHALL M@C OR SELLERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR ANY INFORMATION, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE SITE, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF M@C HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
BUYER HEREBY REPRESENTS AND COVENANTS THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO REVIEW AND INSPECT THE ITEMS PRIOR TO THE SALE AND THAT BUYER HAS SATISFIED ITSELF AS TO THE CONDITION OF THE ITEMS. THE ONLY WARRANTIES, IF ANY, WITH RESPECT TO EACH PRODUCT PURCHASED HEREUNDER ARE SOLELY MADE BY THE ORIGINAL MANUFACTURER THEREOF (AND M@C AND SELLER MAKE NO REPRESENTATION THAT THERE IS ANY SUCH WARRANTY) WITH ALL SUCH LIMITATION AND QUALIFICATIONS AS SUCH MANUFACTURER MAY HAVE IMPLIED ON SUCH WARRANTIES.
M@C relies on information about assets in the auction provided by the Seller and undertakes no investigation of that information. M@C shall not be responsible for the correct description, genuineness, authenticity of, or defect in any lot, and makes no warranty therewith. M@C assumes no responsibility for, and makes no representations or warranties concerning, descriptions of assets contained in marketing materials for Selling Events. Users acknowledge that M@C has not taken title to any Goods offered for sale, has not and will not make any alteration or repair to such Goods, has relied and has a right to rely on Seller’s description and representation as to the condition and function of the Goods.
It is the bidders’ obligation to verify such descriptions prior to bidding. The description of Goods appearing in Selling Events and in advertising prior to Selling Events is believed to be correct; however M@C relies on Sellers for information, depictions and information. Neither those descriptions nor any oral statements made by M@C or Seller shall be construed as a warranty either express or implied. Buyers acknowledge that the Goods are available for inspection prior to Selling Events and M@C strongly encourages Buyers to inspect carefully before bidding. If you want to have a high level of confidence when bidding you MUST inspect for yourself and make decisions based on this inspection. M@C strongly urges you to inspect on the pre-assigned inspection dates that will be posted on the site. There will be no adjustments to the final bid price should you find any problems with the item after the bidding closes (see section 2.10). Buyers rely solely on personal inspection and not on information listed on the site or otherwise provided by M@C. Buyer’s failure to inspect or otherwise determine that the Goods are as Buyer believes shall not be grounds for any claim or action against M@C, nor any excuse for failing to comply with a bid or finalizing a purchase.
13. Force Majeure
M@C will not be liable for any delay or failure to comply with its obligations under these Terms and Conditions if such delay or failure results from circumstances beyond its control.
Any notice given to M@C under these Terms and Conditions shall be in writing and in English and shall be served by hand delivering it or sending it to M@C or to such other address as M@C may specify from time to time. For the avoidance of doubt, notice given by Users to M@C under those Terms and Conditions shall not be validly served if sent by e-mail. Notices to Users by M@C may be sent to the e-mail address provided to M@C during the registration process, receipt of which is deemed to have occurred twenty four (24) hours after an e-mail is sent, or by any other method to any address provided by a User.
15. Choice of Law & Venue
ALL DISPUTES RELATING TO THESE TERMS AND CONDITIONS BETWEEN USERS AND M@C SHALL BE EXCLUSIVELY GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. THE PARTIES AGREE THAT THE STATE AND FEDERAL COURTS SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, USA, SHALL HAVE PROPER AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY PROCEEDINGS ARISING FROM THIS AGREEMENT. EACH USER ACKNOWLEDGES THAT M@C WOULD NOT PERMIT THE USER TO REGISTER AS A BUYER OR PARTICIPATE AS USER IF THE TERMS OF THIS CLAUSE 13 WERE NOT VALID, BINDING AND ENFORCEABLE.
Users irrevocably consent to any process in any legal action or proceedings arising out of or in connection with these Terms and Conditions or its enforceability being served in accordance with the provisions of these Terms and Conditions relating to the service of notices. Nothing contained in these Terms and Conditions shall affect the right to serve process in any other manner permitted by the laws of the country in which service is to be effected.