Phobio Terms of Purchase
Last Updated: December 14, 2018
- Acceptance and Modification of Terms of Purchase
- Acceptance of Terms. By checking the “I agree to the Terms of Purchase” box each time you log into the Site, you accept and agree to be bound by these Terms of Purchase. If you do not agree to these Terms of Purchase, you may not bid on or purchase Inventory Products from the Site.
- Modifications to Terms. We reserve the right, from time to time, with or without notice to you, to change these Terms of Purchase in our sole and absolute discretion. The most current version of these Terms of Purchase can be reviewed by clicking on "Terms of Purchase" located at the bottom of the pages of the Site. The most current version of the Terms of Purchase will supersede all previous versions. Therefore, you should review these Terms of Purchase each time you log into the Site. We will indicate the date on which these Terms of Service were last changed at the beginning of these Terms of Purchase.
- Additional Definitions
- “Buyer” or “you” or “your” shall mean the entity that registers or logs into the Site for the purpose of viewing, bidding upon and/or purchasing Inventory Products.
- A “Completed Purchase” occurs when (i) you have provided to Phobio all of the purchase information requested in the Email Notification (defined below) in the manner specified in such Email Notification to complete your purchase and (ii) the Purchase Price for the Inventory Products has been received in the bank account specified in the Email Notification.
- “Extended Auction” shall mean any auction where the auction is extended, one or more times, due to a bid being placed within the final 5 minutes of the auction. Each extension is for a period of 3 minutes.
- “Listing” shall mean the content on the Site associated with particular Inventory Products, including, but not limited to, the description and quantity of the Inventory Products. Phobio shall have the right to modify or correct any Listing at any time and such modification shall be binding on any purchase of any Inventory Products made after such modification.
- “Promotional Content” shall mean any and all information, materials, or content provided or otherwise made available to you by Phobio or its agents in any medium in connection with these Terms of Purchase, including promotional content and Listings displayed on the Site.
- Auction Process
- Inventory Products. Inventory Products consist of customer returns or company stock items, some of which may have been previously shipped. The condition of the Inventory Products will vary and standard designations regarding a product’s condition will be set forth in the Listing. The Inventory Products are provided to you “as is” for purchase on the Site. The quantity and/or value of actual Inventory Products in each lot may vary up to 5 percent (5%) less or greater than the number set forth in the Listing and may include up to 5 percent (5%) quantity and/or value of more damaged items than designated as “Damaged” in the Listing. Accessories such as remote controls, cables and instructions may or may not be included. Inclusion of accessories will be delineated in the Listing.
- Auction Process. Inventory Products will be sold pursuant to the auction process set forth in this Section 3 (the “Auction”). If you wish to bid on Inventory Products, you will be required to enter your bid amount. In order to be eligible for the Auction, your bid must be (i) in an amount higher than the bid listed as the minimum opening bid and the “current winning bid,” as applicable, (ii) in the bid increments set forth on the bid page and (iii) placed before the scheduled closing time for such Auction (including any additional time added for an Extended Auction). If your bid is the highest bid at the conclusion of an Auction (the “Winning Bid”) you will be notified by email (the “Email Notification”) at the email address you provided when you registered for your account (or as subsequently updated by you by following instructions on the Site). The Email Notification will serve as your official proof of purchase and/or official invoice. Any additional formal invoice or proof of purchase outside of the original winning notification is not available. 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. Phobio is not responsible for the failure of an Email Notification to reach a winning bidder for any reason, including, but not limited to, technical problems or other system error.
- Winning Bids. If your bid is deemed the Winning Bid at the end of the Auction for certain Inventory Products, you agree to promptly purchase such Inventory Products pursuant to the terms and instructions set forth in this Terms of Purchase and in the Email Notification. Penalties for failure to make a Completed Purchase for any Auction for which you have the Winning Bid are set forth in Section 4.1 below.
In the event that you do not pay for any given Winning Bid, you may be given the chance to pay a reinstatement fee, in order to prevent the deactivation of your account. The fee amounts are as follows, within any 12-month period:
1st Offense: $0-$10,000 Purchase Price: $100 Fee
1st Offense: $10,000+ Purchase Price: $500 Fee
2nd Offense: $0-$10,000 Purchase Price: $500 Fee
2nd Offense: $10,000+ Purchase Price: $1,000 Fee
3rd Offense: $1,000 Fee
- Deactivation; Cancellation. Phobio reserves the right, in its sole discretion at any time and for any reason, to deactivate your Site account, reject any offer to purchase Inventory Products or suspend or cancel any auction or purchase of Inventory Products, including fulfillment of a purchase after completion of an auction and payment for the Inventory Products. If Phobio cancels any purchase of Inventory Products after you have submitted payment for such Inventory Products, Phobio will direct B-Stock to issue a refund to the designated payment method that you used to make such payment or other method selected by Phobio or B-Stock.
- Conditions to Sale; Payment
- Purchase Price. In consideration for your payment of the Winning Bid amount for an Auction, and any applicable shipping costs, taxes, and fees (the “Purchase Price”), Phobio hereby agrees to sell to you the Inventory Products for such Auction subject to your compliance with the terms set forth in this Terms of Purchase and the Email Notification. You agree to pay the Purchase Price for the Inventory Products by wiring the full amount of the Purchase Price to the bank account set forth in the wiring instructions included in the Winning Bid Email Notification, within 2 business days after end of the Auction. If you fail to register a Completed Purchase, including by failing to pay the Purchase Price, within two (2) business days of when the Email Notification is sent by Phobio, you shall forfeit any right to purchase such Inventory Products and Phobio may deactivate your account and password so you can no longer access the Site and, at its sole discretion, may choose to (i) offer to sell such Inventory Products to the next highest bidder at such bidder’s bid price or (ii) post such Inventory Products on the Site for sale in a new Auction. You shall be responsible for all taxes, shipping costs and any other expenses incurred in connection with your purchase hereunder.
- Canceled Bids and Purchases. We reserve the right, at our sole discretion, to refuse or cancel any bid or purchase for any reason. By way of example, but not limitation, Phobio may cancel your bid or purchase if there are inaccuracies or errors in product or bid information, or problems identified by our credit and fraud avoidance department. While Phobio strives to provide accurate product and bid information, typographical or system errors may occur. In the event that bids for Inventory Products are incorrectly listed or Inventory Products are listed with incorrect information due to an error in quantity or other product information, we shall have the right, at our sole discretion, to refuse or cancel any purchases placed for such Inventory Products. In the event that we must cancel a bid or purchase, we will cancel your bid or purchase and notify you by email of such cancellation.
- Payment Terms. You shall submit the Purchase Price to Phobio under the payment terms set forth in the Email Notification and on the Site. Phobio may revise the payment terms from time to time in its sole and absolute discretion upon notice to you; provided, however, that any change to payment terms will not be effective for any then-pending sale but will only be effective for sales subsequent to such notice. Upon acceptance of the Purchase Price and the fulfillment of all other conditions to the sale, Phobio will sell, assign, transfer and convey to you all of Phobio’s right, title and interests in and to the Inventory Products and shall arrange with you for delivery of such Inventory Products in the manner set forth in Section 5 below.
- Identification of Phobio. You shall not sell, lease or otherwise transfer or dispose of any of the Inventory Products that you purchase, unless you first Demanufacture such Inventory Products. “Demanufacture” means, in accordance with any Phobio’s specifications provided to you, to remove, if possible, all of the identifying marks, including, but not limited to, Phobio’s or its affiliates’ names, logos, serial numbers, UPC numbers, RA numbers, and other identifying marks (including but not limited to tags, labels, price stickers, bar codes, or other carton or packaging markings) from the packaging. Although you should not have access to any Phobio customer information, including without limitation, sales receipts, addresses, phone numbers, credit card numbers or other personally identifiable information, if you receive any such information that may be included with the Inventory Products, you will not use such information and agree to promptly remove, delete, and destroy all such information. You shall not under any circumstances (i) identify Phobio, its parent or any of its affiliates or divisions as the source of the Inventory Products; (ii) advertise the Inventory Products using any name relating to Phobio, its parent or any of its divisions or affiliates, or any of its or their private labels, in any manner; (iii) make reference to Phobio or its parent or any of its affiliates or divisions in any signing or advertising; or (iv) advertise the Inventory Products using any name related to Phobio’s suppliers.
- Shipment and Acceptance of Inventory Products
- Removal and Shipment of Inventory Products. Unless the auction listing or a notification to you specifies different terms regarding the removal and shipment of Inventory Products, the following terms of this Section 5.1 shall apply. The Inventory Products purchased by you shall be made available to you for receipt at the Phobio facility identified in the Email Notification (the “Inventory Location”) at a time mutually agreed to by you and Phobio (the “Pickup Time”). You or your agent must schedule the Pickup Time by contacting Phobio pursuant to the instructions set forth in the Notification Email. You shall be solely responsible for removal of the Inventory Products from Phobio’s premises and for all shipping arrangements (including, without limitation, permits, costs and licenses), expenses (including, but not limited to, insurance) and labor. Your employees, equipment, and property, and that of your agents, enter and remain on Phobio's premises entirely at your risk as regards any and all hazards excepting only those found to be caused by Phobio’s sole negligence. While on Phobio's premises, your employees and agents must observe all of Phobio's rules and regulations. You shall remove all Inventory Products from the Inventory Location within three (3) business days of receiving notice from Phobio that the Inventory Products are ready for pick-up. If you fail to remove such Inventory Products within this time, Phobio, in its sole discretion, may choose to keep such Inventory Products, list such Inventory Products for auction on the Site and refund to you the Purchase Price you paid to Phobio less (i) a storage charge of $10 per pallet per each of the days Phobio held the Inventory Products for you after you registered a Completed Purchase and (ii) a restocking fee of twenty percent (20%) of the Purchase Price.
- Title; Risk of Loss. Title to the Inventory Products shall remain with Phobio until you or your agent take possession of the Inventory Products at the Inventory Location. You expressly acknowledge that risk of loss and liability for the Inventory Products shall pass to you upon your or your agent's receipt of the Inventory Products at the Inventory Location. Without limiting the foregoing, you release B-Stock of any liability and waive all claims against B-Stock with respect to such Inventory Products. You or your agent shall have the right to count the number of pallets containing the Inventory Products to confirm the quantity of pallets matches the shipping manifest prior to accepting possession. You expressly acknowledge and agree that you shall have no right to refuse or return the Inventory Products after accepting possession of the Inventory Products at the Inventory Location.
- Acceptance. Your acceptance of possession of the Inventory Products from Phobio pursuant to Section 5.2 shall constitute an unqualified acceptance of the Inventory Products and a waiver by you of all claims with respect thereto except as set forth in Section 5.4. All sales are final.
- Inspection. You shall have five (5) business days from the date of delivery of Inventory Products to inspect the shipment for any discrepancies in the quantity/quality delivered and report such discrepancy to Phobio in writing. Buyer must provide a detailed manifest, identifying each item that is missing or damaged, and, if damaged, the exact nature of such damage, as well as any supporting images or other documentation. Phobio reserves the right to conduct an additional inspection at its own expense. If Phobio, acting reasonably and in good faith, agrees that an under delivery and/or damage has occurred greater than 5%, based on the listed retail value of the auction (or unit count if retail value is not available), Phobio will reimburse you in an amount equal to the approved discrepancy. By way of example, if Buyer wins an auction and pays a Winning Bid of $1,000, and the shipment is missing an item that is 10% of the value of the auction, Phobio will issue Buyer a reimbursement in the amount of $100 (i.e., 10% of the of the listed retail value of the auction). Such reimbursement may be in the form of an offset against any amount you may owe to Phobio or a credit to your B-Stock account. Following the five (5) business day inspection period, you shall no longer have the right to claim any reimbursement for under-delivery/damage.
- Further Assurances. Each party agrees that it will execute and deliver, or cause to be executed and delivered, all such other instruments, and it will take all reasonable actions, as may be necessary to transfer and convey the Inventory Products to Buyer and to consummate the transactions contemplated herein.
- Confidential Information. Each party acknowledges that by reason of its relationship to the other party hereunder it will have access to certain information and materials concerning the other party’s business that are confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties. In particular, the parties hereto acknowledge that the information regarding the Purchase Price and any particular sale are confidential to Phobio. Each party will, and will cause its affiliates and employees to, protect and not disclose information that is considered confidential and use this information only to fulfill its obligations under these Terms of Purchase. Notwithstanding the foregoing, you understand that B-Stock will have access to confidential information pertaining to you. You may not make any public announcement about these Terms of Purchase without Phobio’s prior written approval and consent. Notwithstanding anything in this Section 6.1 to the contrary, any information (i) already in the public domain through no fault of the receiving party, (ii) independently developed by the recipient without the use of or access to the other party's confidential information, or (iii) released to the public through no action or inaction by the receiving party, will not be considered confidential information hereunder. 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. This Section 6 shall survive each purchase transaction hereunder.
- Representations and Warranties; Indemnity
- You shall indemnify, defend, and hold harmless Phobio and B-Stock, their respective affiliated companies, and each of their respective officers, directors, agents, and employees (the “Indemnified Parties”) against any claim, liability, loss, damage, cost or expense, including reasonable attorneys' fees, incurred by any Indemnified Party arising from or relating to (i) your use of the Site, (ii) any sale, use or handling of the Inventory Products, including any recall of the Inventory Products, (iii) any infringement or misappropriation of any proprietary right by you, (iv) your negligence or intentional misconduct, or (v) your breach of these Terms of Purchase.
- The indemnity obligation under this Section 7 shall survive each purchase transaction hereunder.
- Warranty Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE INVENTORY PRODUCTS ARE PROVIDED BY Phobio TO YOU “AS IS”, “WITH ALL FAULTS”, AND “WHERE IS”, AND Phobio DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE INVENTORY PRODUCTS, THE SITE, OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION THE INVENTORY PRODUCTS’ CONDITION OR QUALITY AND THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH IN THESE TERMS OF PURCHASE, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Phobio’S LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES ARISING FROM OR IN CONNECTION WITH THESE TERMS OF PURCHASE, EXCEED THE PURCHASE PRICE PAID BY YOU TO Phobio FOR THE INVENTORY PRODUCTS AT ISSUE. Phobio SHALL NOT BE HELD LIABLE FOR ANY ERROR IN A LISTING THAT Phobio CORRECTS PRIOR TO THE PURCHASE OF THE INVENTORY PRODUCTS TO WHICH THAT LISTING APPLIES. THIS LIMITATION OF LIABILITY SHALL SURVIVE EACH PURCHASE TRANSACTION.
Some states do not allow the exclusion or limitation of incidental, consequential, or special damages, or the exclusion of implied warranties. Therefore, some of the limitations set forth in this Section may not apply to you.
- Use of the Site
You agree and acknowledge that neither Phobio nor B-Stock make any guaranty of the accuracy, correctness or completeness of any Promotional Content and are not responsible for: (i) any errors or omissions arising from the use of any thereof; (ii) any failures, delays or interruptions in the delivery of any Promotional Content contained with the Site; (iii) losses or damages arising from the use of the Promotional Content provided by the Site; (iv) any conduct by you in connection with the Site; or (v) any Promotional Content or products provided through or in conjunction with the Site. You must comply with the operating rules and policies applicable to the Site as may be published or provided by B-Stock or Phobio in writing (including by posting on the Site) from time to time.
- Breach of Terms of Purchase
If you fail to comply with any term or condition in this Terms of Purchase, Phobio may immediately terminate your account, deactivate your password and seek any other remedy available to Phobio or its affiliates.
- General Provisions
- These Terms of Purchase will be governed by and interpreted in accordance with the laws of the state of Georgia, without reference to any applicable conflict of law rules, the Convention on Contracts for the International Sale of Goods, or any local laws implementing such convention in any jurisdiction where the Inventory Products are sold. You irrevocably consent to the exclusive venue and jurisdiction of Dallas TX courts for any action or proceeding arising out of these Terms of Purchase. YOU HEREBY WAIVE ANY RIGHTS THAT YOU MAY HAVE TO BRING DISPUTES FOR RESOLUTION BEFORE ANY OTHER COURT, TRIBUNAL OR FORUM. No waiver of or failure to enforce any provision of these Terms of Purchase shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing. The division of these Terms of Purchase into separate sections, subsections and/or exhibits and the insertion of titles or headings is for convenience of reference only and shall not affect the construction or interpretation of these Terms of Purchase. If any provision is held to be invalid, then that provision will be modified to the extent necessary to make it enforceable, and any invalidity will not affect the remaining provisions.
- Force Majeure. Phobio shall not 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 Phobio's reasonable control, whether or not of the kind specifically enumerated above.