Last Updated: September 20, 2017
USER AND PURCHASE AGREEMENT:
BIDDING ON AND POTENTIAL PURCHASE OF LISTED PRODUCTS
This User and Purchase Agreement (this "Agreement") applies to merchants, either individuals or companies (hereinafter, such merchant shall be referred to as "you" or "User"), desiring to purchase products listed by Best Buy Stores, L.P., d/b/a Techliquidators ("Best Buy" or "we" or "us") on the website www.techliquidators.com (the "Site"). Such products are referred to hereunder as "Listed Products." If you are using this website on behalf of a company that you listed in the User registration process, "you" and "User" throughout the remaining sections of this Agreement refers to the company listed in the User registration and you hereby acknowledge and agree that you are authorized to sign on behalf of the company and hereby bind such company to this Agreement.
THE SUBMISSION OF A BID CONSTITUTES AN IRREVOCABLE OFFER TO PURCHASE THE LISTED PRODUCT YOU BID ON, WHICH MAY BE ACCEPTED OR REJECTED IN BEST BUY'S SOLE DISCRETION, ON THE TERMS AND CONDITIONS OF THE LISTING AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN ADDITION, BEST BUY RESERVES THE RIGHT TO CANCEL, IN ITS SOLE DISCRETION, ANY LISTING OF LISTED PRODUCT WITH OR WITHOUT NOTICE AT ANY TIME WITHOUT AWARDING ANY LISTING PRODUCTS. YOU AGREE THAT THIS AGREEMENT AND ITS TERMS AND CONDITIONS APPLY EACH TIME YOU PLACE A BID OR PURCHASE LISTED PRODUCTS FROM THE SITE.
Purchase of Listed Products.
You acknowledge and agree that by placing a bid on the Site for Listed Products or otherwise contracting to purchase Listed Products, you agree to pay to Best Buy the price you bid/ propose, the applicable shipping charges, and a convenience fee ("Convenience Fee") charged on all purchases and reflected during the purchase process (collectively, the "Purchase Price") for the Listed Products if you are awarded the Listed Products. If you are awarded the Listed Products, you will receive a notification email from us (the "Notification Email") notifying you of your winning bid. To view the current Convenience Fee, please visit www.techliquidators.com/tl/?action=info_about.fees. You will receive a percentage discount off the Purchase Price in an amount equal to the Convenience Fee if payment is made by wire transfer/EFT. Such discount amount will be reflected in the Purchase Price during the purchase process.
If you are awarded the Listed Product and the Purchase Price of your winning bid is less than Twenty Thousand Dollars ($20,000.00) (United States Dollars), we will charge your stored credit card directly for the entire amount of the Purchase Price. Prior to the purchase of any Listed Products, you must provide Best Buy with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the credit card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your credit card. By submitting that information to Best Buy, you hereby agree that you authorize Best Buy to charge your credit card the entire sum of the Purchase Price without prior notification to you, and that the Purchase Price is non-refundable.
Your agreement with your credit card issuer governs your use of your designated card. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. If Best Buy does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Best Buy or its agents.
If the Purchase Price is equal to or in excess of Twenty Thousand Dollars ($20,000.00) (United States Dollars), you agree that you will pay the entire amount of the Purchase Price by wire transfer within three (3) days of your receipt of the Notification Email.
You agree that the credit card charge and the wire transfer payments are non-refundable. In the event that we are not able to charge your credit card the aforementioned amounts for any reason, including declination of the charge, or if we do not receive the required wire payments from you, Best Buy, at its sole option and discretion, may terminate the sale of the Listed Products and/or this Agreement by giving written notice to you, which may be sent by email. Upon such notice, you shall not have any right, title or interest in or to the Listed Products, and the Listed Products may be marketed and sold to someone else without any liability on Best Buy's part and without Best Buy having to refund to you any prior payments made by you.
If the Listed Products are not made available to you for shipment within fourteen (14) days following Best Buy's receipt of your payment in full for the Listed Products, then you may, at your sole discretion, cancel your order and terminate your obligation to purchase the unavailable Listed Products by written notice to Best Buy. Such termination shall be effective upon Best Buy's receipt of written notice to cancel. Best Buy will return any payment made by you for the unavailable Listed Products under this Agreement within five (5) business days following receipt by Best Buy of the written notice to cancel without any further liability on Best Buy's part. In addition, Best Buy reserves the right to cancel the sale of any Listed Products to you, in whole or in part, for any reason, or the unavailability of the Listed Product for any other reason, upon notice to you. Best Buy will return any payment made by you for the cancelled portion of any sale within five (5) business days of providing such cancellation notice to you without any further liability on Best Buy's part.
You must sanitize all purchased Listed Products as required by Exhibit A hereof, attached and incorporated herein, in order to get the Listed Products into re-saleable condition. Listed Product purchased hereunder and sanitized by you may only be re-sold by you if the product passes the sanitization standards set forth in Exhibit A. For those Listed Products which you are not able to sanitize per Exhibit A, you shall destroy those Listed Products in accordance with the provisions set forth in this Agreement and in accordance with any statute, regulation, ordinance, rule, order, decree or governmental requirement enacted, promulgated or imposed by any governmental authority at any level (e.g., municipal, county, province, state or national) or a combination thereof (collectively "Laws" or "laws"), including environmental, at no additional cost to Best Buy.
Receipt of Listed Products.
Payment for the Listed Products is required as set forth above prior to any shipment or delivery. You are required to make arrangements for any shipment or pick up of the Listed Product based on the options available for a particular listing on the Site or your particular sale. Either or both of the following options may be available for a listing, as determined by Best Buy in its sole discretion: (a) the option to ship the Listed Products; or (b) the option to pick up the Listed Product at the seller's facility, and pay the fee for pick up, as set forth on the Site. The ship option includes rates based on the origin and destination of the Listed Product and you agree that you are responsible to provide accurate information and to pay any applicable rates when using this option.
- Appointment for Pick Up.
Assuming the option to pick up the Listed Product is available, you will receive an email that provides instructions on how to schedule an appointment to pick up the Listed Product at the seller's facility ("Scheduling Email"). You will be required to pay the pick up fee as set forth on the Site and schedule an appointment for pick up within seventy-two (72) hours of receiving the Scheduling Email. If you do not schedule an appointment within such time period or fail to pick up your Listed Product at the scheduled appointment, Best Buy may decide, in its sole discretion, to (1) arrange to ship the Listed Product to you, assuming the Listed Product meets Best Buy's shipping criteria, using a carrier selected by Best Buy in its sole discretion, at the physical address you provided in the User registration and charge your credit card for the shipping, handling, and related charges ("Shipping Charges"); or (2) charge your credit card a fee for Best Buy having to process and re-stock the Listed Product ("Non-Performance Fee"). The Non-Performance Fee will be an amount equal to the greater of (i) twenty-five dollars ($25.00); or (ii) ten percent (10%) of the Purchase Price. You agree that we may charge your credit card such Shipping Charges or Non-Performance Fee without prior notification to you, without waiving any other rights or remedies, and that the Shipping Charges or Non-Performance Fee are non-refundable. You also acknowledge that if you are charged a Non-Performance Fee, Best Buy will terminate the sale of such Listed Product to you, credit your card in the amount of the Purchase Price if Best Buy has charged the credit card on file, and may market and sell such Listed Product to someone else without any liability on Best Buy's part. If you paid for the Listed Product by wire transfer rather than credit card, the preceding sentence still applies, except that rather than a credit, Best Buy will issue you a refund equal to the amount of the Purchase Price less the Non-Performance Fee (Refund = Purchase Price – Non-Performance Fee).
- Title and Risk of Loss; Point of Purchase within the United States.
Title and risk of loss of the Listed Products shall pass to you upon tender of such Listed Products to you or the carrier at the seller's facility ("Point of Purchase"). Delivery shall be 'Ex Works - Point of Purchase', as defined in the Incoterms 2010 published by the ICC, unless otherwise mutually agreed in writing. You shall pay all freight charges. Upon pick up of the Listed Product, you shall release Best Buy of any fault, and shall forfeit any rights to claims against Best Buy associated with the Listed Products or the delivery of the Listed Products purchased by you. In all cases the Point of Purchase for Listed Products must be within the United States (all Listed Products must be shipped to you/ delivered or picked up at an address/ location within the United States).
Waiver of Detail Receipt.
You acknowledge that the number of units of the Listed Products set forth in the listing on the Site is merely an estimate and that the final inventory levels of Listed Product may vary from the number of units set forth in the listing. YOU HEREBY WAIVE ANY OPPORTUNITY TO DETAIL THE RECEIPT OF THE LISTED PRODUCTS DUE TO THE TIME, COST AND OTHER CONSIDERATIONS INVOLVED AS WELL AS THE DEEPLY DISCOUNTED PRICING AT WHICH YOU ARE ACQUIRING THE LISTED PRODUCTS. Subject to Section 4 below, you agree to the following: (a) you assume the risk that you may not receive all of the Listed Products set forth in the listing; (b) you assume the risk that you may receive more Listed Products than set forth in the listing; and (c) you release Best Buy from any and all claims, demands, actions and causes of action you may have against Best Buy as a result of the discrepancy between the items set forth in the listing and the items you actually receive.
Notwithstanding the above, in the event that you inadvertently receive a shipment(s) of Listed Product on which you did not bid/ that you did not purchase, you agree to:
- notify Best Buy within 24 hours of receipt of such product by calling (888) 602-6963 AND emailing email@example.com with identifying information from the shipment, including invoice numbers, PRO/tracking numbers, photos, and an itemized list of the product received; and
- make such product available for pickup from your facility no later than 48 hours from receipt, packaged safely for shipment and in the same condition in which it arrived at your location.
Disclaimer of Warranties; No Returns; Missing or Damaged Listed Product.
THE LISTED PRODUCTS AVAILABLE OR SOLD TO YOU THROUGH THIS SITE ARE PROVIDED AND ARE PURCHASED BY YOU ON AN "AS IS" AND "WITH ALL FAULTS" BASIS. BEST BUY UNDERTAKES NO RESPONSIBILITY FOR THE QUALITY OF THE LISTED PRODUCTS. BEST BUY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SITE (INCLUDING ALL CONTENT, FUNCTIONS AND INFORMATION) IS PROVIDED AND ALL LISTED PRODUCTS ARE SOLD THROUGH THE SITE ON AN "AS IS" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You hereby acknowledge that you used your own standards to determine the quality and value of the Listed Products. You acknowledge that the Listed Products may be damaged, defective, or otherwise lacking in merchantability and may not be fit for their usual, otherwise-intended purpose.
YOU MAY NOT RETURN ANY OF THE LISTED PRODUCTS FOR REFUND, CREDIT, EXCHANGE, OR OTHERWISE. If you attempt to avoid payment as a means of returning or rejecting any of the Listed Product, in violation of these terms, by disputing a charge to your credit card, you agree that Best Buy has the unequivocal right to recover our fees and costs from any such unauthorized chargeback. Further, Best Buy may choose to reject any further business from you.
Notwithstanding the foregoing, if you believe that more than ten percent (10%) of the Listed Product is missing or damaged and you would like to discuss your purchase with Best Buy, please contact firstname.lastname@example.org WITHIN 30 DAYS OF THE LISTED PRODUCT INVOICE DATE with all of the following information:
- Photos of each shipment of Listed Product upon arrival;
- Detailed manifest by item providing details of any discrepancies or damage and including a minimum of Auction ID, Lot IDs (if included), MFG Part Numbers, serial numbers, condition (if condition is a part of your requested review), and any other information that would document any discrepancies or damage; and
- Scanned copy of BOL noting all damage and tampering at the time of delivery and delivery receipt stating the number of pallets and cartons received.
For the avoidance of doubt, any tampering, damage or discrepancy, including any missing pallets, cartons and units, must be noted on the manifest. Additionally, for the avoidance of doubt, ALL SUCH INFORMATION MUST BE RECEIVED WITHIN THE 30-DAY TIMELINE SET FORTH ABOVE, and ANY CORRESPONDENCE (INCLUDING ANY CLAIMS) OR SHIPMENT INFORMATION RECEIVED AFTER SUCH PERIOD WILL NOT BE REVIEWED OR ADDRESSED BY BEST BUY.
Best Buy reserves the right to inspect the Listed Product prior to disposition for up to sixty (60) days after a review request is reported to us in accordance with this paragraph (timeline could include 60-day hold from shipping carrier). After Best Buy reviews your request, Best Buy may decide, in its sole discretion, to offer a full or partial credit, return, refund, or exchange, or any combination of the foregoing, in the amount and/or form it deems appropriate. You acknowledge and agree that Best Buy is not obligated to issue any credit, refund or exchange.
This Section 4 shall survive any termination or expiration of this Agreement.
Removal of Identification Information.
Prior to the transfer, disposal, refurbishing, recycling, sale or any other disposition of the Listed Products, you agree:
- to remove from the Listed Products and properly dispose of all Best Buy identification marks including, but not limited to, labels, trademarks, trade names, service marks, SKU numbers and bar codes, other than those identification marks contained on the original packaging that are required by Law ("Identification Marks");
- to remove from the Listed Products and properly dispose of all customer information including, but not limited to, sales receipts, addresses, phone numbers, and credit card numbers ("Customer Information"); and
- to comply with the requirements of the attached and incorporated Exhibit A.
You agree to comply with all state, federal and local rules and regulations with respect to the disposal of the Identification Marks, the Customer Information, and the deleted files and other information, including, but not limited to, Laws relating to privacy.
You acknowledge that monetary damages may not alone be a sufficient remedy for failure to comply with the requirements of this Section 5 and that Best Buy shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Further, you acknowledge and agree that if there is a breach or threatened breach of the provisions of this Section 5, Best Buy will be irrevocably harmed and entitled to seek a temporary restraining order, injunction, and/or other equitable relief against the commencement or continuance of such breach without the requirement of posting a bond or proving injury as a condition of relief.
In addition, in the event that your performance of obligations under this Section 5 results in the creation of any waste or other material, your handling of that waste or material shall be subject to the requirements of Sections 6 and 7 of this Agreement.
This Section 5 will survive the termination or expiration of this Agreement.
All determinations regarding the status and handling of Listed Products after title has passed to you in accordance with this Agreement shall be the responsibility of, and made by, you. You agree to indemnify, defend, and hold Best Buy harmless from and against any losses, attorneys' fees, costs, liabilities, damages, penalties, third party claims, demands, actions, or causes of action arising out of, or in connection with, your disposal, incineration, or recycling of the Listed Products or components thereof, including, but not limited to, losses, attorneys' fees, costs, liabilities, damages, penalties, claims, demands, actions, or causes of action arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (as amended) (CERCLA); arising under Solid Waste Disposal Act (SWDA) (as amended); arising under any federal or state rule or regulation promulgated or approved pursuant to CERCLA or the Resources Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA); and/or arising under Laws of any jurisdiction relating to the disposal, incineration, stewardship or recycling of Listed Products and components thereof. For the purposes of this indemnification, "disposal," "incineration", and "recycling" shall have the meanings set forth in the statute or regulation under which an indemnification obligation under this paragraph arises or is alleged to arise. This Section 6 shall survive the termination or expiration of this Agreement.
Environmental Representations and Warranties.
You represent and warrant that:
- Prior to disposal, incineration, or recycling of any Listed Product or component(s) thereof, you will complete a hazardous waste determination in accordance with 40 C.F.R. § 262.11 and applicable Laws of all relevant jurisdictions relating to disposal or recycling of the Listed Product or component(s) thereof. In the event that a Listed Product is classified under any such Law as a hazardous waste, and you undertake to recycle or arrange for the recycling of that Listed Product, and if the recycling of that Listed Product is potentially subject to the provisions of 42 U.S.C. § 9627, then you will comply with all requirements of 42 U.S.C. § 9627 necessary to qualify for the liability exemptions provided in that statutory provision.
- You currently comply, and will continue to comply, with all Laws of all relevant jurisdictions, governing the disposal, incineration, or recycling of Listed Products or components thereof.
- You have not been convicted of, or received a citation for, a violation of any Law of any relevant jurisdiction governing the disposal, incineration, or recycling of waste.
For the purposes of these representations and warranties, the terms "disposal", "incineration", and "recycling" shall have the same meaning as defined in Section 6 entitled Environmental Indemnification. This Section 7 shall survive the termination or expiration of this Agreement.
In addition to your other indemnification obligations set forth in this Agreement, you shall further indemnify, defend and hold Best Buy (including its parent and affiliates and their respective officers, directors, employees, contractors, and agents) harmless from and against any and all claims, demands, causes of action, actions, costs, liabilities, and expenses, of any nature, (including, but not limited to court costs, costs of investigation, and attorneys' fees) arising out of or in connection with any actual or alleged: (a) loss, theft or destruction, whether partial or whole, of the Listed Products and other items in the possession or control of you or your agents; (b) the reconditioning, refurbishing, resale, sale, recycling, transfer, disposal, destruction, or repackaging of the Listed Products and other items provided under this Agreement; (c) the labeling, advertising and/or notices placed on the packaging or elsewhere or the lack of notices which should have been placed on the packaging; (d) inaccurate descriptions of the contents of the Listed Products and the package; (e) breach of this Agreement (including but not limited to warranties and representations) by you or your officers, directors, employees, agents or representatives; (f) failure to delete and remove all information or items contained in or on the Listed Products and other items tendered to the freight carrier or sold under this Agreement to you, including but not limited to claims arising from the failure to comply with requirements described in Exhibit A; (g) the acts or omissions of you or your officers, directors, employees, agents or representatives; (h) your disposal of the Identification Marks, Customer Information, the hard drive of any computer, deleted files and other information; (i) your dispute with another user of the Site; (j) Best Buy's use or publication of data or information provided by you; (k) violation of any Law by you or your officers, directors, employees, agents or representatives; (l) your use of the Site; and (m) any infringement or misappropriation of any proprietary rights by you. This Section 8 shall survive the termination or expiration of this Agreement.
You agree to permit Best Buy, its parent, subsidiaries or affiliated entities, and its agents (including third parties) the right to visit your warehouse, facility, or place of business at any time in order to monitor compliance with the terms of this Agreement, including but not limited to an unannounced audit of your sanitization processes and inspection of products. Best Buy, its parent, subsidiaries or affiliated entities, or its designated agents, shall have the right to audit your books and records related to this Agreement, evaluate the Listed Products to ensure they are sanitized as required by Exhibit A, and inspect your facilities and procedures at any time to assure compliance with the terms and conditions of this Agreement. You agree to provide Best Buy's designated audit and inspection team with access to the relevant records, facilities, and procedures. Best Buy will pay the cost of any such audit and inspection unless the audit reveals that you are not performing in compliance with the terms of this Agreement, then, in addition to any other legal and equitable remedies available to Best Buy, you will reimburse Best Buy for the costs of the audit and inspection. In addition, if the inspection or audit reveals a condition that is unsatisfactory to Best Buy in its reasonable business judgment, you will bear the costs for any re-inspection and re-audit if desired by Best Buy. The rights set forth in this Section 9 shall survive for a period of seven (7) years following the termination or expiration of this Agreement.
Limitation of Liability.
THE ENTIRE RISK ARISING OUT OF ANY PRODUCTS OR SERVICES OFFERED ON OR IN CONNECTION WITH THE SITE, AND ANY CONTENT, USER CONTENT OR DIGITAL DOWNLOADS REMAINS WITH YOU. IN NO EVENT SHALL BEST BUY OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, CONTENT, USER CONTENT AND/OR DIGITAL DOWNLOADS, THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, USER CONTENT AND CONTENT OBTAINED THROUGH THE SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR POSTED ON THE SITE, THE MAXIMUM LIABILITY THAT BEST BUY SHALL HAVE IS LIMITED TO ANY AMOUNTS ACTUALLY PAID BY YOU FOR THE PURCHASE PRICE OF THE PARTICULAR LISTED PRODUCT AT ISSUE, WHICH FOR CLARIFICATION WILL NOT EQUAL THE AMOUNT OF THE PAYMENT FOR THE ENTIRE LISTING. YOU ASSUME ALL RISK OF LOSS FOR SHIPPED LISTED PRODUCTS. USER INFORMATION SUCH AS ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE RESPONSIBILITY OF BEST BUY. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THIS SECTION 10 SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
You shall not use or disclose to any individual or entity, including but not limited to any transferee or subsequent purchaser of the Listed Products, the following: (a) that you purchased or received the Listed Products from the Site; (b) the nature or result of any business relationship with Best Buy; (c) any of the Identification Marks; (d) any Customer Information; (e) any files or information stored within any of the Listed Products that are computers or other consumer electronics containing memory or other storage; and (f) other information of a nature not generally disclosed by Best Buy to the public. This Section 11 shall survive the termination or expiration of this Agreement.
No Price Collusion.
You represent and warrant that (1) the overall purchase price offered by you for the Listed Products was arrived at independently without consultation, communication or agreement with any competitor or other potential purchaser or seller of the Listed Products; and (2) no attempt has been made to induce any other person to submit or not to submit a proposal to purchase the Listed Products.
Relationship of the Parties.
Best Buy and you understand and acknowledge that each shall perform its duties and obligations under this Agreement as an independent contractor and that this Agreement does not create a joint venture, partnership, employment or agency relationship between you and Best Buy.
You represent and warrant to Best Buy that, other than as specifically set forth in this Agreement, you have not paid any consideration or made any payments of any kind to any person or entity, including but not limited to Best Buy employees, officers, and directors, to obtain this Agreement or for the purchase of the items being sold under this Agreement. This Section 13 shall survive the termination or expiration of this Agreement.
You will pay Best Buy or the applicable governmental entity any applicable value added, sales or use taxes or like taxes that are owed by you solely as a result of entering into this Agreement or which Best Buy is permitted to collect from you under applicable Law. If you provide to Best Buy a valid exemption certificate, Best Buy will not collect the taxes covered by such certificate. Best Buy is not liable for any of the taxes that you are legally obligated to pay as a result of your distribution or resale of product purchased under this Agreement. All such taxes (including without limitation, income taxes, withholding taxes, value added, franchise, gross receipt, sales, use, property or similar taxes, duties, levies, fees, excises or tariffs incurred in connection with or related to the distribution of the Listed Products) will be your financial responsibility. You understand and acknowledge that you will be solely responsible for all taxes, your and your employees' wages, benefits, unemployment compensation and workers' compensation and all other costs and expenses relating to your employees and applicable to the performance of this Agreement, whether imposed now or at a later date.
If Best Buy is audited by a taxing authority or other governmental entity with respect to a tax matter arising from this Agreement, you agree to reasonably cooperate with Best Buy in order to respond to such audit inquiries in an appropriate and timely manner, so that the audit and any resulting controversy may be resolved expeditiously. Notwithstanding anything herein to the contrary, you additionally agree to retain such sales tax records as may reasonably be requested by the taxing authority, and to provide access to such sales tax records to Best Buy in the event of such a request, for the applicable statute of limitations, and upon notice from Best Buy that such statute has been extended, for any extensions thereof.
You shall not delegate, subcontract, assign or transfer any of your rights, duties, or obligations under this Agreement or the right to purchase the Listed Products without the prior express written consent of Best Buy. In the event that Best Buy grants any such consent, you shall be solely responsible for the conduct of such agents and assignees, and the granting of such consent shall in no way modify or affect your duties to Best Buy under this Agreement. Best Buy may assign this Agreement to a parent, a subsidiary or an affiliated entity. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties, and their respective successors and assigns.
This Agreement shall be governed by the laws of the State of Minnesota without regard to its rule of conflicts of laws, and venue shall be within the State of Minnesota. Each party hereby expressly consents to the original and exclusive jurisdiction of the state and federal courts located in Minneapolis, Minnesota. The rights and obligations of the parties under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This Section 16 shall survive the termination or expiration of this Agreement.
Compliance with Law.
You represent and warrant that you will comply with all Laws, including but not limited to export laws as outlined in the Export Administration Regulations (EAR), and the United States Foreign Corrupt Practices Act (FCPA) and all other applicable anti-bribery laws, in connection with this Agreement.
In addition to all other requirements contained in this Agreement, you agree to comply with any additional requirements imposed by a seller's vendors and/or the original manufacturers of the Listed Products.
You agree that all sales are 'Ex Works - Point of Purchase' unless otherwise mutually agreed in writing. Title and risk of loss pass to you, including payment of all transportation and insurance cost, from the Point of Purchase.
You acknowledge that this assurance and this Section 17 will survive termination or expiration of this Agreement.
Best Buy may choose not to award Listed Products to you for any reason, including but not limited to Best Buy's concerns with your ability to comply with Law or otherwise meet the terms and conditions of this Agreement
All notices, demands and other communications that are required or may be given under this Agreement will be in writing and will be deemed to have been duly given if emailed by Best Buy or if mailed by either party certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. Notices to you via email will be deemed effective at the time the email is sent. In the case of notices via certified mail or courier service, notices will be deemed effective upon the date of receipt. Notices to you will be addressed to the email or physical address you provided in the User registration and notices to Best Buy must be mailed and addressed to Best Buy, Attn: Legal Department, 7601 Penn Ave. South, Richfield, MN 55423, unless either party notifies the other of a change of address or email address, in which case the latest noticed address or email address will be used. If Best Buy receives a message that your email address is no longer valid or that the email communication could not be delivered, notice shall be deemed to have been provided to you at the time Best Buy received notice of non-delivery.
You represent and warrant to Best Buy that if you are signing on behalf of a company or entity that will purchase the Listed Products that such company or entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and that you and the company have the requisite power and authority to execute and deliver this Agreement and the requisite power and authority and ability to perform the obligations under this Agreement, including the purchase of the Listed Products. You further represent and warrant that this Agreement has been duly authorized, executed and delivered by you and constitutes a valid and binding obligation of you or the company or entity on whose behalf you are entering into this Agreement enforceable against you or such company or entity according to its terms.
Best Buy shall not be liable or responsible to you, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Best Buy's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) action by any governmental authority; (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns or other industrial disturbances.
Media/Device Data Sanitization Standards - Best Buy
This Exhibit A is attached to and incorporated within the Agreement.
Best Buy has several businesses and capabilities that require the handling of media and/or devices which may contain personally identifiable information. As it relates to these standards, personally identifiable information is data that can be tied to a specific individual about a customer, or information owned or created by a customer (e.g., photos, videos, movies, documents), and subsequently stored on a product, device or the media contained therein.
This data is valuable to the person to which it belongs and therefore there are inherent risks in handling these units and inadvertently exposing or sharing this information with someone other than the owner of the data.
Prior to transfer, disposal, refurbishing, recycling, resale or any other disposition, all devices capable of data storage and/or storage media of any kind must be subjected by you to a process that, using an industry-standard tool which meets or exceeds the requirements outlined in the National Institute of Standards and Technology Special Publication 800-88 rev. 1, Guidelines for Media Sanitization, or any successor version, removes all data from the device or makes such data incapable of being recovered by commercially available tool sets (hereinafter, a "Sanitization Method" whereby such product thereafter is deemed "Sanitized").
Without limiting the foregoing, you will use the Sanitization Methods defined in the following table with respect to each specific device type identified. Variation from the prescribed Sanitization Method is permitted only upon written approval by Best Buy. If you identify a device type that is not included in the table, you will promptly notify Best Buy of same so that a Sanitization Method can be identified and approved prior to handling these devices.
|Device/Media Type||Sanitization Method|
|Mobile Computing (e.g., laptops)||Multi-pass secure data removal.|
|Hard Drives (internal and external)|
|Flash Drives/Memory Cards||Multi-pass secure data removal.|
|Gaming Systems||Pre-approved, manufacturer-established procedures for secure data removal (e.g., restoring unit to factory default state); or, if such procedures are unavailable, a secure data removal of the internal data storage device followed by the loading of the appropriate software applications.|
|Digital Cameras||Removable media must be removed from the device and destroyed using Best Buy pre-approved, procedures for secure data device destruction; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by you, a sign will be created that reads "[YOUR NAME] Tested" so purchaser does not mistake picture for another person's data.|
|Camcorders||Removable media must be removed from the device and destroyed using Best Buy pre-approved procedures for secure data device destruction. Data contained within the device's internal memory must be Sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by you, a sign will be created that reads "[YOUR NAME] Tested" so purchaser does not mistake picture for another person's data.|
|Phones/PDA/PDEDs||Removable media shall be removed from the device and data destroyed using Best Buy pre-approved procedures for secure data device destruction; or, if such procedures are unavailable, multi-pass secure data removal. SIM cards, where applicable, must be removed from the device and physically destroyed. Data contained within the device's internal memory -including, but not limited to, phone logs, pictures, text messages, SMS messages, personal applications, phonebooks, calendars, tasks, and so forth - must be Sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|
|MP3 Players||Removable media shall be removed from the device and destroyed using Best Buy pre-approved procedures for secure data device destruction or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory -including, but not limited to music, album art, pictures, and so forth - must be Sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the device contains an internal hard drive - a low-level secure wipe followed by the loading of the devices appropriate software shall be deemed acceptable.|
|Digital Picture Viewers||Removable media shall be removed from the device and destroyed using Best Buy pre-approved procedures for secure data device destruction; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|
|DVRs (Digital Video Recorders)||Removable media shall be removed from the device and destroyed using Best Buy pre-approved procedures for secure data device destruction; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be Sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.|
|E-Readers||Sanitize data using pre-approved, manufacturer-established procedures for secure data removal.|
|Blu-ray DVD Players||Sanitize data using pre-approved, manufacturer-established procedures for secure data removal.|