OutBid Terms of Service
Welcome to outbidapp.com (the “Site”), which is owned and operated by SmudgeApps Limited. (“OutBid”). Any person visits or uses the Site or Service (defined below), including those who register to purchase Goods offered by third-parties through this Site (“Buyers”) and those who sell Goods through the Site (“Sellers”), must accept the terms and conditions set forth in this User Agreement without change or alteration. All access to the Service, including access via mobile devices, is covered by and subject to this Agreement. PLEASE NOTE THAT WHEN YOU ACCESS THE SITE, INCLUDING IF YOU REGISTER FOR AN ACCOUNT ON THE SITE, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS CONTAINED IN THIS USER AGREEMENT INCLUDING ALL SPECIAL NOTICES, THE PRIVACY AND SECURITY POLICY, USER AGREEMENT AND ALL OTHER POLICIES, PROCEDURES AND GUIDELINES (INCLUDING BUT NOT LIMITED TO THOSE FOR CONDUCTING AUCTIONS) INCORPORATED HEREIN BY REFERENCE (TOGETHER, THE “AGREEMENT”). Registration on our Site, and all use of our services are available only to individuals who have the power to form legally binding contracts under applicable law. Without limiting the generality of the foregoing, our services are not available to minors. If you do not qualify, please do not use this Site. OutBid may change the terms and conditions set forth in this Agreement in the future. Any changes to the Agreement and to other policies, procedures or guidelines referenced herein will be effective immediately upon posting on the Site, unless the changes materially change your rights or obligations, in which case we will give you reasonable advance notice. If you do not agree to any changes, your sole remedy is to not use the Site or our services. You are responsible for reviewing notices and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THE SITE FOLLOWING THE OUTBID’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, YOU MAY NOT CONTINUE TO USE THIS SITE.
This Agreement is presented in two sections: A. “General Terms and Conditions,” and B. “Certain Provisions Relating to Buyers.”
Sellers will also be subject to a separately executed Services Agreement between OutBid and the Seller.
A. GENERAL TERMS AND CONDITIONS
Operation of Site and Taxes.
The Site provides a hosted auction service that provides virtual venue for Sellers to offer goods, access to events, services, and other items of value (collectively, “Goods”) to willing Buyers for sale to the Buyer with the highest bid and for Buyers to bid on and purchase Goods (“Service”). The Service is offered through the Site and, if you choose, through OutBid’s mobile applications and related optional technology. OutBid reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that OutBid shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. OutBid is responsible for the operation of the Site and Service. OutBid has no involvement in any transaction entered into, on or through the Site or Service, except that as a service to introduce the Buyer and Seller.
Unless exempt by law, the successful Buyer may be required to pay the Seller or the applicable governmental tax collection entity or entities sales or use tax, or other applicable transactional tax, as determined by the Seller or applicable law. The Buyer may also be subject to a compensating use tax or other tax in his or her domicile. It is the Seller’s and the Buyer’s responsibility to determine whether taxes apply to the transactions and to collect, report and remit the correct tax to the appropriate tax authority. OutBid is not responsible or liable for any taxes or other assessment arising from any transaction between Buyers and Sellers, and Buyer and Seller are obligated to determine whether taxes apply and responsible for collecting, remitting or reporting any sales or use taxes arising from any transaction. You shall indemnify, defend, and hold OutBid harmless from any damage, cost, expense or other liability arising out of or related to (a) any taxes or other fee imposed on any transactions you enter into through the Site or our services, (b) any sales, purchases, bids or other transaction you enter into or attempt to enter into through the Site.
The “Total Purchase Price” is defined as:
(a) the successful bid or purchase price for Goods which includes, plus
(b) sales tax, use tax, GST, VAT, TVA or any other taxes that the Seller has instructed OutBid to collect from the Buyer or that OutBid is required to collect pursuant to applicable law, plus
(c) shipping costs and customs duties (if applicable), plus any transit insurance charges that the Seller has detailed for OutBid to collect where necessary, please note
(d) In New Zealand, GST is included in all successful bid or purchases prices for Goods.
OutBid does not act as agent for either the Buyer or Seller for any purpose.
OutBid is not responsible for estimates, descriptions, condition, authenticity, title and all other matters relating to the offer and sale of such Good. Information associated with Goods is entered by the donating parties and is accurate to the best ability of the donating participants.
OutBid reserves the right to review and to change the “User Name” of any person registering to participate in any auction on this Site, at any time and for any reason, upon e-mail notice to such person.
Limitations of Guarantees.
OutBid makes no representation or warrantee whatsoever regarding Goods and hereby disclaims all warranties and representations of any kind regarding Goods, whether oral or written, express or implied, including without limitation, warrantees as to merchantability, fitness for a particular purpose, title, non-infringement, quality, rarity, importance, provenance, exhibitions, literature or historical relevance of the Goods.
All Goods offered on this Site are sold subject only to the specific guarantees given by the Seller as to authenticity, description, and physical condition set forth in the sections captioned “category”, “description”, and “fine print (notables)” on the Item Description Page for the Goods located on the Site (“Seller Guarantee”). Goods offered on the Site are often of some age. Other than the Seller Guarantee, all Goods on the Site are sold “AS IS.” No other statement anywhere, whether oral or written, shall be deemed such a guarantee, warranty or representation. Please note that neither OutBid nor the Seller make any representation or warranty as to whether the Buyer acquires any reproduction or other intellectual property rights in the property. Seller represents and warrants that all descriptions, guarantees, promises, and warranties regarding Goods, including the Seller Guarantee, are accurate and complete, and Seller agrees it is solely responsible for all statements and descriptions of or related to Goods.
No guarantee is made by the Seller with respect to information appearing in sections other than those listed in the previous sentence. Any information, photos, or additional detail about the Good is not guaranteed, and a sale is not subject to rescission in the event that any of this non-guaranteed information proves to be inaccurate. Photos of Goods may be representative and not be the actual Good.
When reviewing descriptions of Goods, you should bear in mind the age and past use of the Good and should assume that Goods may show signs of reasonable “wear and tear.” If you would like additional information as to the condition of a Good, you should contact the Seller prior to bidding on or making an offer to purchase the Good.
OutBid, Apple Inc., Google Inc. are collectively not responsible for any incorrect or inaccurate content posted on the Site or in connection with the Service, whether caused by users of the Site, Buyers, Sellers or by any of the equipment or programming associated with or utilised in the Service. OutBid is not responsible for the conduct, whether online or offline, of any user of the Site or Buyer or Seller of the Service. OutBid assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user or Buyer/Seller communications. OutBid is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to users and/or Buyer/Seller or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will OutBid or any of its affiliates, advertisers, promoters or distribution partners be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the Site or the Service, any content posted on the Site or transmitted to Buyers or Sellers, or any interactions between users of the Site, whether online or offline.
A charitable contribution is when you donate money (including securities or business ownership interests), goods or services to an organisation and deduct the market value of this contribution on your income tax return. Under no circumstances does OutBid acknowledge that any purchases made by Buyer (from Seller) via OutBid represent a charitable constribution based on this definition. Buyer also acknowledges that any purchases made via OutBid do not represent a charitable contribution based upon this definition, regardless of how it is represented by the Seller. Finally, Seller acknowledges that any items sold through OutBid are not charitable contributions strictly based upon this definition and will advise the Buyer to consult with a tax advisor about the deductibility of any final sales.
It is specifically understood and agreed that the rescission of a sale and refund of the Total Purchase Price is exclusive and in lieu of any other remedy that might otherwise be available as a matter of law, or in equity. The Buyer shall not be entitled to any incidental or consequential damages incurred or claimed.
Refusal of Transaction.
OutBid reserves the right to withdraw any Goods before the end of the sale period, halt any sale during its progress, and/or remove, screen or edit any materials or content on the Site. OutBid may also extend any sale or change the closing time for any sale. OutBid may refuse to process a transaction for any reason or refuse service to anyone at any time in its sole discretion. Neither OutBid nor any of its affiliates will be liable to any Buyer, Seller or third party by reason of OutBid’s withdrawal of any Goods prior to the end of the sale period; halting any auction or sale during its progress; removing, screening or editing any materials or content on the Site; refusing to process a transaction; or unwinding or suspending any transaction after processing has begun. In the event of failure of Buyer to complete a sale for any reason, including OutBid’s decision to refuse to process the transaction, OutBid shall have the right to sell the property to the next highest bidder. In the event of similar bids, the earliest bidder at that level will be the successful Buyer. In all cases, OutBid’s determination of the successful Buyer will be final.
OutBid has the right, but not the obligation, to monitor any activity and content associated with the Site and Service. OutBid may investigate any reported violations of the Site policies or complaints and take any action that it deems appropriate (which may include, but is not limited to, issuing warnings, suspending or terminating service, denying access and/or removing any materials on the Site, including listings and bids). OutBid may also investigate, in its sole discretion, the use of any credit card by a user registered to buy on the Site, and take such action as OutBid deems appropriate, including without limitation, contacting the individual using such card, canceling bids or an offer to purchase placed by such user, and/or deactivating a Buyer’s account.
Last Second Bids.
Buyer may place bids up until the auction is closed by the system. In all cases OutBid has the right to determine the ultimate winner of the item.
Eligibility to Use Site.
Use of the Site is limited to parties that lawfully can enter into and form contracts and buy and sell on the Site under applicable law. For example, minors and persons and entities domiciled in jurisdictions where online auctions are prohibited are not allowed to participate in auctions either as Buyers or Sellers on the Site. Some Sellers may require you to provide valid credit card information in order to participate in their auction.
Compliance with Laws and Policies.
The Site may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Site and any transactions conducted on or through the Site.
OutBid may have other policies regarding the use of the Site and/or Service, such as acceptable use policies. You are responsible for abiding by any such policies that OutBid advises you are applicable to use of the Site or Service.
Place of Contract; Disputes.
The contract between the Buyer and the Seller will be completed when the sale period for the Good ends, at which point the Buyer who agreed to pay the listed asking price or submitted the highest valid bid, received through the Service, will be the Buyer. While OutBid is located in New Zealand, the sale between Buyer and Seller is presumed to take place in the country and/or state where the Seller is located. OutBid reserves the right to reject any bid or offer to buy at any time. In the event of identical bids or offers, the first bid or offer received by OutBid will take precedence. In the event of any dispute between potential Buyers, or in the event of doubt as to the validity of any bid or offer, OutBid will have the final discretion to determine the successful Buyer. If any dispute concerning bidding or any offer to purchase arises after the sale, OutBid’s determination is conclusive. Please note that OutBid is not responsible for errors or omissions in connection with the transmission of bids or offers to the Site (including without limitation your receipt of emails regarding the status of a bid, offer, Good or purchase), nor for any on-line or other charges you may incur in connection with participating in a sale.
Buyers must only bid using: (i) their own account or (ii) a third-party’s account who has given that Buyer express permission to use their account. You may not register under a false name or use an invalid or unauthorised credit card. You may not make bids under a false name or any account that is not assigned to you, impersonate any participant, or use another participant’s password(s) or engage in any other fraudulent conduct or conduct intended to interfere with the orderly conduct of business on this Site. Any unauthorised or fraudulent use of a third party’s account is prohibited and is a breach of this Agreement. OutBid may report fraudulent use of account and other violations of this Agreement to law enforcement, and OutBid may cooperate to ensure that violators are prosecuted to the fullest extent of the law.
At the Seller’s discretion, Goods offered on this Site may subject to a reserve, which is the confidential minimum price established by the Seller below which such Good will not be sold. The Seller is not obligated to sell a Good unless the reserve price is met. A Good will be withdrawn from sale if no bid or offer equal to or above the confidential reserve for that Good is received during the sale period. OutBid shall have the right to complete any transaction in accordance with these provisions so long as the sale price exceeds the reserve.
Disclaimer of Warranties.
THE SITE AND ALL SERVICES PROVIDED ON THE SITE AND ALL GOODS OFFERED FOR SALE THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OutBid MAKES NO AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, THE SERVICE, OR ANY GOODS OFFERED ON THE SITE OR ANY TRANSACTIONS THAT MAY BE CONDUCTED ON OR THROUGH THE SITE, INCLUDING WITHOUT LIMITATION:
(i) The implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement;
(ii) That the Site or Service will meet your requirements, will always be available, accessible, uninterrupted, timely, or secure or operate without error;
(iii) Any implied warranty arising from course of dealing or usage of trade;
(iv) Any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence of OutBid. To the full extent permissible under applicable law, OutBid disclaims any and all such warranties;
(v) any representation or warranty regarding any Goods.
Waiver of Claims.
Because OutBid is not responsible for the guarantees provided by a Seller or the descriptions of Goods provided by a Seller, if a dispute arises between one or more participants regarding a Good or its description (including the Seller Guarantee), you release OutBid and its affiliates (and each of their directors, officers, agents and employees) from and hereby irrevocably waive any claims, demands and damages (whether direct, indirect, incidental, punitive or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
You agree to indemnify and hold OutBid, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, arising out of or related to (i) your use of the Service or Site in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and (ii) actual or potential transactions, communications, sales, disputes, interactions, or relationships between you and any other Buyer or Seller.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OutBid AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND (EXCEPT PROVEN DIRECT DAMAGES) INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, REVENUES OR DATA), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, THE SITE, THE SERVICE, THE INABILITY TO USE THE SITE OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO ON OR THROUGH THE SITE. OutBid's TOTAL, CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO $100. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. OutBid SHALL HAVE NO LIABILITY FOR ERRORS APPEARING ON TV DISPLAY OR SITE; THE OutBid’s COMPUTER LOG SHALL CONSTITUTE THE OFFICIAL RECORD OF ALL TRANSACTIONS, AND ALL DECISIONS BASED ON SUCH LOG SHALL BE FINAL.
Notice of Intellectual Goods Rights.
If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, please provide us with the following information: (i) an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Site or Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf.
OutBid, in its sole discretion, may terminate the right of any user to participate in sales conducted on this Site or to access the Site without notice for any reason.
No Agency; Third-Party Beneficiary.
OutBid is not the agent, fiduciary, trustee, partner or other representative of any Buyer or Seller. Nothing expressed or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of OutBid and relying Buyers or Sellers.
If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect the validity and enforceability of any remaining provisions. OutBid’s failure to exercise or forbearance from exercising any rights or remedies, or failure to enforce or forbearance from enforcing, the strict performance of any provision of this Agreement, will not constitute a waiver of OutBid’s right to exercise such rights or remedies or enforce such provision or any other provisions of this Agreement in that or any other instance. Any waiver of any provision of this Agreement by OutBid must be made in writing and signed by an authorised representative of OutBid specifically referencing this Agreement and the provision to be waived.
This Agreement constitutes the entire agreement between OutBid and the visitors to the Site and users of the Service with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof. Notwithstanding the previous sentence, this Agreement does not supersede any separate written agreement between OutBid and an entity purchasing services or products from OutBid.
For any questions regarding the Terms of Service above, please get in touch with our team.