Sale agreement for excess inventory
Last Updated: August 16, 2019
Under this agreement, Transform Innovel Solutions LLC ("Innovel") is selling excess merchandise inventory from and on behalf of its affiliates including, Transform Sr LLC ("Sears") and Transform Km LLC ("Kmart") (such inventory referred to as “excess inventory”).
- Payment Terms. Purchaser shall make all payments for the excess inventory to "Transform Innovel Solutions LLC" by wire Transfer or bank certified check (with Innovel's prior approval). Cash payments are not accepted.
- Price, Payment and Delivery. Merchandise will be sold in accordance with the auction process set forth on the Site. All sales are final. No return or refunds are allowed. Merchandise is sold is subject to up to 5% quantity variance per order. Buyer must notify Seller in writing of any merchandise that is delivered with a above and beyond the 5% order variance. Buyer shall have no recourse for discrepancies below 5% variance or for discrepancies not noticed pursuant to this Section 2 within 14 business days. If seller, acting reasonably and in good faith, agrees that an under-delivery and/or damage has occurred greater than 5%, based on the listed retail value of the auction, seller will reimburse you in an amount equal to the approved discrepancy. By way of example, if Buyer wins an auction and pays a winning bid of $1,000, and the shipment is missing an item that is 10% of the value of the auction, seller will issue Buyer a reimbursement in the amount of $100 (i.e., 10% of the of the listed retail value of the auction). Such reimbursement may be in the form of an offset against any amount you may owe to seller or a credit to your B-Stock account. Following the fourteen (14) business day inspection period, you shall no longer have the right to claim any reimbursement for under-delivery/damage. Buyer shall be responsible for payment of the purchase price, shipping, storage and handling costs, all applicable taxes and any other expenses incurred in connection with its purchases. Merchandise is sold as-is, where-is, carriage terms F.O.B. Seller’s designated distribution facility. Risk of loss and title shall pass to Buyer upon delivery to Buyer’s carrier. Buyer will be solely responsible for all costs of transportation and insurance from Seller’s distribution center.
- All sales "as is". Purchaser acknowledges that all excess inventory purchased under this agreement is purchased "as is", "where is", without any express or implied warranty of any nature or type whatsoever, except warranty of title, and particularly without any warranties of merchantability or fitness for a particular purpose, such warranties being expressly disclaimed. Furthermore, Innovel, Sears and Kmart disclaim any liability for any special, exemplary, indirect, incidental, or consequential damages, as a result of the use, sale, or purchase of any of the excess inventory, or the refusal of Innovel, Sears and Kmart to sell to purchaser under this agreement.
- Term and Termination. The term of this agreement starts on the effective date stated below and ends one year thereafter. This agreement may be terminated immediately by Innovel with or without cause by providing immediate oral notice to purchaser followed by written notice. No reasons for termination need to be specified.
- Taxes. Purchaser shall pay all federal, state and local taxes, tariffs, duties and expenses that result from any sales transactions resulting from this agreement.
- Title and Risk of Loss. Title and risk of loss will pass to purchaser at Innovel's facility. Purchaser shall, at its own expense, arrange for shipping and transportation of excess inventory from Innovel's facility including, without limitation, payment of all transportation and related costs, shipping document preparation, proper packaging and labeling, and compliance with all laws, rules and regulations, purchaser must give any claim for shortage of excess inventory shipped no more than 30 days after the date of shipment. Innovel will have no responsibilities or liability for any such claims received after such 30 day period.
- Subsequent sale of excess inventory. Purchaser may sell excess inventory to unrelated third parties if purchaser has first complied with sections 1, 2, 4, 5 and 8 of this agreement purchaser shall not sell in north america any non demarked proprietary brand excess inventory and any other excess inventory similarly restricted by Innovel. Purchaser shall provide Innovel the customs declaration, port of departure, and port of arrival information for any overseas sales on request. Prior to any subsequent sale of excess inventory, purchaser shall remove and destroy any written warranties packaged with the excess inventory prior to any resale. Excess inventory are subject to applicable export regulation of the united states, including, without limitation, the U.S. export administration regulations. Purchaser agrees to comply with such laws and regulations as well as other applicable import/export laws or regulations.
- Non-exclusive. Purchaser acknowledges and agrees that any purchase of excess inventory is on a nonexclusive basis and subject to availability. Purchaser acknowledges that Innovel is not required to sell any minimum quantities of excess inventory to purchaser and purchaser is not required to purchase any minimum quantities of excess inventory from Innovel. Nothing in the agreement creates any obligation or liability upon Innovel to offer any particular kinds, quantities, or quality of merchandise for sale to purchaser. Consideration for this agreement is in Innovel's promise to offer to sell at least $100 worth of excess inventory to purchaser, and purchaser's promise to offer to purchase at least $100 worth of excess inventory from Innovel.
- Defacing. Purchaser agrees to remove and obliterate any and all brands, trademarks, trade names, nomenclature, plates, identification tags, sales tickets, model numbers, item numbers, skus, documents, labels, legends, stencil information, manuals, instructions, price tags, or any other materials or information on the packaging, inside the packaging or on excess inventory which in any way identify Sears or Kmart, or any affiliated or related company of Sears or Kmart, or any licensed name (e.g., Jaclyn Smith, Joe Boxer, etc.) (collectively referred to as the "Marks") with the excess inventory. Purchaser may not use Sears' name or Marks, directly or indirectly, in any signs, advertisement, apparel, trucks, trailers, equipment, or other printed material in connection with such sale. Purchaser agrees that its breach of this section 8 would cause irreparable harm to Innovel and Sears and that money damages would be inadequate to compensate its loss. Purchaser agrees that Innovel is entitled to injunctive relief, in addition to any other available remedies at law or in equity, from any such breach.
- Penalty. If purchaser is found to have sold or conveyed excess inventory without complying with section 8, Innovel will be entitled to recover from purchaser liquidated damages in an amount up to $10,000.00 for each occurrence, reflecting the damage to the trademarks of Innovel's affiliates, and the difficulty and burden in proving and calculating damages that result from such a violation.
- Indemnity. Purchaser shall indemnify, hold harmless and defend Innovel, Sears and Kmart and any affiliated or related Company and their respective present, former and future shareholders, employees, officers and directors, and any party for (a) any liability, loss or damage whatsoever, including attomey's fees, expenses and court costs, resulting from any claims, suits (fine, settlement, penalty and expense) actions, or charges against Innovel, Sears and Kmart, and any affiliated or related company as a result of or in connection with either the purchase, use, or resale of the excess inventory or arising from this agreement; (b) product liability claims based on sale, purchase, or use of excess inventory; (c) any breach of this agreement by purchaser, (d) failure to comply with any and all applicable laws, regulations and statutes, and (e) any breach of a third party sales agreement by purchaser or the third party. Purchaser shall procure and maintain all insurance as is needed to cover purchaser's liability under this agreement and to comply with applicable laws.
- Publicity. Purchaser shall not advertise the excess inventory using any private label name, trademark, or logo owned or Licensed by Sears or Kmart or its affiliates, and nothing in this agreement will be construed as granting any such right or license to purchaser.
- Breach. If purchaser violates these terms and conditions, Innovel will be entitled to: (a) seek both legal and equitable relief, (b) Recover all reasonable attorneys' fees, costs and expenses, and (c) bar purchaser from further transactions with Innovel, its affiliates, and its third party liquidation contractors.
- Purchaser shall maintain in strict confidence and not disclose to any third parties, any information relating to the price and other terms related to the purchase of excess inventory including this agreement.
- This agreement and all sales made under this agreement are governed by illinois law, without regard to conflict of law or other legal principles (of Illinois or any other jurisdiction) that would apply the laws of any jurisdiction other than Illinois. Purchaser may not assign this agreement without the express, written permission of Innovel, and any attempted assignment in violation of this provision is void.
Innovel, Sears or Kmart will not be liable for any delay in or the impairment of performance resulting in whole or in part by acts of god, labor disruptions, shortages, inability to produce product, supplies of raw materials, weather conditions, war or any other circumstances or causes beyond the control of Innovel, Sears or Kmart.
The parties agree that this is an arms-length agreement, and that its terms are to be construed with equal bearing on each party.