Site Terms and Conditions Agreement

These TERMS AND CONDITIONS (this "Agreement" or these "Terms and Conditions"), together with Surplus Marketplace Privacy Policy and any Auctioneer's Terms and/or Seller's Terms (as such terms are defined herein), govern your access and use of www.surplusmarketplace.com (the "Site" or "Website"), operated by Surplus Marketplace LLC. (collectively with its affiliates and subsidiaries, "Surplus Marketplace", "we", "our" or "us"), and the services set forth therein, including but not limited to listing, selling or purchasing items for auction, liquidation, or sale (the "Services"). These Terms and Conditions are in addition to the terms and conditions of any other agreement you may have with Surplus Marketplace for products, services or otherwise. In the event of a conflict between these Terms and Conditions and any such other agreement, the other agreement will control. You, the User (also referred to as "Bidder" or "Buyer"), must read and agree to this Agreement before using the site. If you do not agree to this Agreement, you may not use the site.

Limited License

Subject to your compliance with these Terms and Conditions, Surplus Marketplace grants you a non-exclusive, non-transferable, revocable license to use our website.

Account Registration

By accepting these Terms and Conditions and or registering an account with Surplus Marketplace you represent and warrant that you are at least eighteen (18) years of age and that you meet all other requirements contained in these Terms and Conditions. You further represent and warrant that you

have the right, authority, and capacity to enter into this Agreement and will abide by all of the terms set forth herein (and if you are accepting these Terms and Conditions on behalf of any entity, you represent and warrant that such entity will be responsible for your violation of these Terms and Conditions);
will not register for more than one account;
will not provide false or misleading information about yourself;
will not create any username or post any information that is offensive, rude, disparaging to other Surplus Marketplace users;
will maintain the security of your password and accept all risks of authorized and unauthorized access to your account and the information you provide to us;
will not violate the intellectual property or privacy rights of any third party.

User accounts are non-transferable. Only you may use your user account. You agree to be liable for all activities that are undertaken using your user account, including any activities that are offensive, unlawful or in violation of these Terms and Conditions. You hereby acknowledge that you will not be permitted to participate in any auctions, liquidations, or sales on the site until Surplus Marketplace verifies your user account. Surplus Marketplace verifies your account by collecting contact information (including, but not limited to, legal company name, street address, employer identification number, and, if applicable, auctioneers' license numbers and states) and credit card information from you, transmitting such information to our third party payment processor (Stripe) via encrypted secure servers. We reserve the right to request additional information from you to verify your account. We may disallow any Buyers or Seller’s from using the site or registering a user account in our sole discretion for any reason or for no reason. To register as a Buyer on the site, you must provide your name, phone number, email address, credit card payment information, and, if applicable, the name and address of the business on behalf of which you are acting. By registering, the user represents and warrants that it is authorized to act on behalf of the stated business and that all identifying and contact details are true and accurate.

Account Termination

Surplus Marketplace may, in our sole discretion, temporarily or permanently terminate your user account, and/or deny you access to the Site, if we determine or suspect, in our sole discretion, that you have violated these Terms and Conditions, any laws, rules or regulations, or the rights of our other users or other third parties.

AUCTION BIDS AND TRANSFER OF TITLE

Surplus Marketplace is not acting as a traditional auctioneer, but an intermediary between Sellers and Buyers offering services to support their purchase and sale transactions, such as advertising, transmitting relevant transaction information, and facilitating payment.

All bids are legal and binding. Each auction constitutes an offer by the Seller of that item for the purchase of that item. By bidding on an item, you are making a commitment to buy the item from the Seller listing the item in the event you place the winning bid. If your bid is the winning bid or otherwise is accepted by the Seller, you thereby enter into a legally binding contract with the Seller and are obligated to purchase the item for the stated amount.
Your bids placed through Surplus Marketplace are binding towards the Seller and cannot be retracted. We want everyone to get a good deal and most will. However, when you bid on the wrong item or decide an item is not suited for your intended use, our Sellers will not assume the cost of your mistakes. You agree that your failure to inspect or otherwise become fully informed about the items offered for sale in each auction will not be grounds for a refusal to pay amounts due, nor for any claim against the Auctioneer or Seller.
Voiding Bids. Surplus Marketplace and the Seller reserves the right to reject or void bids, whether winning or not, which it believes
1. have not been made in good faith,
2. are intended to manipulate the listing process,
3. result from application or system errors or outages,
4. are prohibited by any applicable law or regulation.

We do not transfer legal ownership of items from the Seller to the Buyer. Unless otherwise agreed by the Seller and the Buyer, applicable Texas law, including without limitation Texas Business and Commerce Code § 2.401, and Uniform Commercial Code § 2-401 apply to the transfer of ownership between the Seller and the Buyer.

Payment

When a Bidder wins an item, they will receive an invoice to their account. Payment must be made within 72 hours of invoice receipt. You hereby authorize the collection of the outstanding payment of any unpaid invoices by charging the credit card provided. If the credit card is declined, we reserve the right to resell the item to the back-up bidder or another bidder without notice.

Buyer’s Premium

For each piece of equipment purchased from the Seller through Surplus Marketplace, you agree to pay a buyer’s premium. Surplus Marketplace may change or add fees from time to time, in its sole discretion, with or without notice to you. The buyer’s premium percentage will be displayed on the item-listing page of each item. Any other fees that may be payable by the Buyer are detailed on the applicable Marketplace.

Sales tax

Texas sales tax will be charged unless the Buyer has provided a signed Sales Tax Resale Certificate or Exemption Certificate for each auction. Prospective Buyers must email their signed resale form prior to the end of the auction to info@surplusmarketplace.com. NOTE: Texas Law requires the sales tax to be collected on the total price, which includes the buyer’s premium.

Inspection

Bidder acknowledges that Surplus Marketplace and Seller are providing them with the opportunity to inspect the items being offered for sale in each auction. We strongly encourage bidders to attend the scheduled inspection. If you choose not to inspect the item and are in doubt of item condition, completeness or suitability, please bid accordingly. Failure to inspect the items does not relieve Bidder of responsibility of payment and removal as stated in these terms.

Removal

All equipment must be removed from the auction by hour and date stated on the invoice for each auction. All removal is at the complete risk and expense of the Bidder. Neither Surplus Marketplace nor the Seller provides personnel for loading. Merchandise becomes the full responsibility of the Bidder once they are declared the winner of the auction.

Buyer must remove all items in their lot or risk suspension from site. Buyer assumes all responsibility for loss and damage of purchased merchandise. Neither Surplus Marketplace nor the Seller shall be responsible for Buyer's merchandise.

Please Note: Removal deadlines are strictly enforced! Any items not removed by the removal time frame will revert back to Seller’s property, with all right and title to the equipment forfeited and NO REFUNDS GIVEN. Bidding privilege may also be suspended.

It is the Buyer's responsibility to secure all safety equipment and any necessary labor to meet applicable government safety standards in using or removing items purchased. Certain pieces of equipment may contain residual chemicals. You hereby indemnify and hold harmless both Us and the Sellers from any and all damages, claims, or liabilities from any injuries to persons or property caused during the sale, your removal, or your or any other person’s use or operation of the purchased items.

Third-Party Payment Provider

In order to establish bidding privileges on the Site, you understand and agree that Surplus Marketplace, through its third-party payment processor (Stripe), reserves the right, in its sole discretion, to request a zero dollar value authorization check on your credit card as part of verifying your identity. In connection with your purchase, you will be asked to provide customary billing information such as name, billing address, credit card information, or routing and account numbers for payments by electronic funds transfer either to Surplus Marketplace or its third-party payment processor(s).

Charge-Backs Prohibited

As a Bidder, you agree that you will accept all charges placed on the credit card associated with your account, and you agree that you will not charge back any amount that Surplus Marketplace charges to your credit card in relation to any outstanding invoices on your account. You agree that this provision applies equally to amounts charged in connection with any items you have won and any buyer’s premium or applicable sales tax.

Suspension of Bidding Privileges

You understand and agree that any violation of these Terms and Conditions — and/or any unsafe or illegal activity during any auction-related event — may result in Surplus Marketplace suspending your online bidding privileges indefinitely.

Availability of Site

Surplus Marketplace cannot guarantee the continuous or secure operation or our access to the website. Surplus Marketplace servers or communication components and systems or application functionality are subject to outages and delays. Surplus Marketplace or our Sellers will not be held liable for any claims or alleged losses relating to any of the foregoing events.

Missing Items

In the event an item sold on Surplus Marketplace is found to be missing or it is determined that an item or items cannot be legally sold or sold in error, prior to removal, Surplus Marketplace and the Seller’s sole liability shall be the return of any deposit or monies paid on said item/lot. Buyer shall have no further claim whatsoever including, without limitation, direct, indirect, consequential, exemplary or incidental damages.

Postponement and Cancellation.

Surplus Marketplace and the Seller reserve the right to withdraw, postpone or cancel any listing, or any sale that results from a listing, in its own discretion, at any time, with or without notice.

Exportation

Neither Surplus Marketplace nor the Seller prepare any items for shipping or exportation. You are advised to have all such certificates and permits issued and completed prior to transporting the Equipment, otherwise you may be subject to clearing, permit, and/or other payments if the Equipment is stopped and held at a port of entry to a state, province or country. If you are in the United States and plan to export Equipment through U.S. Customs, we, on behalf of Sellers, recommend that you engage the services of a U.S. forwarding agent to prepare documents that are required by U.S. Customs Control. These documents may include a power of attorney that authorizes a forwarding agent to complete the necessary Shipper Export Declaration (SED) and filing the Automated Export System (AES) record. Neither Surplus Marketplace nor the Seller provides equipment invoices or a notarized Bill of Sale to facilitate exports. Surplus Marketplace cannot provide Manufacturing Statements of Origin (MSO's) on used equipment bought on the Marketplaces nor can Surplus Marketplace be held responsible for lack of manufacturers' identifying numbers or engine or serial numbers. You, the Buyer, agree that you are the shipper and the receiver.

Distressed Medical Equipment Purchases by Texas Residents

Distressed medical equipment sold in Texas can only be purchased under the following circumstances: If sold to an individual or entity located in Texas, that individual or entity must be licensed under §229.605(a) of Typography 25 of the Texas Administrative Code as either a Salvage Establishment or Salvage Broker of medical devices.

WARRANTIES

You agree that you are making use of our Websites, services and tools at your own risk, and that they are being made available to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we expressly disclaim all express or implied warranties, terms and conditions including without limitation implied warranties of merchantability, fitness for a particular purposes and non-infringement.

All auction merchandise is sold "AS IS" and "WHERE IS" with all faults. All sales are FINAL. We expressly disclaim all express or implied warranties with respect to such merchandise, including without limitation implied warranties of merchantability, fitness for a particular purposes and non-infringement. A failure or inability to inspect property does not relieve a Bidder of responsibility for payment and removal in accordance with an auction’s stated terms.

Most items offered for sale are used and may contain defects that are not immediately detectable. Although Sellers represent to us that the information and descriptions contained in the item descriptions are believed to be true and correct, we generally do not review such descriptions, and we assume no responsibility for and make no warranties regarding those descriptions. It is your responsibility and obligation to verify information and descriptions of property prior to placing a bid. We make no representation or warranty regarding the applicability of state laws to transfers of real estate or certificated vehicles or equipment, compliance of which is the sole responsibility of the Buyer and the Seller. We do not review auction listings to determine whether such additional terms and conditions may apply; it is your responsibility to determine whether or not you are eligible to purchase or own such items, and what additional terms or conditions may apply to your purchase.

INDEMNITY

You agree to indemnify and hold us, our parent companies, subsidiaries and affiliates and ours and their respective officers, directors, agents, partners and employees 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) and liabilities suffered or incurred directly or indirectly by Surplus Marketplace arising from or related to:

your use of a Website or any related tools or services; or
your breach, non-performance or non-observance of the covenants, obligations, warranties, representations and undertakings on your part contained in these Terms of Use or any other policy applicable to your use of a Website or any related tools or services.

Governing Law and Venue

These Terms and Conditions will be governed by and construed under the laws of the State of Texas.

Any claim or controversy arising out of or relating to these Terms and Conditions, or to any breach thereof, will be resolved exclusively by a state court having jurisdiction in Travis County, Texas, or in the Federal District Court for the Western District of Texas, where federal jurisdiction exists. Each party hereby submits to the jurisdiction and venue of such courts.You agree that all claims instituted by you will be litigated on an individual basis, and will not be consolidated with any claim made by another party.You agree that any judgments awarded may be applied to and collected from you personally or corporately.Should you file an action contrary to this paragraph, the defending parties may recover reasonable legal fees and costs.Further, if you bring a claim against Surplus Marketplace or the Seller and do not prevail, and/or if Surplus Marketplace takes action against you as a result of your violation of these terms and conditions and is the prevailing party, you agree that you will reimburse us for all reasonable legal fees and costs including reasonable attorney’s fees.

California Residents

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

COPYRIGHT INFRINGEMENT AND THE DMCA

We respect the intellectual property rights of others, and we expect our Users to do the same. If you believe that your copyrights or other intellectual property rights have been infringed by material posted by others through the Services, you should provide our agent with the following information:

An electronic or physical signature of a person authorized to act on behalf of the copyright or other intellectual property owner;
Identification of the copyrighted work or other intellectual property that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other intellectual property owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright or other intellectual property owner or are authorized to act on behalf of the owner

The above information must be submitted to the following

Surplus Marketplace
2110 W. Slaughter LaneSuite 107,
#625Austin, Texas 78748

UNDER US FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.