John Lewis Trade Auctions TERMS OF PURCHASE
1. Acceptance of Terms of Purchase
1.1 Acceptance of Terms of Purchase. These Terms of Purchase are an on-going contract between Buyer and Seller (John Lewis Trade Auctions) for John Lewis Trade Auctions Merchandise. This agreement applies to any Trade Merchandise the Buyer purchases, or makes an offer to purchase, via any channel, including but not limited to any channel created, operated or owned by B-Stock Solutions. By checking the ‘I agree to the Terms of Purchase’ box each time you log in to 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 should not bid or purchase John Lewis Trade Auctions Merchandise from the site.
1.2 Modifications to Terms. John Lewis reserves the right, from time to time, with or without notice to you, to change these Terms of Purchase in its 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. Your use of the Site or continued purchases after changes are made mean that you agree to be bound by such changes. No purchase order or other documentation issued by a Buyer to John Lewis will alter these Terms of Purchase.
Refers to the individual (acting in a business or commercial capacity and not as a consumer) who purchases Trade Auction Merchandise from John Lewis Trade Auctions through the Site under the terms described herein and the entity that such individual represents in making the purchase, if applicable.
2.2 ‘Confidential Information’
Refers to all proprietary and confidential information of a Party by which its very nature should be treated as confidential and which the Party desires to protect against disclosure or use or which is designated as confidential by a Party, including:
a) information relating directly or indirectly to John Lewis Group’s business, including details of trade secrets, know-how, plans, strategies, ideas, operations, compliance information, processes, methodologies and practices;
b) information relating directly or indirectly to the John Lewis Group’s customers, suppliers or business partners (or potential customers, suppliers or business partners);
c) works of authorship, products and materials written and prepared by or on behalf of John Lewis in relation to this Agreement including equipment, software, data, diagrams, charts, reports, designs specifications, inventions and working papers or similar materials of whatever nature and on whatever media; and
d) the provisions of this Agreement
2.3 ‘Extended Auction’
refers to an auction where a bid is entered within the final 5 minutes of the original closing time, the auction will be extended by 3 minutes. If a bid is then placed before the extended 5 minutes elapses, the auction will be extended again for 3 minutes and the listing will continue to be extended until there are no new bids placed within the final 5 minutes of the auction.
2.3 ‘John Lewis Group or John Lewis Group Companies’
refers to any John Lewis company, any parent undertaking of the company and any subsidiary undertaking of that company or of any parent undertakings, from time to time (‘parent undertaking’ and ‘subsidiary undertaking having the meanings set out in Section 1162 of the Companies Act 2006)
includes, without limitation, goods returned to John Lewis by customers, end-of-line stock and any other stock that John Lewis considers is appropriate to sell, that are available for purchase on the Site under the terms described herein
3. Auction Process
3.1 Merchandise. Merchandise is provided to the Buyer ‘as is’ for purchase on the Site, and may include customer returns, end-of-line stock, merchandise in varying condition, including breached or damaged products. Accessories such as remote controls, cables and instructions may or may not be included. The quantity and/or value of actual Merchandise in each lot may vary up to ten (10) percent less or greater than the number set forth in the Auction listing.
3.2 Sale of Merchandise. For avoidance of any doubt, the Buyer shall not be entitled to any fixed level of sales activity from John Lewis, with stock volumes varying dependant on supplier. This Agreement and the relationship of the parties is non-exclusive. The Buyer has no return rights of any kind with respect to Trade Auction Merchandise, or any right to reject or refuse delivery of Trade Auction Merchandise. In this respect, all sales are final.
3.3 Auction Process. Merchandise will be sold pursuant to the auction process set forth in this Section 3. If Buyers wish to bid on Merchandise, Buyers will be required to enter a bid amount. By entering a bid for any Trade Auction Merchandise Buyers confirm acceptance of all the terms of this Agreement and warrant that they have all due permissions, consents and authorities to do so and to bind any corporate entity on whose behalf such bid is entered. Eligible bids 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 out on the bid page and (iii) placed before the scheduled closing time for such Auction (including any time added for an Extended Auction). If a Buyer’s bid is deemed the winning bid notification will be by email (the ‘Email Notification’) at the address provided when registering for an account. This email will serve as your official proof of purchase and/or official invoice. John Lewis will not be responsible for providing a VAT Invoice. Any additional formal invoice or proof of purchase outside of the original winning notification is not available. It is the Buyer’s responsibility keep their email address current and to timely check email accounts to determine if they are the winning bidder for any Auction they have participated in. John Lewis 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. If a Buyer’s bid is deemed the winning bid, the Buyer agrees to purchase all Merchandise offered in such Auction for the price offered in such bid.
4 Conditions to Sale
4.1 Purchase Price. The Purchase Price will be confirmed to a Buyer in the Email Notification and will include the winning bid amount, shipping costs, VAT and any additional fees, for certain Merchandise in an Auction. John Lewis hereby agrees to sell to a Buyer such Merchandise for which they have posted the winning bid pursuant to their compliance with the terms set forth in these Terms of Purchase and the Email Notification. Buyer agrees to pay the Purchase Price for the Merchandise 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 Auction. Failure to pay the Purchase Price means that the winning bid will be forfeited and John Lewis will relist the auction or sell to the next highest bidder in its sole discretion. Nothing in these Terms of Purchase shall otherwise obligate John Lewis to sell Merchandise to a Buyer. Buyers are responsible for all taxes, shipping costs and any other expenses incurred in connection to their purchase hereunder.
4.2 Cancelled Bids and Purchases. Please note that there may be certain bids and purchases that John Lewis are unable to accept and must cancel. John Lewis reserves the right, at its sole discretion, to refuse or cancel any bid or purchase for any reason. For example, a bid or purchase may be cancelled if there are inaccuracies or errors in product or bid information, or problems identified by the credit and fraud avoidance department. While John Lewis strives to provide accurate product and bid information, typographical or system errors may occur. In the event that bids for Merchandise are incorrectly listed or Merchandise are listed incorrect information due to an error in quantity or other product information, John Lewis shall have the right, at its sole discretion, to refuse or cancel purchases placed for such Merchandise and will have no liability to the Buyer as a result of such cancellation. In the event John Lewis chooses to cancel a bid or purchase, the Buyer’s bid or purchase will be cancelled and notified by email of such cancellation.
4.3 Payment Terms. Buyer shall pay the Purchase Price to John Lewis in cleared funds under the payment terms set forth in the Email Notification and on the Site. John Lewis may revise the payment terms from time to time in its sole and absolute discretion upon notice to the Buyer; 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 receipt of the Purchase Price and the fulfilment of any other conditions to sale, John Lewis shall arrange delivery with Buyer for such Merchandise in the manner set forth in Section 5 below.
4.4 Removal of John Lewis References. Under no circumstances shall the Buyer sell, lease, advertise or otherwise transfer or dispose of any of the Merchandise, unless Buyer first de-brand such Merchandise. De-brand means in accordance with John Lewis’ specifications or its affiliates’ names, logos, and other identifying marks (including but not limited to tags, labels, price stickers, barcodes, markings, packaging bearing any John Lewis identifiable marks, logos or other information, and any other documents or information such as packing slips or address labels that contain customer or any other John Lewis information) are removed. Although Buyers should not have access to any John Lewis customer information, including without limitation, sale receipts, addresses, phone numbers, credit card numbers or other personally identifiable information, if Buyer receives any such information that may be included with the Merchandise, Buyer will remove, delete and destroy all such information. Buyer shall not under any circumstances (i) identify John Lewis, its parent or any of its affiliates or divisions as the source of the Merchandise; (ii) advertise the Merchandise using any name relating to John Lewis, its parent or any of its divisions or affiliates, or any of its or their private labels, in any manner; (iii) make reference to John Lewis or its parent or any of its affiliates or divisions in any signing or advertising; or (iv) advertise the Merchandise using any name related to John Lewis’ suppliers.
4.5 Data Removal. The Buyer confirms that it will conduct all necessary repairs or refurbishment to the Merchandise to enable its onward sale at its own cost and risk. The Buyer also confirms that any devices which are capable of storing personal data will be cleared of all such data before sale to its customers, and will indemnify John Lewis in full against any claims, losses, fines or damages incurred by John Lewis as a result of the Buyer’s failure to comply with this clause. Certificates will be provided for each piece of hardware.
4.5.1 Responsibility. The responsibility to adhere to the Data Protection Act 1998 (or subsequent relevant legislation) is passed to the Buyer upon receipt of the items. This includes but is not limited to transportation, storage and resale. The Buyer MUST nominate one (1) responsible person who is accountable for this process. All devices with Data storage need to have all previous data wiped prior to resale to any other agent. The Buyer will treat all Customer Data on any applicable Trade Auction Merchandise as confidential and falls under the Data Protection Act 1998, and will not disclose it to any unauthorised persons or allow any unauthorised persons to gain access to it. Save as otherwise agreed, the Buyer accepts all liability for any claims resulting from the unauthorised disclosure. Each item should be traceable throughout the process including who the item was sold to. All costs associated to the erasure process are paid for by the Buyer. The Buyer agrees to indemnify and hold John Lewis harmless from any and all claims, losses or damages of any nature, including, without limitation, demands, actions, claims under the Consumer Rights Act 2014, the Consumer Protection Act 1987, the Trade Descriptions Act 1968 and all succeeding or other relevant legislation, including all taxes, legal costs and expenses, where that claim arises from any sale or resale of the Merchandise.
4.5.2 Erasure. The process should guarantee a 100% erasure rate on each device. Each device should have a minimum erasure level of 3 passes per storage item. Any devices that cannot be 100% erased need to be notified to John Lewis by serial number and shredded in accordance with the Data Protection Act 1998 (or subsequent relevant legislation) and the WEEE directive. Resetting the device to Factory setting or formatting the device is not an acceptable level of erasure.
4.5.3 Certification. These certifications should be produced one (1) per machine and may not be duplicated. All items need to have certifications detailing a minimum of status of wipe, serial and unique certificate number. All certificates should be from an official licensed software adhering to all Copyright rules within the UK & Ireland.
4.5.4 Resale. All Software reinstalled on an item should be official software adhering to all Copyright rules within the UK & Ireland. If any occurrences of data leakage, data loss or data exposure are identified then all legal costs, consequences and associated fines are indemnified against John Lewis, at the cost of the Buyer.
4.5.5 In the event that the Buyer becomes aware of any stored Data on any applicable Trade Auction Merchandise evidencing actual or potential criminal behaviour the Buyer will:
18.104.22.168 Take such action as the Buyer is legally obliged to, including notifying the police and/or any other required agency;
22.214.171.124 Be entitled to take legal advice accordingly; and
126.96.36.199 Subject always to any legal requirement to the contrary, notify John Lewis of the same.
4.6 Disputes. The Buyer shall have five (5) business days from the date of delivery of Merchandise to inspect the shipment for any discrepancies in the quantity delivered and report such discrepancy to John Lewis in writing. Buyer must provide a detailed manifest, labelling each item that is missing, as well as any supporting images or other documentation. John Lewis shall have no liability if the shortfall is less or equal to ten (10) percent of the total manifest value of the relevant Auction. If an under–delivery has occurred such that the manifest value of the goods not delivered is more than 10% of the total manifest value, John Lewis will reimburse the Buyer for any agreed under–delivery as a percentage of the amount paid by the Buyer for the relevant Merchandise. Such reimbursement may be in the form of an offset against any payments the Buyer may owe to John Lewis, at John Lewis’ discretion. Following such five (5) calendar days inspection period, the Buyer shall no longer have the right to claim any reimbursement for under–delivery. John Lewis has no responsibility to supply the Buyer with any particular product(s) in such circumstances or to replace any items that may have been included in the manifest.
4.7 Taxes. The Buyer will be solely liable for all sales tax, use tax, withholding tax, duties, surcharges and any other taxes or similar levies imposed by any governmental authority (hereinafter defined as ‘Transaction Taxes’) relating to the sale of John Lewis Trade Auctions Merchandise to the Buyer and for collection of all Transaction Taxes on any subsequent sale or disposition of such Merchandise to any third party.
5.1 Shipment of Merchandise. The Merchandise purchased by the Buyer will be available for shipment once payment for the Merchandise has been received. Shipment of Merchandise will be arranged for a mutually agreed time between John Lewis and the Buyer, with Shipment of Merchandise being made on behalf of John Lewis through a third party logistics company. At no point will the Buyer be permitted to collect Merchandise directly from the John Lewis facility. Shipment will be arranged to be made within five (5) working days of the Buyer making payment, unless otherwise agreed with John Lewis, any extension to this time will be at John Lewis’ sole discretion. If the Buyer fails to be available to accept the Merchandise within this time period John Lewis, in its sole discretion, may choose to keep such Merchandise, list such Merchandise for auction and refund the Buyer the Purchase Price paid to John Lewis less (i) a storage charge of £10 per pallet per each of the days John Lewis held the Merchandise for the Buyer after the Buyer registered a Completed Purchase and (ii) a restocking fee of twenty (20) percent of the Purchase Price.
5.2 Risk and Title. Title to the Merchandise shall remain with John Lewis until receipt of the Merchandise by the Buyer. The Buyer expressly acknowledges that risk of loss and liability for the Merchandise shall pass to the Buyer upon receipt of the Merchandise at the location supplied by the Buyer upon arranging shipment. The Buyer expressly acknowledges and agrees that they shall have no right to refuse or return the Merchandise after receipting the Merchandise at the location supplied by the Buyer upon arranging shipment.
5.3 Acceptance. The Buyer’s acceptance of possession of the Merchandise from John Lewis pursuant to Section 5.2 shall constitute an unqualified acceptance of the Merchandise and a waiver by the Buyer of all claims with respect thereto except as set forth in Section 4.6. All sales are final.
6. Indemnity. The Buyer will indemnify and hold harmless John Lewis, and John Lewis Group or John Lewis Group Companies from and against all claims, actions, losses, liabilities, damages, settlements, judgements, and costs (including, without limitation, reasonable attorneys’ fees and legal expenses) arising out of or relating to: (a) the purchase and/or use of Trade Auction Merchandise by any person or entity after the sale of the Trade Auction Merchandise to the Buyer, including if arising out of any allegations of negligence by John Lewis or any defect (pre-existing or otherwise) in the Trade Auction Merchandise; (b) any disposal, destruction, or recycling of any Trade Auction Merchandise by the Buyer; (c) any removal or remediation action under any environmental or similar Laws in connection with the Trade Auction Merchandise; (d) any claim of misused data or software improperly distributed due to resale or disposal of Trade Auction Merchandise; and (e) any breach by the Buyer of the terms of this Agreement
7. Confidentiality. 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 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 John Lewis. Each party will, and will cause its affiliates and employees (and John Lewis Partners) to, protect and not disclose information that is considered confidential and use this information only to fulfil its obligations under these Terms of Purchase. Notwithstanding the foregoing, the Buyer understands that B-Stock will have access to confidential information pertaining to the Buyer. The Buyer may not make any public announcement about these Terms of Purchase without John Lewis’ prior written approval and consent. Notwithstanding anything in this Section 7 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 receiving 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 7 shall survive each purchase transaction hereunder.
8. Proprietary Rights. The Buyer will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of John Lewis or John Lewis Group or John Lewis Group Companies in any manner (including without limitation, reference to the Buyer as a client, customer or supplier of John Lewis in any press release, advertisement or other promotional material) without prior written authorisation of such use by John Lewis.
9. Warranty Disclaimer; Limitation of Liability. Except as expressly set forth in these terms, the trade auction merchandise is provided by John Lewis to the buyer ‘as is’ and John Lewis disclaims all warranties of any kind, whether express or implied, statutory or otherwise, with respect to the Merchandise or any other matter, including without limitation the Merchandise’s condition or quality or the warranties or conditions of no infringement, 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 John Lewis’s liability for any and all losses or damages resulting from these terms of purchase, exceed the purchase price paid by the Buyer to John Lewis for the Merchandise at issue. John Lewis shall not be held liable for any error in a listing that John Lewis corrects prior to the purchase of the Merchandise to which that listing applies. This limitation of liability shall survive each purchase transaction.
10. Breach of Terms of Purchase. If the Buyer fails to comply with any term or condition in this Terms of Purchase, John Lewis may immediately terminate this Agreement, deactivate the Buyer’s account and seek any other remedy available to John Lewis or its affiliates.
11.1 Jurisdiction. These Terms of Purchase shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
11.2 Severance. In the event that any provision of these Terms of Purchase is deemed by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions will remain in full force and effect.
11.3 Waiver. The failure by either party to enforce any of the terms contained in these Terms of Purchase shall not be construed as a waiver of them or the right to enforce them subsequently.
11.4Assignment. John Lewis may assign, transfer or novate these Terms of Purchase (or any rights or obligations within it) to any John Lewis Group Company. The Buyer may not assign, transfer or novate this Agreement without the prior written consent of John Lewis.
11.5 Notice. Any notice required by these Terms of Purchase shall be given in writing and delivered personally or by first class post to the address given by the Buyer at point of Registration to the site. When a notice is delivered personally, notice is deemed given at the time of delivery. When a notice is delivered by post, notice is deemed given on the second day following the day on which the notice was posted.
11.6 Cumulative Rights. The rights and remedies of the parties under these Terms of Purchase are cumulative, and either party may enforce any of its rights or remedies under these Terms of Purchase or other rights and remedies available to it at Law or in equity.
11.7 Construction. The Section headings of these Terms of Purchase are for convenience only and have no interpretive value. These Terms of Purchase may be executed in counterparts, which together will constitute one of the same agreement.
11.8 Survival. The warranties and indemnities contained in these Terms of Purchase and the provisions for payment under these Terms of Purchase shall survive the termination or expiry of these Terms of Purchase.
11.9 Injunctive Relief. The Buyer acknowledges that any material breach of these Terms of Purchase by the Buyer would cause John Lewis irreparable harm for which John Lewis has no adequate remedies at Law. Accordingly, John Lewis is entitled to specific performance of these Terms of Purchase or injunctive relief for any such breach. The Buyer waives all claims for damages by reason of the wrongful issuance of an injunction and acknowledges that the Buyer’s only remedy in that case is the dissolution of that injunction.
11.10 Costs and Legal Fees. In the event of any legal proceeding between the parties arising from these Terms of Purchase, the substantially prevailing party may recover from the other party all of its reasonable costs and expenses, including without limitation attorneys’ fees and court costs.
11.11 Entire Agreement. These Terms of Purchase contain the entire agreement between the parties and supersedes any prior written or oral agreement between them. The parties agree that they have not entered into this Agreement on the basis of any representations that are not expressly included in this Agreement.
11.12 Force Majeure. If either party is prevented from fulfilling its obligations under these Terms of Purchase by reason of any supervening event beyond its reasonable control, the party which is unable to fulfil its obligations shall not be deemed to be in breach of this Agreement, but shall resume full performance of its obligations as soon as possible. If the force majeure event continues for a period of 30 days or longer, the party which is not subject to the force majeure event shall be entitled to terminate this Agreement with immediate effect on providing written notice to the other party.