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Auction - Terms and Conditions
ELECTRONICS MERCHANDISE LIQUIDATION AGREEMENT Recitals: WHEREAS, Circuit City desires to sell to Purchaser, and Purchaser desires to purchase from Circuit City, electronics merchandise which has been returned to Circuit City by its customers or has been removed by Circuit City from its retail store inventory (the "Merchandise"). Agreement: NOW, THEREFORE, for and in consideration of the premises herein contained and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Sale and Purchase. Circuit City shall sell and Purchaser shall purchase the Merchandise as more particularly set forth in an invoice provided by Circuit City to Purchaser substantially in the form of Exhibit A attached hereto and made a part hereof ("Invoice"). Purchaser acknowledges and agrees that any purchase of Circuit City Merchandise is on a non-exclusive basis and subject to availability. Purchaser acknowledges that Circuit City is not required to sell Merchandise to Purchaser and that Purchaser is not required to buy Merchandise from Circuit City. It is the intention of the parties that this Agreement and the relevant Invoices shall constitute a single agreement governing the purchase of Merchandise. 2. Merchandise Purchase Procedure. Circuit City will submit Merchandise for sale via a request for bid ("Bid Request") delivered to Purchaser by electronic mail, fax, regular mail or other method. The Bid Request shall include (i) an itemized list of the Merchandise, (ii) the price of the Merchandise, (iii) the Circuit City premises at which the Merchandise is located, and (iv) such other terms and conditions of sale as may be required by Circuit City. Purchaser shall respond to a Bid Request as soon as practicable. Responses to the Bid Request shall be strictly in accordance with the terms and conditions of the Bid Request, unless otherwise specifically agreed in writing by an authorized representative of Circuit City. Circuit City shall notify Purchaser that its bid had been accepted by delivery of an Invoice for the Merchandise. All terms and conditions contained in the Bid Request shall be incorporated in the Invoice and shall govern the purchase of the Merchandise relating to such Invoice, unless otherwise provided by Circuit City. Within forty-eight (48) hours after Circuit City's delivery of the Invoice, Purchaser shall arrange for payment to Circuit City and for receipt of the Merchandise at the Circuit City facility identified on the Invoice. 3. Delivery and Removal of Merchandise. The Merchandise shall be made available to Purchaser for receipt during normal business hours at the Circuit City facility identified in the Invoice relating to such Merchandise. Purchaser shall be solely responsible for removal of the Merchandise from Circuit City's premises and for all shipping arrangements (including, without limitation, permits and licenses), expenses and labor. Purchaser's employees, equipment, and property, and that of Purchaser's agents, enter and remain on Circuit City's premises entirely at Purchaser's risk as regards any and all hazards excepting only those found to be caused by Circuit City's sole negligence. While on Circuit City's premises, Purchaser's employees and agents must observe Circuit City's rules and regulations. 4. Title; Risk of Loss. Title to the Merchandise shall remain with Circuit City until Purchaser takes possession of the Merchandise at Circuit City's location identified on the Invoice. Purchaser expressly acknowledges that risk of loss and liability for the Merchandise shall pass to Purchaser upon Purchaser's or its agent's receipt of the Merchandise at Circuit City's premises. Purchaser or its agent shall have the right to inspect the Merchandise prior to accepting possession to ensure compliance with the terms of the Invoice. Purchaser expressly acknowledges and agrees that it shall have no right to refuse or return the Merchandise after accepting possession of the Merchandise at Circuit City's premises. 5. Warranties. Circuit City warrants that it has good and marketable title to the Merchandise. CIRCUIT CITY MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND ANY IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE. PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE MERCHANDISE IS SOLD BY CIRCUIT CITY AND PURCHASED BY PURCHASER "WHERE IS," "AS IS" AND "WITH ALL FAULTS." 6. Right to Resale. Purchaser shall unilaterally establish its own prices and terms with respect to the resale of the Merchandise, and Circuit City shall not in any way interfere with Purchaser's pricing and sales terms. However, as a condition to the sale of Merchandise hereunder to Purchaser, Purchaser hereby agrees: (i) to remove or make otherwise permanently illegible any Circuit City identification marks, including without limitation tags, labels, SKU numbers, and bar codes, from all Merchandise purchased hereunder prior to any resale; (ii) not to resell any Merchandise identifying same as Circuit City goods or products; (iii) to remove or delete all Circuit City customer information, including without limitation sales receipts, addresses, phone numbers and credit card numbers, that may be included with the Merchandise; (iv) in the event that some of the Merchandise is comprised of computers or other products which capture personal data, to delete all files and other information contained within the central processing unit, except for the standard software programs or chips originally installed by the manufacturer of the Merchandise; and (v) in the event that some of the Merchandise is comprised of cellular phones or other phone products which capture personal data such as phone numbers, to delete all such phone numbers, files and other information contained within the processing unit, except for the standard software programs or chips originally installed by the manufacturer of the Merchandise. Further, Purchaser will not advise its purchasers that the Merchandise can be returned to a Circuit City store. In no event shall Purchaser advertise the Merchandise for resale using the Circuit City name or other reference to Circuit City. In the event of a violation of any of the representations and warranties contained in this Section 6, in addition to all other remedies Circuit City may have at law, in equity or under this Agreement, Purchaser agrees to pay Circuit City the sum of Ten Thousand Dollars ($10,000.00) per incident as liquidated damages, and not as a penalty. The terms of this Section 6 shall survive the termination of this Agreement for any reason whatsoever. 7. Indemnification. a. Purchaser agrees to indemnify and hold Circuit City, its employees, agents and affiliates, harmless from any and all claims of any kind or nature, including but not limited to all claims, demands, judgments, orders, decrees, awards, costs, and expenses including attorneys' fees and claims on account of damage to property, personal injury or actions of any kind or nature arising from (i) any sale, resale, use or handling of Circuit City Merchandise; or (ii) Purchaser's performance or non-performance or breach of this Agreement. b. Circuit City agrees to indemnify and hold Purchaser, its employees, agents and affiliates, harmless from any and all claims of any kind or nature, including but not limited to all claims, demands, judgments, orders, decrees, awards, costs and expenses, including attorneys' fees and claims on account of damage to property, personal injury or actions of any kind or nature arising from Circuit City's performance or non-performance or breach of this Agreement. THE LIMIT OF CIRCUIT CITY'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS TRANSACTION WHETHER IN CONTRACT, TORT OR STRICT LIABILITY SHALL BE THE INVOICE PRICE OF THE PARTICULAR SHIPMENT OUT OF WHICH THE CLAIM ARISES AND IN NO EVENT SHALL CIRCUIT CITY BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. c. The terms of this Section 7 shall survive the termination of this Agreement for any reason whatsoever. 8. Term and Termination. a. The term of this Agreement shall commence on the Effective Date and shall continue in effect until terminated as provided herein. b. This Agreement may be terminated with or without cause by either party without liability or obligation upon not less than sixty (60) days notice to the other party. c. Either party may terminate this Agreement immediately, without liability or further obligation, upon notice to the other party if the other party (i) breaches any term of this Agreement and fails to cure such breach within ten (10) business days following receipt of notice of such breach, (ii) becomes insolvent, files (or has filed against it) a petition in bankruptcy, makes an assignment for the benefit of creditors or ceases normal business operations, or (iii) assigns or attempts to assign this Agreement or any of the rights and obligations hereunder without first obtaining consent as required herein. 9. Compliance with Laws. Circuit City and Purchaser shall comply with all applicable federal, state and local laws and regulations in performing their respective obligations hereunder. Further, to the extent applicable Purchaser shall comply, and shall ensure that its agents and representatives comply, with all applicable laws and regulations relating to shipping of products for transit outside of the United States, including without limitation all applicable customs laws and regulations. Purchaser shall be solely responsible for any taxes, duties or other payments due with regard to compliance with such applicable laws. 10. Force Majeure. Neither party shall be liable to the other party for failure or delay in performance hereunder due in whole or in part to an act of God, strike, lockout or other labor dispute, civil commotion, sabotage, fire, flood, explosion, acts of any government, unforeseen shortages or unavailability of fuel, power, transportation, or supplies, and any other causes which are not within such party's reasonable control, whether or not of the kind specifically enumerated above. In such event and at the option of the other party, the period of performance for such party may be extended for a period of time equal to the interruption or delay. 11. Confidentiality. a. During the course of performance of this Agreement, a party and/or its affiliates (the "Disclosing Party") may share with the other party (the "Receiving Party") certain documents and information, including, but not limited to, information pertaining to products, business practices, schedules, services, methods, data, processes, and operating procedures which the Disclosing Party considers to be, and treats as, confidential ("Confidential Information"), whether or not specifically identified as such. The Receiving Party shall maintain the Disclosing Party's Confidential Information, in confidence, shall protect it with the same degree of care which it uses to protect its own Confidential Information (which shall be not less than reasonable care), shall not disclose it to any third party and shall use it for the sole purpose of performing under this Agreement. At the conclusion of the Agreement, the Receiving Party shall either return the Disclosing Party's Confidential Information in its possession (including all copies) or shall, at the Disclosing Party's direction, destroy the Receiving Party's Confidential Information (including all copies) and certify its destruction to the Disclosing Party. For purposes of this paragraph, the term "Confidential Information" shall not include any information which: (a) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the Receiving Party; (b) the Receiving Party can demonstrate was already in its possession prior to disclosure hereunder or is subsequently disclosed to the Receiving Party with no obligation of confidentiality by a third party having the right to disclose it; or (c) is independently developed by the receiving party without reference to the Disclosing Party's Confidential Information, provided that the Receiving Party can clearly demonstrate such independent development through contemporaneous records showing such development. The Receiving Party may disclose the Disclosing Party's Confidential Information upon the order of any court of competent jurisdiction or as otherwise required by law or legal process, provided that prior to such disclosure the Receiving Party shall inform the Disclosing Party of such order if permitted by law, in order to provide the Disclosing Party with an opportunity to contest such order or to seek such other protective action as the Disclosing Party may elect. Neither party shall issue any press release regarding this Agreement or otherwise disclose the relationship of the parties hereunder without the other party's prior written approval. In the event of a violation of the terms of this Section 11, because of the unique nature of the Confidential Information, the Disclosing Party would suffer irreparable harm, and money damages and other remedies at law available in the event of a breach or a threatened breach would not be adequate to compensate for the harm caused by the breach or the threatened breach. Accordingly, in addition to any other remedies it may have hereunder or at law or in equity, the Disclosing Party shall have the right to obtain injunctive relief for violation of the terms of this Section 11. b. The terms of this Section 11 shall survive the termination of this Agreement for any reason whatsoever. 12. Entire Agreement. This Agreement shall be a complete and exclusive statement of the terms of the agreement between the parties. Upon acceptance, it will supersede all prior agreements, written or oral. No course of prior dealing between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. 13. Authority of Circuit City's Agents. No agent, employee or representative of Circuit City has any authority to bind Circuit City to any representation or warranty concerning the Merchandise and, unless any representation or warranty made by an agent, employee or representative is specifically included within this Agreement, it is not part of the basis of the agreement and shall not be enforceable against Circuit City. 14. Modifications. This Agreement can be modified or rescinded only by a writing signed by both parties or their duly authorized agents. 15. Assignment. This Agreement may not be assigned by either party without the written consent of the other. 16. Binding Effect. This Agreement is binding on the parties hereto and their respective successors and permitted assigns. 17. Severability. Should any provision of this Agreement be held to be void, invalid or illegal by a court of competent jurisdiction, the validity and enforceability of the other provisions shall not be affected thereby. 18. Independent Contractor. It is specifically agreed and understood that Purchaser is an independent contractor and not an agent of Circuit City. 19. Applicable Law. This Agreement is made in and intended to be performed in and enforced in accordance with the laws of the Commonwealth of Virginia, United States of America, without regard to its conflict of laws rules. Any dispute arising hereunder shall be adjudicated in a court of competent jurisdiction located in the Commonwealth of Virginia, United States of America. 20. Waiver. Neither party shall be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by it. No failure to exercise, delay in exercising or course of dealing with respect to any right, power, privilege or remedy shall operate as a waiver thereof by either party or of any other right, power, privilege or remedy. No exercise or partial exercise of any right, power, privilege or remedy shall preclude any other or further exercise thereof by either party or the exercise of any other right, power, privilege or remedy by such party. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate, each to have the full force and effect of an original, by their duly authorized representatives all as of the Effective Date. BY SELECTING THE "I ACCEPT THE AGREEMENT" BUTTON AT THE BOTTOM OF THIS SCREEN, YOU ACCEPT AND AGREE TO ABIDE BY THE TERMS AND CONDITIONS OF THE AGREEMENT. PLEASE PRINT A COPY FOR YOUR RECORDS.
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