1. Acceptance of Terms
(a) Welcome to the Merchandize Liquidators, Warehouse and Services owned and operated by Merchandize Liquidators Inc (hereto referred to as, “Merchandize Liquidators”, “we,” “us,” or “ML”). Merchandize Liquidators allows registered clients to browse and purchase liquidated, overstock, open box, refurbished, and returned inventory at a discount. Only registered clients (“you”, “your”) can purchase goods and services from Merchandize Liquidators.
(b) Please read these Terms of Service carefully. This is a legally binding agreement between you and us. If you are approved and choose to purchase products from Merchandize Liquidators, you must also abide by the Purchase Agreement. These Terms of Service set forth the standards of buying from Merchandize Liquidators. By registering as a client, you agree to these terms and conditions. If you do not agree to the terms and conditions of this agreement, you should immediately cease all business with Merchandize Liquidators.
(c) If you elect to register with Merchandize Liquidators and/or participate in any ML promotions, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the account registration form (such information being the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it accurate via email or telephone. If you provide any information that is untrue, inaccurate, or incomplete, or ML has reasonable grounds to suspect that such is the case, ML has the right to suspend or terminate your account (including any payments or pending orders) and refuse any and all current or future business with ML (or any portion thereof).
(d) You agree that ML, in its sole and absolute discretion, may terminate your account (or any part thereof) for any reason, including, without limitation, if ML believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. ML may also in its sole discretion and at any time discontinue providing its goods and services, or any part thereof, with or without notice. You agree that any termination of your access to Merchandize Liquidators under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or to ML. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to Merchandize Liquidators.
(e) The provisions of these Terms of Service pertaining to disclaimers, exclusion of damages, limitations of liability and indemnification shall survive any termination of the Terms of Service or the Master Purchase Agreement.
(f) You are responsible for the payment of any shipping and handling charges and state and local sales or use taxes that may apply to your order.
(g) While our goal is to be 100% error-free, we do not guarantee that any content is accurate or complete, including price information and product specifications. If we discover price errors, they will be corrected on our systems, and the corrected price will apply to your order. ML reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions (including after an order has been submitted and accepted).
(h) The information, materials, and products provided by Merchandize Liquidators are provided for your review in accordance with the notices, terms and conditions set forth herein. These materials are not guaranteed or represented to be complete, correct or up-to-date. You may not act or rely on any information or materials provided and you particularly should not make any investment decisions based on any information or materials provided. You must independently verify the accuracy of all such information and materials before acting and relying thereon or making any investment decision in connection therewith. These materials may be changed from time to time without notice.
2. No Warranties; Exclusion of Liability
(a) Merchandize Liquidators makes no representation about the suitability of the information, materials and products for any purpose. All such products are provided “as is” without warranty of any kind, express or implied. Merchandize Liquidators specifically disclaim all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement.
(b) Merchandize Liquidators shall not have any liability or responsibility for any errors or omissions in the content of the information, materials or products provided or bought by the client, for your action or inaction in connection with said information, materials or products, or for any damage to your property or data or any other damage you may incur in connection with said information, materials, or products. You buy at your own risk. In no event shall either Merchandize Liquidators, its affiliates or agents be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with the information, materials or products provided or bought by the client, whether based on contract, tort, strict liability or otherwise, even if advised of the possibility of any such damages. Some states and/or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion may not apply to you.
(a) You agree that this agreement and your relationship with Merchandize Liquidators are governed by the laws of the State of Florida, USA. You hereby consent to the exclusive jurisdiction and venue of the courts, tribunals, agencies and other dispute resolution organizations in Miami, Florida, USA in all disputes (a) arising out of, relating to, or concerning Merchandize Liquidators and/or this agreement, (b) in which this agreement is an issue or a material fact, or (c) in which this agreement is referenced in a paper filed in a court, tribunal, agency or other dispute resolution organization. Merchandize Liquidators has endeavored to comply with all legal requirements known to it in creating and maintaining its business, but makes no representation that information, materials and products provided are appropriate or available for use in any particular jurisdiction.
(b) You are responsible for compliance with applicable laws. Any use in contravention of this provision or any provision of this agreement is at your own risk and, if any part of this agreement is invalid or unenforceable under applicable law, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall govern such use.
(c) With the prior agreement of Merchandize Liquidators any claim, dispute or controversy arising out of, relating to or concerning this agreement shall be decided by binding arbitration in accordance with the Rules of the American Arbitration Association and any such arbitration proceedings shall be brought and held in Miami, Florida, USA. The decisions of the arbitrators shall be binding and conclusive upon all parties involved and judgment upon any award of the arbitrators may be entered by any court having competent jurisdiction. This provision shall be specifically enforceable in any court of competent jurisdiction.
(d) You agree that Merchandize Liquidators may at any time and without notice change the terms, conditions and notices under which the information, materials and products are offered, without prior consent or notice.br You agree that no joint venture, partnership, employment or agency relationship exists between you and ML because of this agreement.
(e) This agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Merchandize Liquidators. No modification of this agreement shall be effective unless it is authored by Merchandize Liquidators or its affiliates, or unless it is physically signed in blue ink by a ML officer. Any alleged waiver of any breach of this agreement shall not be deemed to be a waiver of any future breach. A printed version of this agreement and/or of any notice given by Merchandize Liquidators in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained by Merchandize Liquidators in printed form.
MASTER PURCHASE AGREEMENT
1. Acceptance of Agreement
(a) Acceptance of Terms. This Terms of Purchase agreement (“Agreement”) is an ongoing contract between you and by EAM Holdings, LLC DBA as Merchandize Liquidators (“Merchandize Liquidators” or “ML”). This Agreement governs your purchase of Inventory Products from Merchandize Liquidators. By signing above, you accept and agree to be bound by this Agreement. If you do not consent to this Agreement, you will not be allowed to register as a customer and hence not be allowed to purchase Inventory Products from the Merchandize Liquidators.
(b) Modification of Terms. Merchandize Liquidators reserves the right in its sole and absolute discretion, from time to time, with or without notice to you, to change this Agreement. The most current version of this Agreement can be requesting via e-mail (email@example.com), telephone (1-800-218-9596) or in person. The most current version of the Agreement will supersede all previous versions. Your continued purchases after changes constitute your notice of, and agreement to be bound by, such changes. No purchase order or other documentation issued by you to Merchandize Liquidators will alter this Agreement unless signed by an authorized Merchandize Liquidators representative.
2. Additional Definitions
(a) “Buyer” or “you” or “your” shall mean the individual who purchases Inventory Products from Merchandize Liquidators under the terms described herein and the entity that such individual represents in making the purchase, if applicable.
(b) “Completed Purchase” occurs when (i) you have provided to Merchandize Liquidators all of the purchase information requested via e-mail, telephone, or in person at or before the time of purchase (ii) the Purchase Price for the Inventory Products has been received in the Merchandize Liquidators account.
(c) “Inventory Products” shall mean Merchandize Liquidators products that are available for purchase under the terms described herein.
(d) “Listing” or “Listings” shall mean the content provided by Merchandize Liquidators in various forms associated with particular Inventory Products, including, without limitation, the description and quantity of the Inventory Products. Merchandize Liquidators 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 purchased after such modification had been made.
(e) “Promotional Content” shall mean any and all information, service or content provided by Merchandize Liquidators or its agents in any medium in connection with this Agreement, including promotional content and any Listing.
(f) “Merchandize Liquidators’ Premises” shall mean any facility utilized or designated by Merchandize Liquidators to store or distribute any Inventory Products, which may include a facility owned and operated by a third-party.
3. Sales Process
(a) Inventory Products. Inventory Products consist of customer returns, store returns, warehouse returns, overstock, surplus, or any stock items that may or may not have been previously sold. The condition of the Inventory Products will vary. Merchandize Liquidators does not warrant that the Listings are accurate, complete, reliable, current, or error-free. The quantity of actual Inventory Products in each lot may be less or greater than the number set forth in the Listing and may be damaged. Accessories such as, but not limited to, remote controls, cables and instructions may or may not be included.
4. Conditions to Sale; Payment
(a) Purchase Price. In consideration for your payment of the purchase price set by Merchandize Liquidators for Inventory Products (the “Purchase Price”) and all applicable taxes, Merchandize Liquidators hereby agrees to sell to you Inventory Products for which you have requested and having complied with the terms set forth in this Agreement. You agree to pay the Purchase Price and all applicable taxes and fees for the Inventory Products by either (i) cash or (ii) wiring the full amount of the Purchase Price and such taxes to the Merchandize Liquidators account set forth in the wiring instructions provided at the point of sale. The instructions and other conditions set forth in this Agreement are part of the contract between you and Merchandize Liquidators and thus create enforceable obligations by-and-between Merchandize Liquidators and you. Your registering as a client affirms your acceptance of all terms and conditions set forth in the Terms of Service this Agreement. Nothing in this Agreement shall otherwise obligate Merchandize Liquidators to sell Inventory Products to you. You shall be responsible for all taxes, shipping and handling costs and any other expenses incurred in connection with your purchase hereunder.
(b) Canceled Purchases. Please note that there may be certain purchases that Merchandize Liquidators is unable to accept and must cancel. Merchandize Liquidators reserves the right, at its sole discretion, to refuse or cancel any purchase for any reason at any time. Some situations that may result in your purchase being canceled include, without limitation, inaccuracies or errors in product information or problems identified by Merchandize Liquidators Credit and Fraud Department. While Merchandize Liquidators strives to provide accurate product information, typographical or system errors may occur. In the event that Inventory Products are incorrectly listed or Inventory Products are listed with incorrect information due to an error in quantity or other product information, Merchandize Liquidators shall have the right, at its sole discretion, to refuse or cancel any purchases placed for such Inventory Products. In the event that Merchandize Liquidators must cancel a purchase, ML will cancel your purchase and notify you by email of such cancellation.
(c) Payment Terms. You shall submit the Purchase Price to Merchandize Liquidators under the payment terms set forth in the Listing, Sales Order, or Invoice provided and this Agreement. Merchandize Liquidators may revise the payment terms from time to time in its sole discretion upon notice to you in an email; provided, however, that any change to payment terms will not be effective for any then-pending sale, but will only be effective for the next sale subsequent to such notice. Upon acceptance of such Purchase Price and the fulfillment of any other conditions, such as paying any applicable taxes or fees, to such sale described herein, Merchandize Liquidators will sell, assign, transfer and convey to you all of Merchandize Liquidators’ right, title and interest in and to the Inventory Products and shall make such Inventory Products available for removal by you or your agents in the manner set forth in Section 5 below.
(d) Other Conditions
(1) Merchandize Liquidators shall not be obligated to complete any sale or deliver any Inventory Products to you unless and until you have submitted an accurate and complete re-sale certificate in a form acceptable to Merchandize Liquidators. ML reserves the right to complete any sale or deliver an Inventory Product in the absence of an accurate and complete re-sale certificate.
(2) Any breach of this Section 4 by Buyer may result in Merchandize Liquidators termination of Buyer’s access to Inventory Product purchases. Buyer further acknowledges and agrees that such a breach will result in immediate irreparable harm to Merchandize Liquidators. Monetary damages may not be a sufficient remedy for such breach. Accordingly, Merchandize Liquidators shall be entitled to equitable relief by way of temporary and permanent injunctions, in addition to monetary damages, and such other and further relief as any court of competent jurisdiction may deem just and proper. In the event that Merchandize Liquidators uses any remedy afforded by this provision, Merchandize Liquidators shall not be deemed to have waived any other rights or remedies available to it under this Agreement or applicable law.
5. Removal and Acceptance of Inventory products
(a) Removal and Shipment of Inventory Products. Merchandize Liquidators will not provide shipping for any and all Inventory Product purchases. All Inventory Products are EXWORKS Merchandize Liquidators Warehouse (701 E 10th Ave, Hialeah, Florida, 33010) unless otherwise specified (i.e., you are responsible to pick up your Inventory Purchase from our warehouse unless otherwise specified by a Merchandize Liquidators representative). If you fail to pick up the Inventory Products within five (5) business days of the Inventory Products being marked ready for pick up, Merchandize Liquidators may choose to keep such Inventory Products, list such Inventory Products for sale and refund to you the Purchase Price you paid to Merchandize Liquidators less (i) a storage charge of two percent (2%) of the Inventory Products not picked per each day ML held the Inventory Products for you after you registered a Completed Purchase and (ii) a restocking fee of thirty percent (30%) of the Purchase Price
(b) Title; Risk of Loss. Title to the Inventory Products shall remain with Merchandize Liquidators until you 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. 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.
(c) Acceptance. Your acceptance of possession of the Inventory Products from Merchandize Liquidators pursuant to Section 5(b) shall constitute an unqualified acceptance of the Inventory Products and a waiver by you of all claims with respect thereto. ALL SALES ARE FINAL. No returns or refunds are allowed. All Inventory Products purchased from Merchandize Liquidators are sold in “As Is” condition without warranty of any kind and are not eligible for any warranty coverage.
(d) If you have overpaid, you will have sixty (60) days to decide whether you would like a refund for the excess amount via wire, refund to a credit card, or check, or issued a non-refundable credit for future purchases. Once the sixty (60) days have passed, no payments, refunds or non-refundable credits will be issued.
(e) Merchandize Liquidators, at its sole discretion, reserves the right to determine to issue credit. CREDITS ARE NON-REFUNDABLE. Once a credit has been issued, you will have sixty (60) days to use the credit before it expires. Credits can only be applied to no more than 30% of a total invoice.
6. Additional Charges and Fees
(a) Restocking. A 30% (thirty percent) restocking fee of the total invoice will occur upon any cancellation or order change.
(b) Storage fees. Once the order is picked, packed and marked ready for pick up you will have 5 (five) business days to pick up your order. After that 5 (five) day window for pick up is over a daily storage fee of 2% (two percent) of the Purchase Price of remaining items will apply.
(c) Additional charges. Additional charges such as sales tax, credit card fees of 3 to 4%, shipping, handling and transportation are the responsibility of the purchaser and are subject to change without prior notice.
(d) Refund of Florida Sales Tax. You have until the end of the calendar month within which you made a purchase and paid Florida Sales Tax to prove Florida Sales Tax exemption. Acceptable means of proof are a valid Resale Certificate, an out of state address on a legitimate identification document, or a Bill of Lading showing a foreign destination.
7. Claims and Complaints
(a) Any shortages, breakage or damages must be claimed directly with the shipping party and not with Merchandize Liquidators.
(b) All claims and complaints must be submitted via the Merchandize Liquidators Customers Complaint form in order to be reviewed and considered. This form can be requested from any Merchandize Liquidators sales agent, manager, or officer.
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 such 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 Merchandize Liquidators. Each party shall take every reasonable precaution to protect the confidentiality of such information. Notwithstanding the foregoing, you understand that ML will have access to confidential information pertaining to you. You may not make any public announcement about this Agreement without Merchandize Liquidators’ prior written approval and consent. Notwithstanding anything in this Section 6 to the contrary, any information (i) already in the public domain, (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.
(a) You shall indemnify and hold Merchandize Liquidators Inc and their respective subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim, demand, action, losses and/or costs, including reasonable attorneys’ fees, due to or arising out of (i) any sale, use or handling of the Inventory Products or (ii) any breach of this Agreement.
(b) The indemnity obligation under this Section 7 shall survive each purchase transaction hereunder.
10. Warranty Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE INVENTORY PRODUCTS ARE PROVIDED BY MERCHANDIZE LIQUIDATORS TO YOU “AS IS”, “WITH ALL FAULTS” AND “WHERE IS” AND MERCHANDIZE LIQUIDATORS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE INVENTORY PRODUCTS OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION THE INVENTORY PRODUCTS’ CONDITION OR QUALITY OR THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. YOU ACKNOWLEDGE, BY REGISTERING, THAT YOUR PURCHASE OF THE INVENTORY PRODUCTS IS AT YOUR SOLE RISK. MERCHANDIZE LIQUIDATORS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, OR LOSS OF GOODWILL, CUSTOMERS OR PROFITS, ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF MERCHANDIZE LIQUIDATORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MERCHANDIZE LIQUIDATORS’ LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, EXCEED THE PURCHASE PRICE PAID BY YOU TO MERCHANDIZE LIQUIDATORS FOR THE INVENTORY PRODUCTS AT ISSUE. MERCHANDIZE LIQUIDATORS SHALL NOT BE HELD LIABLE FOR ANY ERROR IN A LISTING THAT MERCHANDIZE LIQUIDATORS CORRECTS PRIOR TO THE PURCHASE OF THE INVENTORY PRODUCTS TO WHICH THAT LISTING APPLIES. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE EACH PURCHASE TRANSACTION AND ANY TERMINATION OF THIS AGREEMENT. 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.
11. Breach of Agreement
If you fail to comply with any terms or conditions of this Agreement, Merchandize Liquidators may immediately terminate your account and/or seek any other remedy available to Merchandize Liquidators or its affiliates.
12. General Provisions
(a) This Agreement is governed by the laws of the state of Florida, without reference to its choice of law rules. Any action or proceeding arising out of, related to, or in any way involving this Agreement and/or your participation in or involvement with the Site must be brought in the state or federal courts located in Miami, Florida. By conducting business with Merchandize Liquidators, you consent to the exclusive personal jurisdiction of such courts. No waiver of any provision of this Agreement shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing. The division of this Agreement 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 this Agreement.
(b) Except as expressly provided herein, this Agreement does not confer any rights or privileges upon any third party.
(c) Merchandize Liquidators shall not be liable to you 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, hurricane, explosion, acts of any government, unforeseen shortages or unavailability of fuel, power, transportation, or supplies, and any other causes which are not within Merchandize Liquidators’ reasonable control, whether or not of the kind specifically enumerated above.
(d) 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 any Inventory Products to Buyer and/or to consummate the transactions contemplated herein.
(e) Any non-English version of this document will defer to the English version regarding matters of reference and interpretation, if and when the interpretation and/or application of any non-English version of this document is called into question by, but not limited to: a client, a legitimate agent of Merchandize Liquidators or third party, legal or otherwise.
(f) This Agreement was last updated on September 29, 2018. Please check periodically with Merchandize Liquidators for changes.