1. Scope of Agreement
1. General. This Agreement applies to and is incorporated into all agreements relating to the sale or consignment of merchandise and other assets (“Goods”) and/or the work, tasks or projects to be performed (“Services”) between Purchaser and Jax Wholesale and Liquidation, including any other agreement, document or communication sent by Jax Wholesale and Liquidation to Purchaser relating to the Goods or Services, any of which could be issued manually, via facsimile, through electronic data interchange or otherwise. Purchaser acknowledges and agrees that entering into this Agreement does not create any obligation for Jax Wholesale and Liquidation to (i) sell any Goods to Purchaser or (ii) consign any Goods with Purchaser.
2. Tools, Equipment, Supplies. Purchaser agrees to provide all items, including such things as tools, equipment, labor, supervision and supplies, necessary to perform the Services except for any items that are specifically required to be provided by Jax Wholesale and Liquidation pursuant to a eSourcing event and/or online auction. If Purchaser requests to borrow any item, incl Jax Wholesale and Liquidation uding tools, equipment or supplies, from Jax Wholesale and Liquidation, Purchaser does so solely at Purchaser’s own risk and agrees to inspect such items and to exercise its own independent judgment in determining whether such items are fit, sufficient and safe for Purchaser’s intended use. Purchaser must promptly return any borrowed items to Jax Wholesale and Liquidation in the same condition as when borrowed, normal wear and tear excepted. Further, Jax Wholesale and Liquidation makes no warranties or representations with regard to any borrowed items.
2. Resale of Goods. Purchaser may, subject to Purchaser‘s compliance with all applicable Laws (as defined herein), sell Goods to unrelated third party entities (“subpurchaser”), provided (i) Purchaser has first complied with the obligations set forth in this Agreement and (ii) the subpurchaser has signed a written agreement with Purchaser agreeing to be bound by terms and obligations at least as strict as those listed in this Agreement, including the indemnity obligations and disclaimers inuring to the benefit of Purchaser and Jax Wholesale and Liquidation. Purchaser shall require all subpurchasers to perform their duties and obligations in compliance with the requirements of this Agreement, including the NDA and the provisions relating thereto, and the requirements of any other regulatory agency or governmental body having jurisdiction over such subpurchaser. Purchaser shall produce, upon request by Jax Wholesale and Liquidation, a copy of any subpurchaser contract confirming compliance with this provision.
1. Marking of Resale Goods. Goods offered for resale must be represented and marked as pre-owned, out-of-stock, closeout, damaged and/or customer returned (as applicable).
2. Use of Retailers Identification. Purchaser shall not use retailers name, trademarks, services marks, logos, any description that would reveal Jax Wholesale and Liquidation’s identity or other forms of identification, whether registered or not in any way, including any advertisements, press releases, announcements, customer lists (including customer lists on any website) or materials of a public or promotional nature or in soliciting other clients. Further, Purchaser shall not make any direct or indirect public reference to this Agreement or any other contract between Purchaser and Jax Wholesale and Liquidation without first obtaining Jax Wholesale and Liquidation written permission which may be withheld in Jax Wholesale and Liquidation sole discretion. In addition, Purchaser agrees that it shall not negatively reference or disparage Jax Wholesale and Liquidation.
3. The conditions of the Inventory Products are described in the Listing to the best of Jax Wholesale and Liquidation ability. Jax Wholesale and Liquidation attempts to be as accurate as possible. However, Jax Wholesale and Liquidation does not warrant that Listings are accurate, complete, reliable, current, or error-free. The quantities 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%) more damaged items than designated as “Damaged” in the Listing. Accessories such as remote controls, cables and instructions may or may not be included.
3. Removing retailers Identification. If Goods are not destroyed, Purchaser must remove all retailers Identification. If the Goods consist of items that were offered for sale or intended for sale in retailers retail stores or otherwise to the general public, and the Goods are not destroyed, then prior to reselling such Goods, Purchaser and/or any approved subcontractor shall comply with the retailers Merchandise Defacing and Delabeling Procedures Purchaser is solely responsible for ensuring that the Goods and their packaging and labeling comply with all applicable packaging, labeling and other Laws (notwithstanding the removal of all retailers Identification from them), and Purchaser acknowledges that the Goods might not comply with any such Laws upon receipt by Purchaser or after removal of the retailers Identification.
4. Transportation of Goods. Each eSourcing event and/or online auction shall specify which party is responsible for arranging and executing the transportation of Goods and, with respect to Goods that will be shipped, the shipping terms. The shipping terms have the meaning ascribed to them in the Incoterms.
5. Disposal of Goods. If Jax Wholesale and Liquidation directs Purchaser to dispose of all or any portion of the Goods, Purchaser represents and warrants that such disposal shall be completed in compliance with (i) all Laws, including all environmental laws, (ii) industry standards, and (iii) any additional instructions provided by Jax Wholesale and Liquidation.
6. Representation about Goods. Purchaser, including its employees, representatives, subpurchasers and any subcontractor, is not authorized to make any statement as to the quality, merchantability, fitness, conformance or condition of the Goods being offered for sale, other than as described in this Agreement. Purchaser acknowledges that any such statement made will not be binding on Jax Wholesale and Liquidation, and Purchaser agrees to indemnify and hold Jax Wholesale and Liquidation or its affiliates harmless for any such statements.
7. Invoicing. Upon the award of sale, Jax Wholesale and Liquidation will provide the Purchaser with details of payment requirements.
8. Compliance with Laws. Purchaser shall comply with all laws (including common and civil laws), ordinances, codes, rules and regulations (collectively, “Laws”) regarding Purchaser’s obligations and performance under this Agreement. Purchaser shall comply with all Laws pertaining to Goods and Services, as applicable, including those applicable to the liquidation, sale, resale, handling, recall, storage, disposal or recycling of the Goods and shall be solely responsible for all expenses, if any, including any taxes and fees imposed on the sales transaction, related to the purchase and disposition of the Goods. Purchaser shall obtain and maintain any and all permits, licenses, bonds, certificates, and other similar approvals required in connection with this Agreement.
9. Jax Wholesale and Liquidation is consigning and/or selling the Goods “AS IS”, “WHERE IS”, WITH ALL FAULTS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY AS TO THE NON-INFRINGEMENT OR THE KIND, SIZE, WEIGHT, QUALITY, CHARACTER, FUNCTIONALITY, DESCRIPTION, DURABILITY, CONFORMITY WITH ANY SPECIFICATIONS OR CONDITION OF THE GOODS, THE PACKAGING OR LABELING OF THE GOODS, THE MERCHANTABILITY OF THE GOODS OR THEIR FITNESS FOR ANY PARTICULAR, SPECIAL OR INTENTED PURPOSE. Without limiting the foregoing, the condition and use of the Goods shall be at the sole risk of Purchaser. Jax Wholesale and Liquidation is not responsible for any damages to any person or property as a result of the possible deficiencies or failures of the Goods.
1. Indemnification and Defense of Jax Wholesale and Liquidation. Purchaser shall defend, indemnify and hold harmless Jax Wholesale and Liquidation, its affiliates, and their respective directors, officers, shareholders, employees, contractors and agents (collectively, the “Jax Wholesale and Liquidation Parties”) from and against any liabilities, losses, investigations or inquiries, claims, suits, damages, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses) (each, a “Claim”) arising out of or otherwise relating to the subject matter of this Agreement, Purchaser’s performance or failure to perform as required by this Agreement, Purchaser’s acts or omissions, or any of Purchaser’s representations or warranties contained in this Agreement.
2. Withhold Amounts. If any Claims are made against any of the Jax Wholesale and Liquidation Parties for which Purchaser is obligated to indemnify Jax Wholesale and Liquidation as stated above, or if Jax Wholesale and Liquidation reasonably believes that such Claims may be made, Jax Wholesale and Liquidation may withhold from the amount otherwise due or to become due to Purchaser under this Agreement such amount as Jax Wholesale and Liquidation reasonably determines may be necessary to cover such Claims and to cover any costs which Jax Wholesale and Liquidation reasonably anticipates may be incurred in connection with defending against such Claims. The foregoing right to withhold payment is not Jax Wholesale and Liquidation exclusive remedy and is in addition to any other remedies which Jax Wholesale and Liquidation may have under this Agreement, at law or in equity.
10. Non-Exclusive. Jax Wholesale and Liquidation does not agree to use Purchaser exclusively. Purchaser is free to contract with others during the term of this Agreement as long as such other work does not negatively impact Purchaser’s ability to perform its obligations as contemplated by this Agreement.
11. Independent Contractors. Purchaser and Jax Wholesale and Liquidation are independent contractors. Nothing in this Agreement creates a relationship of agent and principal, partners, joint venturers, or employer-employee between Jax Wholesale and Liquidation and Purchaser (or any of Purchaser’s employees or agents). No act or obligation of either party will in any way bind the other. Purchaser has no right to purchase goods or services in the name of Jax Wholesale and Liquidation. Any expenses incurred by Purchaser in performance of this Agreement shall be reimbursed by Jax Wholesale and Liquidation only if the expenditure was approved in advance by Jax Wholesale and Liquidation. As an independent contractor, Jax Wholesale and Liquidation is interested only in the results of Purchaser’s performance and not the specific method or manner of performance. Therefore, while Purchaser agrees to perform the Services in accordance with and to Jax Wholesale and Liquidation standards and specifications, Purchaser retains sole and exclusive control over the method and manner in which the Services are performed. All Services performed pursuant to this Agreement are subject to Jax Wholesale and Liquidation’s right of inspection and must meet with T Jax Wholesale and Liquidation approval.
12. Purchaser Workers
1. Purchaser Workers. Workers employed or utilized by Purchaser to provide Services are not common law employees of Jax Wholesale and Liquidation. Purchaser is solely responsible for compensating such workers and for complying with all Laws relating to the workers. Such workers are not eligible to participate in any Jax Wholesale and Liquidation benefits, whether offered pursuant to a plan or otherwise, including welfare or pension benefits, retirement or incentives.
2. Hiring and Control of Workers. Purchaser is solely responsible for the hiring, termination, direction, control and conduct of its workers, and for ensuring that its workers are eligible and qualified to perform under this Agreement. Purchaser represents that it has in place a process for interviewing and screening prospective workers that is consistent with this Agreement, industry standards and applicable Laws, including immigration and, when required, Jax Wholesale and Liquidation security requirements. Purchaser shall conduct background checks on all current or prospective workers according to Jax Wholesale and Liquidation 's background check guidelines.
3. On Jax Wholesale and Liquidation Premises. To the extent that any employee, agent, or subcontractor of Purchaser is on Jax Wholesale and Liquidation premises in connection with this Agreement, Purchaser agrees that it will comply with all of Jax Wholesale and Liquidation rules, regulations and policies. Purchaser agrees that any property brought onto Jax Wholesale and Liquidation premises by a Purchaser employee, agent or subcontractor shall be at Purchaser’s sole risk and Jax Wholesale and Liquidation shall not be responsible for any loss or damage resulting to such property except to the extent that such loss or damage is caused solely by the gross negligence or willful misconduct of Jax Wholesale and Liquidation.
13. Electronic Transactions. Purchaser agrees to facilitate transactions with Jax Wholesale and Liquidation by electronically transmitting and receiving data through the electronic commerce platform designated by Jax Wholesale and Liquidation, which may be operated by a third party. Specific requirements for doing business with Jax Wholesale and Liquidation via electronic means will be communicated to Purchaser by Jax Wholesale and Liquidation from time to time during the term of this Agreement. Each of Jax Wholesale and Liquidation and Purchaser is responsible for its own relationship with the electronic commerce platform provider, including any and all costs of doing business through the electronic commerce platform. In addition, each party, at its own expense, shall provide and maintain the equipment, software, services and testing necessary to effectively and reliably transmit and receive information through the electronic commerce platform. Purchaser acknowledges that failure to comply with this subsection may result in loss of business or termination of this Agreement.
14. Amendments. The parties may not amend this Agreement except in a writing that each party signs. The terms of such an amendment shall apply as of the effective date of the amendment, unless the amendment specifies otherwise.
15. No Waiver. No provision of this Agreement shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No waiver will be applicable other than in the specific instance in which it is given. No failure to exercise, partial exercise of, or delay in exercising any right or remedy or failure to require the satisfaction of any condition under this Agreement shall operate as a waiver or estoppel of any right, remedy or condition.
16. Construction. This Agreement will be construed as if drafted by both parties and will not be strictly construed against either party as a result of drafting.
17. Entire Agreement. This Agreement, including all exhibits, schedules, and other documents specifically referenced in this Agreement, constitutes the parties’ entire agreement with regard to the subject matter of this Agreement. All prior and contemporaneous negotiations and agreements, whether oral or written, between the parties with regard to the subject matter of this Agreement are expressly superseded by this Agreement.
18. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired.
19. Survival. All warranties and indemnities survive the termination or expiration of this Agreement. In addition, every other provision that by its terms is intended to survive termination or expiration of this Agreement will do so.
20. Export Compliance. Purchaser shall not export any Goods without first securing Jax Wholesale and Liquidation prior written consent. In the event Purchaser or any Purchaser representative, or Purchaser exports any Goods in whole or in part, then the following provisions apply:
1. Authorizations. Purchaser warrants that, prior to exporting any Goods, Purchaser shall obtain all necessary export authorizations, licenses, and approvals for the export or deemed export of any Goods from the United States, including without limitation any exports or deemed exports of software, encrypted technology, equipment, or service and also for the re-export of such Goods from countries outside the United States. Purchaser shall be responsible for any applicable reporting requirements under all applicable laws (U.S. law or any applicable laws from foreign jurisdictions) for anything that it exports or re-exports. Notwithstanding the foregoing, should Jax Wholesale and Liquidation, in its sole discretion, deem it necessary or appropriate to obtain an export license or other authorization or approval in connection with this Agreement, Purchaser shall provide to Jax Wholesale and Liquidation any technical assistance and information necessary for Jax Wholesale and Liquidation to obtain such license, authorization or approval from the appropriate government entity or agency.
2. Compliance. Purchaser warrants that it is currently in compliance with and agrees to comply with all U.S. export control laws, sanctions laws, and regulations, specifically including, without limitation, the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. 120 et. seq.; the Export Administration Act, 50 U.S.C. App. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; and the regulations promulgated by the U.S. Department of the Treasury, Office of Foreign Products Control (“OFAC”), implementing U.S. sanctions programs, 31 C.F.R. Parts 500-598.
3. Restrictions on Sale of Goods. Purchaser shall not sell, nor allow the sale of, Goods to (i) any party located in any country then appearing on ITAR’s Prohibited Countries list, (ii) any individual then appearing upon the Denied Persons List as maintained by the U.S. Department of Commerce, or (iii) any party, individual or entity located in any international jurisdictions, which Jax Wholesale and Liquidation expressly prohibits, as Jax Wholesale and Liquidation may elect to do from time to time in its sole discretion.
21. Anti-Bribery. Purchaser agrees to comply with all United States export control and economic sanction laws, the United States Foreign Corrupt Practices Act (“FCPA”) and all other applicable anti-bribery laws. Purchaser represents, warrants, conditions and agrees that neither Purchaser nor anyone acting on Purchaser’s behalf has committed or will commit any act in connection with activities undertaken for Jax Wholesale and Liquidation or its affiliates that would result in a violation of the FCPA or any other anti-bribery law. Furthermore, in connection with activities undertaken for Jax Wholesale and Liquidation or its affiliates, Purchaser and anyone acting on Purchaser’s behalf shall not, directly or indirectly, give, offer to give, or authorize the giving of any money or anything else of value to any person for the purpose of obtaining, retaining, or directing business by (i) improperly influencing any act or decision, (ii) improperly inducing the recipient to act or refrain from acting in violation of a legal duty, (iii) securing any other improper advantage, or (iv) expediting or securing the performance of any routine governmental action. Purchaser shall immediately notify Jax Wholesale and Liquidation of any actual or suspected breach of this section.
22. Counterparts. This Agreement may be executed by the parties in counterparts which together constitute one and the same agreement. Notwithstanding any provision to the contrary, this Agreement shall be considered delivered upon receipt by the applicable party of a signed electronic copy; provided, however, that the parties each agree to immediately follow such delivery with a delivery of the signed originals of this Agreement at the request of the other party.
23. Definition of Confidential Information. "Confidential Information" means all information relating to or used in Jax Wholesale and Liquidation’s business even if it is not marked “confidential”. Confidential Information includes, but is not limited to, all business processes and procedures, systems, methods of doing business, data, reports, specifications, formulae, proposals, strategies, business plans and analyses, financial information and projections, personnel information, information about merchandising, information about past, present or potential customers, information about past, present or potential vendors, information about existing or future technology, future stores, and proprietary or third-party software. Unless information is about past, present or potential customers or employees of Jax Wholesale and Liquidation, the term “Confidential Information” does not include information that: (a) is or becomes known to the public through no fault of Purchaser; (b) Purchaser rightfully possessed before receiving it from or on behalf of Jax Wholesale and Liquidation; (c) is subsequently disclosed to Purchaser by a third party who is not under an obligation of confidentiality; or (d) Purchaser develops independently without using Confidential Information.
24. Non-Disclosure Obligation. Purchaser will not disclose Confidential Information except:
1. to its officers, directors and employees: (a) whose duties justify their need to know such Confidential Information, and (b) who have been clearly informed by Purchaser of their obligation to maintain its confidentiality;
2. to its contractors or agents: (a) whose duties justify their need to know such Confidential Information, (b) who have been clearly informed by Purchaser of their obligation to maintain its confidentiality, and (c) who are bound by obligations at least as restrictive as those described in this Agreement;
3. to the extent required by applicable federal, state, or local law, regulation, court order or other legal process; provided Purchaser has given Jax Wholesale and Liquidation prompt written notice of such required disclosure and, to the extent reasonably possible, has given Jax Wholesale and Liquidation an opportunity to contest such required disclosure at Jax Wholesale and Liquidation expense; or
4. as otherwise permitted by Jax Wholesale and Liquidation in writing.
25. Permitted Use of Confidential Information. Purchaser may use the Confidential Information, or any information that it develops based on the Confidential Information, only for the purpose for which it was disclosed.
26. Protection of Confidential Information. Purchaser represents and warrants that it has taken appropriate measures to protect the security, confidentiality, and integrity of Confidential Information. Purchaser will use the same care to prevent the unauthorized use or disclosure of Confidential Information as Purchaser uses with respect to its own confidential information of a similar nature, but no less than the care a reasonable business person would use under similar circumstances. Jax Wholesale and Liquidation shall have the right to review Purchaser’s operations and procedures to ensure compliance with this Agreement. Purchaser shall notify Jax Wholesale and Liquidation immediately, and shall cooperate fully with Jax Wholesale and Liquidation, in the event of any unauthorized access, use or disclosure of Confidential Information. Notice to Jax Wholesale and Liquidation regarding such an incident shall be sent by e-mail to [email protected] Purchaser shall indemnify and defend Jax Wholesale and Liquidation for damages and expenses resulting from any unauthorized access to, use or disclosure of Confidential Information.
27. Return or Destruction of Confidential Information. Upon Jax Wholesale and Liquidation request, Purchaser shall cease using and promptly return to Jax Wholesale and Liquidation or arrange for the destruction of all copies (whether hard, electronic or otherwise) of any Confidential Information then in Purchaser’s possession or under Purchaser’s control. If Purchaser returns Confidential Information, it shall be in a time, manner and format reasonably requested by Jax Wholesale and Liquidation. If Purchaser destroys Confidential Information, Purchaser agrees to dispose of the Confidential Information in such a manner that the information cannot be read or reconstructed after destruction. Upon Jax Wholesale and Liquidation request, Purchaser shall certify in writing that Purchaser has complied with the obligations set forth in this section. Jax Wholesale and Liquidation may make these requests using methods other than those outlined in section 9.
28. Ownership of Confidential Information. Jax Wholesale and Liquidation retains all right, title and interest in and to Confidential Information. Neither this Agreement nor any disclosure of Confidential Information shall be deemed to grant Purchaser any license or other intellectual property right.
29. Disclaimers. Purchaser agrees that Confidential Information is disclosed on an “AS IS” basis, without warranties of any kind. Jax Wholesale and Liquidation does not represent or warrant that Confidential Information is accurate, complete or current. The disclosure of Confidential Information containing business plans is for planning purposes only. Jax Wholesale and Liquidation may change or cancel its plans at any time at its sole discretion. Purchaser agrees that disclosure of Confidential Information does not obligate either party to enter into any type of business relationship.
30. Injunctive Relief. Purchaser acknowledges that the unauthorized use or disclosure by Purchaser of Confidential Information would likely cause immediate and irreparable harm that could not be fully remedied by monetary damages. Purchaser therefore agrees that Jax Wholesale and Liquidation may specifically enforce this Agreement and may seek injunctive or other equitable relief to prevent unauthorized use or disclosure without the necessity of proving actual harm.
31. Purchaser has been identified as a possible participant in at least one eSourcing event that will be conducted by Jax Wholesale and Liquidation or by a Jax Wholesale and Liquidation designee (the “Designee”), as applicable and as identified in the communication provided by Jax Wholesale and Liquidation or Designee for the eSourcing event. If Purchaser is invited to participate in an eSourcing event, Purchaser will receive an email invite to review information on this website. This website contains information about the product, service, program or activity that is the subject of the eSourcing event (the “Program”) and other applicable business requirements. Each eSourcing event contains a request to state Purchasers price and/or other terms for the Program, in each case as described in the eSourcing event.
32. In order to participate in an eSourcing event, Purchaser must agree to the terms and conditions contained in this Agreement. Please review this Agreement carefully and indicate whether you accept or reject these terms and conditions by following the directions for accepting or rejecting this Agreement as provided on the website through which you are accessing this Agreement. If you accept this Agreement, then Purchaser also agrees that such acceptance is in consideration of the possibility of its participation in the eSourcing event conducted by Jax Wholesale and Liquidation or a Designee, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged. If Purchaser rejects this Agreement, Purchaser will not be allowed to participate in the eSourcing event. Purchaser’s participation in any eSourcing event shall automatically constitute continued acceptance of this Agreement for that eSourcing event with either Jax Wholesale and Liquidation or, alternatively, with the Designee if that eSourcing event is being conducted by a Designee as described in paragraph 46 below. If you do not agree to be bound by this Agreement with regard to an eSourcing event, do not participate in that eSourcing event and immediately contact the Jax Wholesale and Liquidation Representative or Designee Representative identified in the eSourcing event.
33. Unless otherwise expressly set out in this Agreement, to the extent that any requirement stated in an eSourcing event directly conflicts with any term or condition of this Agreement, the eSourcing event will govern.
34. Jax Wholesale and Liquidation or a Designee, as applicable, conducts a variety of eSourcing events designed to source Programs online. If the eSourcing event is conducted by a Designee, Purchaser acknowledge and agree that the Designee and not Jax Wholesale and Liquidation is conducting the eSourcing event using Designee’s website and online processes and that this Agreement, in relation to that eSourcing event, is solely between Purchaser and the Designee. Further, Purchaser acknowledges and agrees that in the event the Designee uses Jax Wholesale and Liquidation website and online processes, Jax Wholesale and Liquidation has no responsibility or liability whatsoever for any activities related to the eSourcing event conducted by a Designee and that Purchaser will not pursue any claim or cause of action or other remedy whatsoever against Jax Wholesale and Liquidation or its affiliates relating to or arising out of the eSourcing event. Accordingly, if the eSourcing event is conducted by a Designee, Purchaser agrees that the provisions of this Agreement that reference Jax Wholesale and Liquidation shall be read to reference the Designee instead and create enforceable rights and obligations for the Designee in connection with the eSourcing event.
35. In utilizing the eSourcing format, the intent is to select a participant or a limited number of participants with whom Jax Wholesale and Liquidation or the Designee, as applicable, and as identified in the eSourcing event (the “Program Entity”), may then contract with regard to the Program as described in section 9 below. The overall objective is to reduce the cost of purchased goods and/or services without compromising stringent service, quality and compliance requirements.
36. At the conclusion of an eSourcing event, the information provided by Purchaser and other participants during the eSourcing process will be evaluated. Any bids or other information that Purchaser submits during the eSourcing event will be binding on Purchaser for such period after submission as set out in the eSourcing event or, if no such period is set out in the eSourcing event, then for a period of ninety (90) days after the eSourcing event.
37. If Purchaser is a successful participant and is unable to honor its bid, Jax Wholesale and Liquidation will not renegotiate and Purchaser may be disqualified from future eSourcing events. In addition, Jax Wholesale and Liquidation may pursue available legal remedies against Purchaser.
38. Purchaser agrees that, upon notification of acceptance of its bid in the eSourcing event by Jax Wholesale and Liquidation or the Designee, as applicable, Purchaser will be legally bound to the Program Entity in accordance with this Agreement and the eSourcing event (the “Purchase Terms”) if the Purchase Terms have been so identified.
39. eSourcing Activities are Conducted with Reserve and with Rights and Privileges Reserved. This Agreement does not commit Jax Wholesale and Liquidation or the Designee to any specific course of action. The acceptance of this Agreement or any subsequent document regarding an eSourcing event does not bind Jax Wholesale and Liquidation or the Designee to accept any bid or other term stated during the eSourcing event, in whole or in part, nor does it bind Jax Wholesale and Liquidation or the Designee to provide any explanation or reason for its decision to accept or reject any bid or other term. If Jax Wholesale and Liquidation or the Designee does conduct an eSourcing event for a specific Program, any and all eSourcing activities are conducted with reserve and are conducted reserving Jax Wholesale and Liquidation and its Designee, as applicable, rights and privileges set out in this Agreement and the eSourcing event. By way of illustration only, and not intending to limit the foregoing, Jax Wholesale and Liquidation or the Designee, as applicable, reserves the right to:
• interrupt, stop, discontinue or cancel an eSourcing event at any stage without obligation, including without limitation decide not to award business;
• discontinue or cancel an eSourcing event at any stage and issue a new eSourcing or other procurement for the same or similar deliverables to the same or different group of participants;
• alter any dates and deadlines at any time during the eSourcing event;
• establish a budget, minimum, reserve, maximum, or other price that is not disclosed to the participants, and accept or reject any or all bids upon the basis of such price;
• reject any or all bids or other terms submitted during any eSourcing event;
• accept offers other than the highest price offer;
• assess, evaluate, and/or rank a participant’s bid on the basis of:
• information provided by references;
• the information provided by a participant pursuant to Jax Wholesale and Liquidation or the Designee exercising its clarification rights under this process;
• any past relationship or experience between Jax Wholesale and Liquidation or the Designee or any of their respective affiliates, and the participant; or other relevant information that arises during this process or any eSourcing event;
• invite any, all or none of the participants to interview prior to awarding any business;
• award business on the basis of a bid or other terms submitted during an eSourcing event, with or without discussions or requests for best and final offers;
• waive requirements, irregularities, or formalities in the process or bids received and accept bids which substantially comply with the requirements of this process;
• request written clarification, or the submission of supplementary written information in relation to the clarification request, of information received from one, some or all participants and incorporate the response into the participant(s) submission(s) and adjust the evaluation of the submission(s) accordingly;
• verify with any participant or a third party any information set out in a submission;
• check references other than those provided by any participant;
• disqualify any participant or the submission or the bid of any such party who has engaged in conduct prohibited by this Agreement or the eSourcing event;
• make changes, including substantial changes, to the eSourcing event;
• if only one bid is received, reject such bid and cancel the eSourcing event process or enter into direct negotiations with the party who submitted such bid;
• award business to more than one participant;
• make public the names of any participants;
• disqualify any participant whose bid contains misrepresentations or any other inaccurate or misleading information;
• accept any bid in whole or in part, and these reserved rights and privileges are in addition to any other express rights or any other rights of Jax Wholesale and Liquidation or the Designee, as applicable, which may be implied in the circumstances.
40. All communications, contacts and questions with regard to a specific eSourcing event must only be directed to the Jax Wholesale and Liquidation Representative or the Designee Representative, as applicable, named in the eSourcing event. Discussions regarding a specific eSourcing event with any other party (including those within or associated with, Jax Wholesale and Liquidation or the Designee) may result in Purchasers disqualification from this process. Jax Wholesale and Liquidation or the Designee may in its discretion help clarify any items regarding this Agreement or specific eSourcing event. It is Purchasers responsibility to seek this clarification. Please direct all questions by e-mail to the Jax Wholesale and Liquidation Representative or Designee Representative identified in the eSourcing event. Please include a contact name, phone number and an e-mail address. At Jax Wholesale and Liquidation or the Designee’s discretion, substantive questions from participants and the corresponding responses may be shared with all participants.
41. Purchaser is obligated to have an appropriate, fully functioning Operating System and Internet Browser that are compatible with the website on which the eSourcing event is conducted and Purchaser accepts the risk of any malfunction or failure of its computer hardware, software, internet connection, Operating System or Internet Browser that may occur during an eSourcing event.
42. Purchaser agrees not to tamper in any way with the software or functionality of the online site used to conduct an eSourcing event. Purchaser also agree not to place or allow any viruses, time bombs, Trojan horses, worms, cancelbots or other computer programming that may damage, interfere with, or intercept any system data or information on the website or other Jax Wholesale and Liquidation system or software.
43. In the event that an eSourcing event is interrupted, stopped or otherwise canceled due to a failure or malfunction of Jax Wholesale and Liquidation or Designee’s computer system, software program, electrical system or other causes, Purchaser agrees that Jax Wholesale and Liquidation or the Designee, as applicable, will not be responsible or liable in any way for any claims, costs, expenses, losses or other damages that may arise out of or relate to such occurrence. Bids and information submitted for an eSourcing event shall only be considered received upon your receipt of an acknowledgement from Jax Wholesale and Liquidation or the Designee, as applicable.
44. Participant Responsibilities:
1. Bidding and Submitting Information: Purchaser will bid or submit information during an event at its own risk. If the individual submitting the information for Purchaser makes an error in the bid or other term, Purchaser assumes sole responsibility for the error. By allowing an individual to use Purchaser's password or other approved access to an eSourcing event, Purchaser is irrevocably authorizing that individual to act on behalf of Purchaser. All information submitted during an eSourcing event is binding on Purchaser until the Program Entity completes all purchases in fulfillment of the Program described in the eSourcing event. Jax Wholesale and Liquidation or the Designee, as applicable, reserves the right to dismiss a participant who is not actively bidding in an eSourcing event during the original eSourcing event time.
2. Participant Contact: Purchaser is required to provide a single point of contact that is responsible for the decision-making process for the entire business described in the Program. Purchaser represents and warrants that any individual participating in an eSourcing event has the authority to act on Purchaser's behalf. Any notice provided to Purchaser at the e-mail address used by Jax Wholesale and Liquidation or the Designee to send an e-mail inviting Purchaser to this website constitutes notice and is deemed received when sent in that manner.
3. Participant Commitments: The Program Entity will not be legally bound to any participant under any Purchase Terms, if any have been identified in the Agreement or the eSourcing event, until the Program Entity has signed such Purchase Terms with such participant.
General Disclaimer: Notwithstanding anything in this Agreement, or the eSourcing event to the contrary, none of Jax Wholesale and Liquidation, the Designee, nor their respective affiliates, employees, agents, consultants or advisors, shall be liable for any claims, costs, expenses, losses or damages or for any lost profits or revenue, or any legal or equitable remedy, in connection with this Agreement including, without limitation, arising from: an eSourcing event; Jax Wholesale and Liquidation Corporation’s, or the Designee’s conduct or misconduct of the eSourcing event; the Program Entity’s selection of participants for a Program; or acting in an unfair manner with respect to the eSourcing event; and even if Jax Wholesale and Liquidation Corporation or the Designee fails to comply with the terms of this Agreement, the eSourcing event or the processes set out therein and even if advised of the possibility of such losses or damages in advance.