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1.1 In the Terms of Sale, the following definitions shall apply:
Auction means the process as set forth in section 2 of these Terms of Sale.
Business Day means a day other than a Saturday, Sunday or a public holiday in the country in which the Collection Location is located.
Buyer or you means the entity that purchases Goods from Groupon through the Site under the terms described herein.
Confidential Information means any information in any form or medium obtained by or on behalf of Buyer from or on behalf of Groupon in relation to the Goods or the Terms of Sale which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential whether disclosed or obtained before, on or after the date of the Terms of Sale together with any reproductions of such information or any part of this information.
Collection Location means the Groupon designated collection location from which Buyer shall collect the Goods.
A Complete Purchase occurs when (i) you have provided to Groupon all of the purchase information requested in the Email Notification in the manner specified in such Email Notification to complete your purchase and (ii) the Purchase Price for the Goods has been received in the Groupon account specified in the Email Notification.
Demanufacture means, in accordance with Groupon's specifications, either (a) to remove, if possible, all of the identifying marks, including, but not limited to, Groupon's or its affiliates' names, logos, serial numbers, UPC numbers, RA numbers, and other identifying marks (including without limitation, tags, labels, price stickers, bar codes, or other carton or packaging markings) from the packaging and (b) to clearly and conspicuously mark the packaging so that it is readily apparent and obvious that the Goods have been through a salvage process.
Email Notification means the email you receive from BStock after you place the winning bid on Goods available for sale on the Site. The Email Notification will be sent to the email address you provided when you registered for your account, and shall inter alia contain the bank account payment instructions as well as the Collect Location.
Extended Auction means an Auction where if a bid is entered within the final 10 minutes of the original end time, the Auction will be extended by 10 minutes. If a bid is then placed before the extended 10 minutes elapses, the Auction will be extended again for 10 minutes and the listing will continue to be extended until there are no new bids placed within the final 10 minutes of the auction.
A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
Goods mean Groupon’s Goods that are available for purchase on the Site under the terms described herein.
Listing means the content on the Site associated with particular Goods, including, without limitation, the description a picture (if available) and quantity of the Goods. Groupon shall have the right to modify or correct any Listing at any time and such modification shall be binding on any purchase of any Goods purchased after such modification had been made.
Purchase Price means the purchase price set by the winning bid for Goods in an Auction, excluding VAT.
2. AUCTION PROCESS
2.1 All Goods have been returned by Groupon customers or could not be delivered and have therefore been previously shipped. The condition of the Goods will vary and standard designations regarding a product's condition will be set forth in the Listing. The conditions of the Goods are described to the best of Groupon’s ability. Groupon attempts to be as accurate as possible. However, Groupon does not warrant that Listings are accurate, complete, reliable, current, or error-free and all photos are for illustration purposes only and may not be of the actual item offered for sale. The quantity of actual Goods in each lot may vary of up to 5 percent (5%) less or greater than the number set forth in the Listing and may include up to 5 percent (5%) more damaged items than designated as “damaged” in the Listing. Accessories such as remote controls, cables and instructions may or may not be included.
2.2 Goods will be sold pursuant to the auction process set forth in this Section 2. If you wish to bid on Goods, you will be required to enter your bid amount. In order for your bid to be eligible for the Auction, your bid must be (i) in an amount higher than both the amounts listed as the "opening bid" and the "current bid," as applicable, (ii) in the bid increments set forth on the bid page and (iii) placed before the scheduled end time for such Auction (including any additional time added for an Extended Auction). If your bid is deemed the winning bid, you will receive an Email Notification. It is your responsibility to keep your email address current and to timely check your email to determine if you are the winning bidder for any Auction in which you participated. Groupon is not responsible for the failure of an Email Notification to reach a winning bidder for any reason, including, without limitation, technical problems or other system error.
2.3 If your bid is deemed the winning bid at the end of an Auction for Goods, you agree to promptly purchase such Goods pursuant to the terms and instructions set forth in the Terms of Sale and Email Notification. If you fail to register a Completed Purchase within two (2) Business Days of when the Email Notification is sent to you by BStock, you forfeit any right to purchase such Goods and Groupon may (have) deactivate(d) your account and password so you can no longer access the Site and, Groupon, at its sole discretion, may choose to (i) contact the next highest bidder in the Auction for such Goods and offer to sell such Goods to such bidder at such bidder's bid price or (ii) post such Goods on the Site for sale in a new Auction.
3. PURCHASE PRICE
3.1 In consideration for your payment of the Purchase Price and all applicable taxes, shipping and handling costs and any other expenses incurred in connection with your purchase hereunder, Groupon hereby agrees to sell to you Goods for which you have posted the winning bid and comply with the terms set forth in the Terms of Sale and Email Notification. You agree to pay the Purchase Price and all applicable taxes for the Goods in full by bank transfer within two (2) Business Days after the Email Notification to the Groupon bank account set forth in the Email Notification. The instructions and other conditions set forth in the Email Notification are part of the contract between you and Groupon and thus create enforceable obligations by-and-between Groupon and you.
3.2 Please note that there may be certain bids and purchases that Groupon is unable to accept and must cancel. Groupon reserves the right, at its sole discretion, to refuse or cancel any bid or purchase for any reason at any time. Some situations that may result in your bid or purchase being cancelled include, without limitation, inaccuracies or errors in product or bid information, or problems identified by the Groupon credit and fraud avoidance department. In the event that bids for Goods are incorrectly listed or Goods are listed with incorrect information due to an error in quantity or other product information, Groupon shall have the right, at its sole discretion, to refuse or cancel any purchases placed for such Goods. Employees, family members, and service providers are prohibited from placing bids and making purchases, and Groupon shall reserve the right to cancel any such bids or purchases if discovered. In the event that Groupon must cancel a bid or purchase, Groupon will cancel your bid or purchase and notify you by email of such cancellation.
3.3 Upon acceptance of the Purchase Price and the fulfilment of any other conditions to such sale described herein, Groupon will sell, assign, transfer and convey to you all of Groupon's right, title and interest in and to the Goods and shall make such Goods available for removal by you or your agents in the manner set forth in Section 5 below.
3.4 Groupon shall not be obligated to complete any sale or deliver any Goods to you unless and until you have submitted to Groupon an accurate and complete proof of business registration in a form acceptable to Groupon.
3.5 You shall not sell, lease or otherwise transfer or dispose of any of the Goods, unless you first Demanufacture such Goods. If you receive any such information that may be included with the Goods, you will remove, delete and destroy such information. You shall not under any circumstances (i) identify Groupon, its parent or any of its affiliates as the source of the Goods; (ii) advertise the Goods using any name relating to Groupon, its parent or any affiliates, in any manner; (iii) make reference to Groupon or its parent or any of its affiliates or divisions in any signing or advertising; or (iv) advertise the Goods using any name related to Groupon's suppliers.
4. COLLECTION AND TITLE
4.1 Following the Complete Purchase, Buyer shall collect the Goods from the Collection Location, within three (3) Business Days of receipt of the Email Notification. For the avoidance of doubt, the Goods are delivered EXW incoterms 2010. Unless otherwise stipulated by Groupon in writing, collections will only be accepted between 7:30am to 4:00pm on Business Days.
4.2 You must accept the pallets in complete shrink wrapped condition. You shall be solely responsible for removal of the Goods from the Collect Location and for all shipping arrangements (including, without limitation, permits, costs and licenses), expenses (including, without limitation, insurance) and labor. Your employees, equipment, and property, and that of your agents, enter and remain on the Collect Location entirely at your risk as regards any and all hazards excepting only those found to be caused solely by Groupon’s gross negligence. While on the Collect Location, your employees and agents must observe all rules and regulations of the Collect Location.
4.3 If Groupon fails to provide the Goods for collection, its liability shall be limited to the costs and expenses incurred by Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Groupon shall have no liability for any failure to provide the Goods to the extent that such failure is caused by a Force Majeure Event or Buyer's failure to provide Groupon with adequate instructions that are relevant to the supply of the Goods.
4.4 If you fail to pick up such Goods within three (3) Business Days of receipt of the email that the goods are ready to be picked up, Groupon may choose to keep such Goods, list such Goods for auction on the Site and refund to you the Purchase Price you paid to Groupon less (i) a storage charge of EUR 10 per pallet per each of the days Groupon held the Goods for you after you registered a Completed Purchase and (ii) a restocking fee of ten percent (10%) of the Purchase Price.
4.5 Title to and risk of loss and liability for the Goods shall pass to Buyer as soon as you (or a nominated third party) collects the Goods at the Collect Location.
4.6 Your acceptance of possession of the Goods from Groupon pursuant to Section 4.2 shall constitute an unqualified acceptance of the Goods and a waiver by you of all claims with respect thereto except as set forth in Section 4.7. All sales are final. No returns or refunds are allowed.
4.7 Groupon will generally mark all boxes containing Goods with a summary of contents and quantities contained therein. You shall have five (5) days from the date of removal of Goods from the Collect Location in accordance with Section 4.1 and 4.2 to inspect the shipment for any discrepancies in the stated quantity and report such discrepancy to Groupon in writing. Groupon reserves the right to conduct an additional inspection at its own expense. If Groupon agrees that an under-delivery has occurred above and beyond the stated potential 5 percent (5%) shortage, Groupon will reimburse you for any acknowledged under-delivery above and beyond the stated expected 5 percent (5%) shortage. Such reimbursement may be in the form of an offset against any payments you may owe to Groupon, at Groupon's discretion. Following such five (5) day inspection period, you shall no longer have the right to claim any reimbursement for under-delivery.
Goods are sold as is and final sale. Groupon hereby disclaims all warranties, express or implied, and does not and will not make any warranty whatsoever to Buyer, any subcontractor, any client or Buyer of Buyer, any end-user or otherwise, including, without limitation, any warranty of merchantability or fitness for any particular use or purpose or as to the validity of ownership of any proprietary rights or technology included in the Goods. All other guarantees, warranties, conditions and representations whatsoever, whether arising under any statute, law, commercial usage or otherwise, are hereby expressly excluded and disclaimed.
6. CONFIDENTIALITY AND INTERNATIONAL TRANSFER OF DATA
6.1 Buyer shall keep and procure to be kept secret and confidential the Confidential Information and shall not use nor disclose the same save: (a) for the purposes of the proper performance of its obligations or exercise of its rights under the Terms of Sale; or (b) as otherwise permitted by the Terms of Sale; or (c) with the prior written consent of Groupon.
6.2 Where Buyer discloses Confidential Information to its employee, consultant, subcontractor, supplier, Buyer, agent, professional adviser or insurer, it shall do so subject to obligations equivalent to those set out in this Clause 6. Buyer shall use its best endeavours to ensure that any such employee, consultant, subcontractor, supplier, Buyer, agent, professional adviser or insurer complies with such obligations.
6.3 Buyer shall at all times adopt, retain and keep updated adequate procedures and physical security measures which protect the Confidential Information from inadvertent disclosure or release to unauthorised persons; and hold the Confidential Information in strict confidence and in any event with no less standard of confidentiality than that which it applies to its own confidential information.
6.4 The obligations of confidentiality in this Clause 6 shall not extend to any matter which Buyer can show: (a) is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of the Terms of Sale; or (b) was in its written records prior to receipt; or (c) was independently developed by it; or (d) was independently disclosed to it by a third party entitled to disclose the same.
6.5 If Buyer is required to disclose the Confidential Information under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then Buyer may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give Groupon as much notice thereof as practicable and consult with Groupon and, at Groupon’s request and cost, fully co-operate with and assist Groupon in opposing any such disclosure.
6.6 Buyer agrees that it shall not issue any press release or other public statement relating to its relationship with Groupon or any Terms of Sale without the express prior written consent of Groupon. Buyer further agrees that it shall not, unless legally required to or in strictest confidence to its professional advisors, state either publicly or privately that it purchased the Goods from Groupon or that the Goods were previously owned by Groupon.
6.7 Groupon uses affiliated and unaffiliated service providers to process data received from Buyer, including, without limitation, Groupon International GmbH in Switzerland and Groupon, Inc. in the United States of America, the ultimate Groupon parent company, which is certified under the EU/Swiss-US Safe Harbor Program. Such service providers process personal data only on behalf of and subject to instructions from Groupon under data processing agreements that require adequate data protection measures. Buyer hereby grants its consent to the transmission of its data to these service providers.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Nothing in the Terms of Sale shall limit or exclude Groupon's liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful for Groupon to exclude or restrict liability.
Subject to Clause 7.1, (a) Groupon shall under no circumstances whatever be liable to Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Terms of Sale; and (b) Groupon's total liability to Buyer in respect of all other losses arising under or in connection with the Terms of Sale, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price for the Goods paid by Buyer.
7.2 You shall indemnify and hold Groupon and BStock 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) your use of the Site, (ii) any sale, use or handling of the Goods or (iii) any breach of these Terms of Sale. The indemnity obligation shall survive each purchase transaction hereunder.
8. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Terms of Sale to the extent that such failure or delay is caused by a Force Majeure Event.
9.1 Entire Agreement: The Terms of Sale apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Buyer in whatever form and at whatever time. The Terms of Sale shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties hereto preceding the date of the Terms of Sale and in any way relating to the subject matter of the Terms of Sale. The Terms of Sale constitutes the whole agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether written or oral, express or implied, other than those contained or referred to in the Terms of Sale. Buyer acknowledges that it has not relied on any statement, image, promise, representation, assurance or warranty made or given by or on behalf of Groupon which is not set out in the Terms of Sale.
9.2 Amendments: Groupon reserves the right, from time to time, with or without notice to you, to change these Terms of Sale in its sole and absolute discretion. The most current version of these Terms of Sale can be reviewed by clicking on "Terms of Sale" located at the bottom of the pages of the Site. The most current version of the Terms of Sale will supersede all previous versions. Your use of the Site or continued purchases after changes constitute your notice of, and agreement to be bound by, such changes. No purchase order or other documentation issued by you to Groupon will alter these Terms of Sale unless signed by an authorized Groupon representative.
9.3 Waiver: No failure to exercise, nor delay or omission by any party in exercising any right, power or remedy conferred on it under the Terms of Sale or provided by law shall affect that right or remedy; or operate as a waiver of it nor will any partial exercise by any party of any right or remedy prevent any further exercise of that right or remedy or the exercise of any other right or remedy. A waiver by a party of any right arising through the breach by the other party will not prevent the first party from subsequently requiring compliance with the obligation that has been breached.
9.4 Severance: If any provision of the Terms of Sale is found to be invalid, illegal or unenforceable but would be valid, legal or enforceable if some part of the provision were deleted, the provision in question shall apply with such modifications as may be necessary to make it valid, legal or enforceable.
9.5 Assignment: Buyer may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with the Terms of Sale or any right, benefit or interest under it nor transfer, novate (or subcontract any of that party's obligations under it) without the prior written consent of Groupon.
9.6 Breach of Terms of Sale: If you fail to comply with any term or condition in these Terms of Sale, Groupon may immediately terminate your account, deactivate your password and/or seek any other remedy available to Groupon or its affiliates.
9.7 No Partnership or Agency: Nothing in the Terms of Sale is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
9.8 Rights of Third Parties: No terms of the Terms of Sale shall be enforceable by a party who is not a party to the Terms of Sale, save for Groupon’s ultimate parent company, Groupon Inc, or any subsidiaries (immediate or otherwise) of the same.
9.9 Governing Law and Jurisdiction: These Terms of Sale (and all non-contractual obligations arising out of or connected to it) shall be governed by and construed in accordance with Swiss law. The parties irrevocably agree that the courts of Zurich shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Terms of Sale.