Auction Platform User Terms and Conditions
1. Introduction
1.1 Use of the Auction Platform
(a) These Terms and Conditions set out the terms on which TLC Sourcing Hong Kong Limited (“Asurion”) offers Buyer access to and use of the Auction Platform as a buyer, including the directions and protocols for using the Auction Platform. Buyer agrees to comply with the terms of these Terms and Conditions when accessing or using the Auction Platform.
(b) If the Buyer purchases Equipment through the Auction Platform, then that purchase will be governed by the terms of the Global Equipment Sale Agreement (Auction Sales) (“Sale Agreement”) with the applicable Asurion Seller, which will include terms in respect of;
(i) payment and collection of the Equipment;
(ii) the term and ability to terminate the Sale Agreement;
(iii) responsibilities of the Buyer;
(iv) warranties, representations, liabilities and indemnities;
(v) procedures for Claims;
(vi) Intellectual Property Rights, Privacy and Confidentiality;
(vii) insurance requirements of the parties; and
(viii) other miscellaneous provisions (including the governing law of the Sale Agreement).
(c) The Buyer's Buyer ID, which will be issued to the Buyer upon registration of a Buyer Account, will grant the Buyer access to the Auction Platform. The Buyer ID is the Confidential Information of Asurion and, subject to Asurion's termination rights below, if the Buyer discloses their Buyer ID to any other person, then Asurion may close the relevant Buyer Account with immediate effect.
1.2 The Auction Platform
(a) The Auction Platform is an online marketplace that allows the Buyer to purchase Equipment from the Seller. To initiate each auction, Asurion will invite Buyers to the Auction Platform. After establishing the Buyer Account and accepting the Terms and Conditions, the Buyer will enter the Auction Platform's home page, which will provide information including the:
(i) auctions in which the Buyer is eligible to participate;
(ii) auctions currently in action; and
(iii) the Equipment being sold in each active auction.
Buyers may then select the auctions in which they wish to participate. All auctions will last 48 hours, unless otherwise specified. The establishment of a Buyer Account does not oblige the Buyer to purchase Equipment on the Auction Platform.
(b) Once a Buyer has entered a particular auction, the Auction Platform will provide information in relation to the Equipment being sold, including:
(i) a detailed description of the Equipment;
(ii) the name of the Seller;
(iii) the Collection Point;
(iv) Buyers current and whether Buyer is the highest bidder, updated in real time;
(v) time left in the auction;
(vi) the Payment Method provided by the Seller;
(vii) whether the Reserve has been met; and
(viii) the countries that are eligible to bid on and purchase Equipment.
(c) Each auction will be assigned a Reserve. The Reserve will not be disclosed to the Buyer. If the Reserve is not met, then the Buyer will receive a notification, upon the expiry of the auction, that the Reserve has not been met. In this case, the highest bidding Buyer will not win the Equipment, unless they elect to meet or exceed the Reserve.
(d) The Buyer will have the option to enter a Maximum Bid, which may be over and above the Reserve. One Buyer will not be able to see another Buyer’s Maximum Bid. If a Buyer bids on Equipment, and their bid is below another Buyer's Maximum Bid, then that Buyer will receive a notification if their bid is still beneath another Buyer’s Maximum Bid. However, if a buyer bids on Equipment, and their bid is above another Buyer's Maximum bid, then that that Buyer will receive a notice that their bid is now the highest bid, and the original Buyer will receive a notification that their Maximum Bid has been exceeded by another Buyer.
For example; if the Equipment have an opening bid of $1,000.00, and bidding must occur in increments of $500.00 or more, and Buyer 1 enters a Maximum Bid of $5,000.00, other Buyers will only be able to see the next increment in bid Purchase Price ($1,500.00). Therefore, Buyer 2 may bid $2000.00, but will receive a notification that their bid is not the highest bid and must raise its bid in order to win the auction. If Buyer 2 then raises their bid to exceed Buyer 1’s $5,000.00 Maximum Bid, Buyer 2 will then receive a notification that they are the highest bidder, and Buyer 1 will receive a notification that they have been outbid. For clarification, neither Buyer will be aware of each other’s identity throughout this process.
(e) The Buyer will be able to review their own bidding history, but will not see the bids of other Buyers, or how many Buyers are participating in an auction.
(f) A Buyer may not revoke any bid and the Buyer acknowledges and agrees that the Buyer purchases the Equipment at auction on an 'as is' basis and Asurion has no responsibility for latent or patent defects in the Equipment, including but not limited to deficiencies or inaccuracies in the description of the Equipment by the Seller or any of the details listed in clause 1.3(b) of the Terms and Conditions.
2. General
2.1 Purpose
These Terms and Conditions set out the terms on which Asurion offers the Buyer access to and use of the Auction Platform. The Buyer agrees to comply with the Terms and Conditions when accessing or using the Auction Platform.
2.2 Amendment of these Terms and Conditions
(a) Asurion may amend the Terms and Conditions from time to time by replacing the Terms and Conditions with new terms and conditions on the Website. Asurion’s right to amend the Terms and Conditions includes (without limitation) the right to modify, add to, or remove terms.
(b) The Buyer acknowledges and agrees that their continued access to or use of the Auction Platform constitutes their acceptance of the amended Terms and Conditions.
3. Terms relating to use of the Auction Platform
3.1 Invitation
(a) If the Buyer is invited to register with the Auction Platform by Asurion, then:
(i) an account will be generated in the name of the Buyer (Buyer Account); and
(ii) the Buyer will be issued with a unique username and password (Buyer ID) which will grant the Buyer access to the Auction Platform.
(b) The Buyer ID is the Confidential Information of Asurion and the Buyer must keep that Confidential Information confidential.
(c) A Buyer must not sell, give, assign, transfer or otherwise grant access to the Auction Platform to another person using that Buyer's Buyer ID without the prior written consent of Asurion.
3.2 Eligibility
The Buyer must have legal capacity to enter into legal relations in order to validly accept the Terms and Conditions, must be at least 18 years of age and free from any prohibition from entering into legal relations.
3.3 Bidding
(a) Bids entered in respect of the Equipment are final and Buyers may not revoke bids on the Equipment at any time.
(b) If there are no new successful bids during the 10 minutes immediately preceding the end of the time period specified for the auction, then the auction closes at the end of that time period.
(c) If there are any successful bids in respect of Equipment within 10 minutes of the close of the auction, then the auction will continue to be extended until there are no more successful bids within the Refresh Period. Asurion accepts no responsibility for any circumstances or incidents arising as a result of any slight variations that may occur in the Refresh Period.
3.4 Reserve
The Reserve will not be disclosed to the Buyer. If, at the conclusion of an Auction, the Reserve:
(a) has not been met, then Buyers will receive a notification explaining that the Reserve has not been met, and the highest bidding Buyer will not be deemed to have purchased the Equipment, unless they agree to match the Reserve; or
(b) has been met or exceeded, then the Buyer will be notified that they have won the auction, and the amount bid by the highest bidder will become the Purchase Price.
3.5 Maximum bid
(a) Buyers will have the option to enter a Maximum Bid.
(b) A Buyer will not be able to see another Buyer’s Maximum Bid.
(c) If a Buyer bids on Equipment and their bid is:
(i) below another Buyer's Maximum Bid, then that Buyer will receive a notification that their bid is still beneath another Buyer’s Maximum Bid; or
(ii) above another Buyer's Maximum Bid, then that that Buyer will receive a notification that their bid is now the highest bid; and
the original Buyer will receive a notification that their Maximum Bid has been exceeded by another Buyer.
3.6 Successful bids
A winning Buyer will receive a notification that they have won the Auction and the Equipment, after which the Seller will issue an invoice to the Buyer. Once payment of the Purchase Price has cleared, the Buyer will receive notification detailed the procedure to collect the Equipment from the Collection Point, pursuant to the terms of the Sale Agreement.
3.7 Acknowledgement
The Buyer acknowledges and agrees that:
(a) the Buyer is responsible for reading all information relating to the Equipment before making a bid;
(b) the Buyer enters into a legally binding contract with the Seller to purchase the Equipment, pursuant to the terms of the applicable Sale Agreement when that Buyer commits to buy Equipment (for Buy It Now sales), has the winning bid in an Auction or the Buyer's bid is otherwise accepted;
(c) the Buyer has an obligation to pay the Purchase Price to the Seller pursuant to the terms of the Sale Agreement; and
(d) Asurion is not responsible for patent or patent defects in the Equipment or in the description thereof.
4. Buyer conduct
4.1 Compliance with Laws, rights and policies
When accessing or using the Auction Platform, a Buyer must not:
(a) breach or circumvent any Laws relevant to their participation in the Auction Platform;
(b) do anything which may cause Asurion or a Seller to breach any Laws;
(c) violate the Intellectual Property Rights of Asurion, the Seller or any third-parties; or
(d) circumvent any Asurion systems, policies, or determinations as to that Buyer's account status, if relevant.
4.2 Unauthorised use
A Buyer must not access or use the Auction Platform if that Buyer is temporarily or indefinitely suspended from using the Auction Platform, or if their Buyer Account has been terminated pursuant to the Terms and Conditions.
4.3 Bid Manipulation and interference
A Buyer must not, when accessing or using the Auction Platform, engage in Bid Manipulation or any other behaviour which, in the reasonable opinion of Asurion, is designed to manipulate the Purchase Price of any Equipment, or interfere with another Buyer’s Buyer Account, Personal Information, Confidential Information, or their eligibility or ability to access or use the Auction Platform.
5. Privacy and Personal Information
5.1 Asurion may deal with Personal Information
Asurion will not use or disclose a Buyer's Personal Information, except where such disclosure is reasonably determined by Asurion as necessary to protect the legitimate business interests of Asurion, including but not limited to circumstances where disclosure of that Personal Information is:
(a) made with the consent of the Buyer;
(b) required by Law;
(c) necessary to comply with the listing rules of any recognised stock exchange or an order made by a regulatory body; or
(d) necessary to obtain the benefit of, and fulfil obligations under, the Terms and Conditions.
5.2 Buyer's Personal Information
A Buyer must ensure that their Personal Information provided to Asurion for the purposes of establishing a Buyer Account:
(a) is true and complete;
(b) is not fraudulent or misleading;
(c) does not infringe the Intellectual Property Rights of any party, including Asurion, the Seller and any third party;
(d) does not violate any Law; and
(e) does not contain Harmful Code.
5.3 Disclosure and use of Personal Information by other Buyer
If a Buyer (Recipient), through access to or use of the Auction Platform, receives any Personal Information about another Buyer (Disclosee), then the Recipient agrees:
(a) to use that Personal Information only for the purpose for which that information was disclosed; and
(b) not to disclose that Personal Information for purposes other than the purpose for which that information was disclosed,
unless the Recipient obtains the express written consent of the Disclosee to do so.
6. Intellectual Property
6.1 Reverse engineering
A Buyer will not:
(a) reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that:
(i) belongs to or is licensed to Asurion; and
(ii) derives from or forms part of the Auction Platform,
including but not limited to any works in which Asurion has Intellectual Property Rights; or
(b) commercialize any Asurion data, Confidential Information, Intellectual Property Rights or software, whether or not associated with or related to the Auction Platform.
6.2 Intellectual Property Rights of Asurion
(a) The Buyer will not, by virtue of their use of and access to the Auction Platform, acquire any rights, title or interest in any of the Intellectual Property Rights belonging to Asurion, either directly or indirectly or by implication or otherwise. All ownership rights, title and Intellectual Property Rights in and to the Auction Platform are the property of Asurion and may be protected by copyright or other applicable Laws.
(b) The Buyer is not permitted to use any Asurion trademarks or trade name owned by Asurion.
(c) The Buyer will indemnify Asurion against all liabilities, damages, costs and expenses which Asurion may suffer or incur as a result of the Buyer's access to or use of the Auction Platform and which results in the infringement of any Intellectual Property Rights of any person.
7. No Warranties
(a) Except as provided in the Terms and Conditions, or otherwise implied into the Terms and Conditions by Law, Asurion makes no warranties:
(i) as to the Auction Platform’s technical capacity, express or implied;
(ii) as to continuous, uninterrupted or secure access to the Auction Platform, and the Buyer acknowledges that the operation of the Auction Platform may be interfered with by numerous factors outside of the control of Asurion;
(iii) that Asurion will notice or be able to prevent any illegal or inappropriate use of the Auction Platform;
(iv) as to the preservation of any Personal Information of the Buyer, particularly after the Buyer's access to or use of the Auction Platform has been suspended, cancelled or terminated. The Buyer acknowledges and agrees that Asurion may delete or otherwise dispose of any Personal Information of the Buyer, at Asurion's sole discretion and without notice to the Buyer; and
(v) in relation to the Equipment, whether express or implied, including:
(A) against, in relation to the Equipment, patent or latent defects in material, workmanship or capacity; and
(B) any warranty of merchantability, suitability, fitness or purpose, accuracy of description or non-infringement,.
(b) The Buyer acknowledges and agrees that the Auction Platform may not be available at times, and bids placed may not be processed or may not be accepted for reasons beyond the control of Asurion. Asurion accepts no responsibility in these circumstances.
8. Security
8.1 Harmful Code
A Buyer must not:
(a) introduce any Harmful Code or any other technologies that may harm the Auction Platform, or the interests or property of other Buyers;
(b) use any robot, spider, scraper, or other automated means to access the Auction Platform for any purpose;
(c) bypass any Asurion robot exclusion headers, interfere with the working of the Auction Platform, or impose an unreasonable or disproportionately large load on the Auction Platform infrastructure.
8.2 Spam and posting content
A Buyer must not access or use the Auction Platform in order to distribute or post:
(a) spam, unsolicited electronic communications, chain letters, or information pertaining to pyramid schemes; or
(b) false, inaccurate, misleading, defamatory, or libellous content about or in relation to Asurion or any other Buyer.
9. Liability
9.1 Asurion liability to Buyer
Except where to do so would contravene any Law or cause any part of this clause to be void or unenforceable, Asurion excludes any and all liability to the Buyer (whether arising in contract or tort (including negligence) or under any statute) for any Losses including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses) suffered by the Buyer or a third party:
(a) resulting from:
(i) the Buyer's access to or use of or inability to access or use the Auction Platform;
(ii) delays, disruptions or technical difficulties in the Auction Platform;
(iii) Harmful Code obtained by accessing or linking to the Auction Platform;
(iv) glitches, bugs, errors, or inaccuracies of any kind in the Auction Platform;
(v) damage to the Buyer's hardware device from the use of the Auction Platform;
(vi) the content, actions, or inactions of third parties;
(vii) a suspension, termination or other action taken with respect to the Buyer's Buyer Account;
(viii) breach of the Terms and Conditions by Asurion;
(ix) the breach of the Intellectual Property Rights of a third party; or
(x) a bid for Equipment which was not received, processed or accepted by Asurion due to technical difficulties,
(b) which cannot reasonably be considered to arise naturally from the Buyer's access to or use of the Auction Platform or breach of the Terms and Conditions by Asurion, including any special, incidental or consequential damages (however arising, including by way of negligence).
10. Indemnity
(a) The Buyer waives, releases, discharges and relinquishes any and all Claims that the Buyer has, or may have, against Asurion, its affiliates, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to the Buyer's use of the Auction Platform.
(b) If the Buyer has a dispute with a seller or another buyer or buyers arising from or in relation to an Auction or the Auction Platform, Buyer waives, releases, discharges and relinquishes any and all Claims arising from or associated with any such disputes
(c) The Buyer agrees to indemnify and defend Asurion, its affiliates, shareholders, directors, officers, employees, agents and representatives and hold those parties harmless from and against any and all Claims made by any third party due to or arising out of a breach of the Terms and Conditions by the Buyer or the infringement by the Buyer (or any other user of the Auction Platform using the Buyer's Buyer ID) of any Intellectual Property Rights any third party.
(d) When providing releases in these Terms and Conditions, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of such releases to include only those claims which you may know or suspect to exist in your favour at the time of agreeing to this release.
11. Termination or suspension
11.1 Rights of Asurion
If Asurion believes a Buyer is abusing their right to access and use the Auction Platform in any way, then Asurion may, in its absolute discretion and without limiting other remedies:
(a) subject to this clause 11, suspend or terminate the Buyer Account;
(b) Limit Buyers access to the Auction Platform, remove any special status associated with Buyer Account, reduce or eliminate any applicable discounts and take technical and/or legal steps to prevent you from using the Auction Platform.
11.2 Termination by Buyer with notice
(a) A Buyer may terminate the Terms and Conditions with notice to Asurion by request that the Buyer Account be closed by notifying Asurion in writing.
(b) A Buyer may not close their Buyer Account if:
(i) that Buyer is the highest bidder in an auction;
(ii) an auction on which the Buyer has bid has not closed; or
(iii) that Buyer has not paid the Seller any amounts owing for any Equipment purchased on the Auction Platform.
11.3 Termination or suspension by Asurion for breach
Asurion may suspend or terminate a Buyer Account at any time with notice to the Buyer, if the Buyer breaches the Terms and Conditions, or for any other reason at Asurion’s reasonable discretion.
11.4 Termination or suspension by Asurion for fraudulent activity
Asurion may suspend or terminate a Buyer Account at any time with notice to the Buyer, if Asurion reasonably suspects that the Buyer has, or may have engaged in fraudulent activity in connection with their access to or use of the Auction Platform.
11.5 Termination or suspension by Asurion for inconsistent behaviour
(a) Asurion may suspend or terminate a Buyer Account at any time with notice to the Buyer, if Asurion reasonably believes that the Buyer’s conduct is inconsistent with the Terms and Conditions.
(b) Asurion reserves the right to determine whether or not the Buyer’s conduct is consistent with the Terms and Conditions and what Asurion considers to be good practice for the Auction Platform.
11.6 Termination or suspension by Asurion for provision of inconsistent information
Asurion may suspend or terminate a Buyer Account at any time with notice to the Buyer if:
(a) Asurion is unable, after exercising reasonable endeavours, to verify or authenticate any information that the Buyer has provided to Asurion; or
(b) the Buyer has given information to Asurion which is untrue, inaccurate or incomplete.
11.7 Asurion's considerations
If Asurion reasonably believes it has a right to terminate a Buyer Account pursuant to this clause 11, then Asurion may, in its absolute discretion, consider the history of the Buyer’s conduct on the Auction Platform, the specific circumstances of the Buyer and any other factors which Asurion deems reasonable, in deciding whether to exercise that right.
11.8 Re-registration
If Asurion suspends or terminates a Buyer Account in respect of a Buyer for any reason contemplated under this clause 11, then that Buyer may not register for another Buyer Account.
12. Notices
Asurion will distribute notifications to Buyers via e-mail in regards to:
(a) the status of an auction in which the Buyer is participating;
(b) the status of a Buyer's Maximum Bid;
(c) whether or not a Buyer has won the Equipment in a particular auction;
(d) the distribution of an invoice by the Seller;
(e) newsletters and other promotional events and offers relating to the Auction Platform, if applicable; and
(f) requests to participate in Buyer feedback,
but Asurion accepts no responsibility and will incur no liability for any Loss or damage incurred by a Buyer if that Buyer does not receive such notification.
13. Defined terms & interpretation
13.1 Defined terms
(a) In this document:
Auction Details means, in relation to each lot of Equipment, information describing the Equipment (including (without limitation), model type, quantity and other relevant specifications) to be sold by auction, the currency in which the Equipment is being sold and other ancillary or related information, made available to buyers through the Auction Platform.
Bid Manipulation means any practice which unfairly induces others to make bids for Equipment or in any way controls the Purchase Price, including but not limited to; methods of artificially raising the amount or frequency of bidding of an item (shill bidding), or colluding with other Buyers for the common purpose of manipulating the Purchase Price for Equipment.
Business Day means a day which is not a Saturday, Sunday or public holiday in Australia.
Claim means any claim, demand or proceeding arising out of any cause of action (including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action)).
Collection Point means the location or address for the collection of the Equipment, as specified by the Seller in the relevant Auction Details.
Equipment means the equipment purchased by the Buyer, from the Seller, through the Auction Platform.
Harmful Code means any computer code that is intended or known to be harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data excluding passwords, trial period software and like features which are security features or intended elements of the software solely used to prevent unauthorised use of the software in contravention of a licence.
Intellectual Property Rights includes all present and future copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, confidential information (including trade secrets and know how), registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Laws means the law in force in the jurisdiction of Hong Kong.
Losses means all liabilities, losses, damages, costs and expenses suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute or under any other cause of action.
Maximum Bid means, in respect of a particular auction, the amount that a Buyer allocates as the maximum amount that the Buyer is willing to pay for the Equipment.
Payment Method means the manner of payment for the Equipment, specified by the Seller in the Auction Details.
Personal Information in relation to a Buyer, means any information provided by the Buyer to either the Seller or Asurion when accessing or using the Auction Platform.
Auction Platform means the internet-based platform operated by Asurion, which facilitates the sale of the Equipment.
Purchase Price means the price for the Equipment, specified by Asurion in the Auction Details, or as determined by the applicable Auction
Refresh Period means the time between nine minutes and one second and nine minutes and fifty nine seconds (inclusive), being the period that the Website's timing mechanism has entered the tenth minute. For example:
(a) where a bid is placed at 2:53:00 pm, assuming there are no further bids placed, the auction will close at 3:03:00 pm; or
(b) where a bid is placed at 2:53:45 pm, assuming there are no further bids placed, the auction will close at 3:03:00 pm.
Representative of a party includes that party's; employees, agents, officers, directors, auditors, advisers, partners, consultants, joint venturers or contractors of that party.
Reserve means the minimum amount that must be bid for the Equipment by a Buyer in order for the Equipment to be sold.
Sale Agreement means the Global Equipment Sales Agreement (Auction Terms) between the Buyer and the Seller, and includes the schedules and any annexures or documents incorporated by reference.
Seller means the Seller of the Equipment identified on the Auction Platform.
Terms and Conditions means this document.
Website means the internet web address for the Auction Platform.
13.2 Interpretation
In these Terms and Conditions, unless the contrary intention appears:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, the Terms and Conditions, as amended from time to time in accordance with the Terms and Conditions;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to a dollar or $ is to the currency of United States of America;
(f) a reference to time is to Hong Kong time;
(g) a reference to a party is to a party to the Terms and Conditions, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Terms and Conditions or any part of it.
13.3 Headings
Headings are for ease of reference only and do not affect interpretation.
13.4 Survival
Clauses 5.1, 5.4 and 11.8 survive termination the Terms and Conditions.
13.5 Severability
Except as otherwise provided in the Terms and Conditions, if any provision of the Terms and Conditions are held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
13.6 Assignment
The Buyer may not assign or transfer their Buyer Account to any other person, except with the express written consent of Asurion.
13.7 Waiver
The failure of Asurion to act with respect to a breach by the Buyer or others, does not waive Asurion's right to act with respect to subsequent or similar breaches. Asurion does not guarantee that it will take action against all breaches of the Terms and Conditions.
13.8 Governing law and jurisdiction
The Terms and Conditions are governed by the law of Hong Kong and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Hong Kong.
