2010
Omni Jewelcrafters Auction
OFFICIAL
RULES and CONDITIONS of SALE
1.
By participating in the 2010 Omni Jewelcrafters Auction (the “Auction”) through the website
at www.starauctions.ca (the “Website”), you acknowledge that you
have read, understand and accept these Official Rules and Conditions of Sale of
the Auction. Please note that all transactions conducted through the Auction or
the Website are governed by the Official Rules and
Conditions of Sale herein. The Official Rules and Conditions of Sale also form
a legal agreement between the buyer, being a bidder who has bid the highest
price for an item and otherwise met any reserve price thresholds, (“Buyer”) and
the seller, the vendor of an item (“Seller”).
The Sellers are the sole vendors of items in the Auction. The Auction is administered by Toronto Star
Newspapers Limited (“Toronto Star”). At
no time is Toronto Star a Seller of any item in the Auction (unless
specifically indicated) and the Website is merely a venue for Sellers to offer
items for sale by online auction.
2.
The Auction is open to persons 18 years of age and older who are residents of Ontario. Employees
and representatives of Sellers participating in the Auction, their immediate
families and those with whom such employees and representatives are domiciled
may bid, but not on items that are provided by the Seller with which they are
associated. You must first register with
the Website before you can bid. Upon
registration, a user will receive a user ID and password. Each member is entirely responsible for
maintaining the confidentiality of his or her user ID and password. Furthermore, members are entirely responsible
for any and all activities which occur under his or her user ID and password. A member must immediately notify Toronto Star
of any unauthorized use of his or her user ID and password.
3.The Auction commences November 16th,
2010 at 9:00 a.m. Eastern Standard Time (“EST”)
and concludes on November 24th, 2010 at 4 p.m. EST (the
“Auction Period”), subject to any extension in the event the auto bid extend
feature on the Website is activated. The
auto bid extend feature works to ensure that bidders will always have a chance
to challenge bids placed when an auction is about to close. When indicated on a listing page, if a bid is
placed during the last five (5) minutes of an auction, the auction will be
automatically extended for an additional five (5) minutes from the time of the
latest bid. The Auction will close once
all bidding activity has stopped for a period of five (5) minutes.
4.
Each bidder will be required to provide a valid
credit card (Visa, MasterCard or American Express only) prior to placing any
bid on an Auction item on the Website. No amount will actually be charged to
the credit card during the bidding process.
All credit card authorizations will be valid for the Auction Period. Please note: the credit card of the successful
bidder will be charged automatically for items where the successful bid price
is $5,000.00 or less (further details on payment terms and conditions are set
out below).
5. All items to be offered for sale in the
Auction and a detailed description of each item will be posted on the
Website. Toronto Star is not responsible
for the accuracy of the descriptions of the items or the services presented by
the Sellers. Nor does Toronto Star
accept responsibility for, and expressly denies liability of, any warranty or
description stated therein. Statements
made by Sellers are not to be construed as co-joined by Toronto Star in any
implicit or explicit approval, sponsorship, endorsement or guarantee. The Sellers expressly assume all risk and
liability arising from the offer for sale, the actual sale and the delivery.
6. The Auction employs a proxy bidding system operated
by Toronto Star’s computer system (the "Computer System")
administered by employees of Toronto Star (the “Auction Committee”). Through
the proxy bidding process, you tell the Auction Committee the maximum amount
you are willing to bid for an item (your “Maximum
Secret SmartBid”). Only you and the
Auction Committee know your Maximum Secret SmartBid. If you are the highest bidder for any given
item at the end of the Auction Period, you will be required to pay GST, PST,
and any other applicable taxes or fees required to be collected and remitted by
the Seller pursuant to applicable law in addition to the amount you bid, plus
any administration fees or other charges to the Seller as listed in the
description of the item.
The
Computer System enters your bid into the Computer System. The
Computer System then PLACES BIDS ON YOUR BEHALF at the LOWEST LEVEL
POSSIBLE to make you the high bidder
for the item. For example, if someone outbids you, the Computer System
will automatically place a bid on your behalf that is higher than your previous
bid by:
(1)
$100.00 for all items with a suggested retail price
between $10,000 and $49,999;
(2)
$50.00 for all items with a suggested retail price
between $5,000 and $9,999;
(3)
$25.00 for all items with a suggested retail price
between $1,000 and $4,999;
(4)
$10.00 for all items with a suggested retail price
between $201 and $999; and
(5)
$1.00 for all items with a suggested retail price of
$200 and lower.
The
Computer System will continue to process bids in this fashion unless/until one
of three things happens:
(1)
No other bids are higher than yours;
(2)
Your Maximum Secret SmartBid is reached; or
(3)
You are declared the successful bidder at the end of
the Auction Period.
In the
event that another bidder exceeds your Maximum Secret SmartBid, you will have
to submit another bid with a higher maximum in order to continue your
participation in the Auction. You can
determine your bid standing and whether your Maximum Secret SmartBid has been
exceeded by monitoring your status on the Website.
For most
items, the Seller will set and the Auction Committee will show online on the
Website the lowest permissible opening bid (the “Opening Bid Amount”) for each
item. In the event that your Maximum Secret SmartBid is the first to equal or
exceed the Opening Bid Amount, the Computer System will automatically adjust
your opening bid to the Opening Bid Amount.
In the event that there are no bids for an item equal to or greater than
the Opening Bid Amount when the Auction ends, the item will not be sold. The
Opening Bid Amounts are generally 50% of the Seller’s price for the items(s).
The Opening Bid Amounts will be rounded off to the nearest whole dollar. The
Opening Bid Amounts are fixed values that have been set by the Sellers and will
not be altered after bidding is under way.
The
starting price status update may indicate one of two values:
(1)
NOT YET MET:
The value of the current high bid is less than the Opening Bid Amount;
or
(2)
MET: The
value of the current high bid is at least the Opening Bid Amount. The item will
be sold to the highest bidder at Auction Close.
This
proxy procedure relieves you of the hassle of submitting new bids whenever you
are outbid and of constantly monitoring the Auction.
Note: The
Maximum Secret SmartBid that you submit may not necessarily be the price you
pay if you are the successful bidder – you may pay less, but never more. Choose your maximum carefully, as you will be
legally required to pay that price (plus any applicable taxes, fees and
additional charges) if it is the final highest bid. The advantage of the
Maximum Secret SmartBid system is that the system will bid on your behalf, all
the way up to your Maximum Secret SmartBid price if necessary. Once the lowest successful bid price rises
above your Maximum Secret Smartbid Price, you are out of the running for the
items offered and will be required to go back into the system to raise your
Maximum Secret SmartBid if you still choose to continue bidding on the item(s).
7.
Dutch Auction Items:
A Dutch
Auction occurs when multiple, identical items are offered for sale within a
single auction listing. Using the
Maximum Secret SmartBid proxy bidding system, you simply enter your Maximum
Secret SmartBid amount (the most you are willing to pay) plus your desired
quantity. Each time you increase your
Maximum Secret SmartBid you will need to re-enter the total quantity of items
desired.
At
Auction Close, the highest successful bidders will purchase the items at the
Lowest Successful Price. “Lowest
Successful Price” means the lowest bid that qualifies to win an item(s) at
Auction Close, within the maximum quantity available.
This
means that if there are 10 highest bidders that range from $60 to $85, everyone
pays $60. In the case where a successful
bidder has requested a quantity that exceeds the amount available, the
successful bidder’s request will be filled to the extent that there is quantity
available. This means that in the case
above, if the successful bidder with the Lowest Successful Price requested 5 of
the quantity offered, and after the other nine successful bidders’ requests
were filled, there was only one item left, the lowest successful bidder gets
only one item. This is called a partial
fill. In the case where two bidders have
bid the Lowest Successful Price of $60, which is possible in a Dutch Auction, the bidder who bid $60 first will get priority over
the second bidder, and will get a full or partial fill depending on quantities
available.
8. All bid amounts must be in Canadian dollars.
9. Bidding is internet
only and done exclusively through the Website at www.starauctions.ca. Bidding
on-line is as easy as…
a)
Review and accept the Official Rules and Conditions
of Sale for the Auction;
b)
Select the item you want to bid on;
c)
Ensure that you know and understand all details and
financing related to the item(s) prior to bidding;
d)
Click on “Bid On This Item”;
e)
If you are a First Time Bidder, click on “Create An
Account” (where you must enter your real name, telephone number, address, place
of residence and credit card information);
f)
Follow on-screen instructions;
g)
Click “Submit”;
h)
You now have a user name and password and won’t have
to put in your personal information again.
You can just get right to bidding!;
i)
Now enter your Maximum Secret SmartBid on your
chosen item; and
j)
Click “Submit”.
Be sure
you know your Maximum Secret SmartBid prior to submission. If you submit a
Maximum Secret SmartBid against yourself, both bids will be considered valid
regardless of the fact that you submitted both bids.
10. The Computer System will administer the proxy
bidding process based on the Maximum Secret SmartBids, Opening Bid Amounts,
starting prices and incremental bidding amounts, and determine
the highest bid for each item.
11. In order to allow bidders to monitor high bids
on each item on the Website, a bidder identification code will be associated
with each published bid.
12. In the event that the
highest bidders for an item are tied during the Auction Period, all bids will be
valid and considered tied. However, if a
tie occurs at the close of the Auction, the first Maximum Secret SmartBid
received for that item will take precedence.
13. In the event of a dispute between bidders or in
the event of doubt as to the validity of any bid, the Auction Committee will
have the final discretion to determine the successful bidder.
14. If you are the highest bidder and otherwise
meet any Reserve Price thresholds, you are obligated to complete the
transaction with the Seller and to pay the price you bid for the item, together
with all applicable taxes, shipping fees and any other fees associated with the
item. The Sellers set the shipping
charges and terms of shipping. Toronto
Star bears no responsibility for late, lost, misdirected or undelivered items
or items which are damaged before, during or after shipping.
You
should also know that bidding on an item is an irrevocable offer to buy the
item at the price bid and your confirmed price can only be retracted if you
have submitted your formal bid retraction request to our customer service not less than 24 hours
before the Auction closes and only under one or more of the following
circumstances:
- You
made a typographical error when placing a bid amount.
- New
item information added by the Seller during the Auction changed your
understanding of the item for which your bid was placed.
- You
cannot reach the Seller via email or your question to the Seller is returned as
undeliverable or the Seller responds with a request to sell to you directly
offline.
Please
see our FAQS for an explanation of how to retract a confirmed bid.
You
cannot retract a bid if:
- You
have placed bids on a similar item.
- You
have placed a bid on a Dutch Auction (please see these
terms and conditions and our FAQs for
an explanation of a Dutch Auction).
- You
have changed your mind.
- You
state that you cannot pay for the item.
- You
submit a bid retraction less than 24 hours before the close of the Auction.
15. At the close of the Auction, Buyers will be notified by
email by the Auction Committee. If the
Successful Bid Price for any item is more than $5,000, the Auction Committee
will notify the Buyers of their successful bid(s) by email and/or at the
telephone number(s) provided at time of registration within three (3) business
days of the end date of the Auction. If
a Buyer cannot be contacted by telephone or email within two (2) days of
contact first being initiated by the Auction Committee, Toronto Star reserves
the right to disqualify that Buyer (who shall have no further recourse) and
deem the next highest bidder to be the Buyer.
16. If your
successful bid amount is greater than $5,000, an Auction Committee
representative will contact you via telephone to confirm method of payment.
17. In each case, the Buyer may be required to
sign a standard waiver/product release form releasing Toronto Star and its
parent, subsidiaries, affiliates and related companies, employees, directors,
officers, agents and assigns from and against all actions, causes of action,
claims, demands, liabilities and damages whatsoever, including legal fees and
expenses, including but not limited to claims based on negligence, breach of
contract and fundamental breach and liability for physical injury, death or
property damage which the Buyer or any of his/her administrators, heirs,
successors or assigns might have or could have, by reason of or arising out of
the Buyer’s participation in the Auction or in connection with the receipt
and/or use of the item. This waiver/product
release form must be signed prior to closing the transaction and receiving any
certificate of purchase. Upon receipt by the Auction Committee of the
waiver/product release form, the Auction Committee will issue a certificate of
purchase. The Auction Committee will not issue merchandise receipts. Toronto Star is not the seller of any items
and is not responsible in any manner for the items or the conduct of the
Seller.
18. If the Buyer fails to comply with all
conditions of sale, including the obligation to make full payment of the total
purchase price within the time limits and terms set out herein, in addition to
all other remedies available to the Toronto Star and the Seller, the Seller may
cancel the sale and re-offer the item or sell it privately and hold the Buyer
liable for any costs or losses associated therewith.
19. It is the
Seller’s and the Buyer’s responsibility to obtain any applicable or necessary
licences, registrations, or any other form of approval for the items sold and
to pay any fees associated therewith.
20. All delivery or pick-up arrangements, if
applicable, must be made with the Seller and must be completed within six
months of the Auction Close, unless otherwise specified. All items will be in
stock at time of Auction Close and held in reserve for Buyers.
21. Should the
Buyer, in his/her discretion, choose to purchase any additional items and/or
services from the Seller, such as an extended warranty or rust-proofing (in the
case of motor vehicles), then the cost of such services shall be in addition to
the total purchase price for the item and shall be payable directly to the
Seller.
22. All decisions of
the Auction Committee are final and binding.
23. Toronto Star is
committed to protecting your privacy. Personal
information collected from you in the course of the Auction will be used by
Toronto Star or its service providers for the purposes of administering the
Auction or as required or permitted by law.
Such personal information may be disclosed to any Seller whose item(s)
you purchase for the purposes of completing the sale or may be disclosed as
required or permitted by law. You may
view Toronto Star’s privacy code in full on this Website. Toronto Star is not responsible for the
collection, use or disclosure of personal information by Sellers.
24. Toronto Star is
not responsible for any bids that are lost, misdirected, incomplete or
illegible, or for failed, partial or garbled computer transmissions, or for
technical failures of any kind including, but not limited to, malfunctioning of
any network, hardware or software, which may limit a bidder’s ability to
participate in the Auction. Proof of sending will not be proof of receipt by
Toronto Star. Toronto Star is not responsible for any on-line or other charges you
may incur in connection with participating in the Auction. Toronto Star is not
responsible for the availability or content of any other website to which the
Website is linked.
25. Toronto Star is
responsible only for the administration of the Auction. The Seller’s suggested
retail price and the Opening Bid Amount are set by the Seller. You are welcome and encouraged to view
Auction items at the Sellers’ premises during the Auction Period and to ensure
that you are satisfied with price and quality of the items prior to placing a
bid on said items.
26. Since Toronto
Star is not the Seller of the items in the Auction, Toronto Star makes no
representations or warranties and there are no conditions of any kind, express
or implied, statutory or otherwise, with respect to the Website, the items
offered through the Auction (including motor vehicles), or any transactions
conducted through the auction or the Website, including without limitation:
a)
implied warranties of merchantability, fitness for a
particular purpose, title and non-infringement;
b)
any implied warranty arising from course of dealing
or usage of trade;
c)
any obligation, liability, right, claim or remedy in
tort, whether or not arising from the negligence of Toronto Star; and
d)
that the
Website will meet your requirements, always be available, accessible, accurate
or secure.
27. Toronto Star and its affiliates will not be
liable for any damages of any kind including without limitation direct,
indirect, incidental, punitive and consequential damages arising out of or in
connection with participation in the Auction or use of the Website or any
item(s) purchased or obtained through the Auction or the Website.
28. All content on this Website is the property of
Toronto Star. Toronto Star grants a limited licence to each user of the Website
to make personal use only of the Website itself. Any other use, including the
reproduction, modification, distribution, transmission, or display of the
content on the Website is strictly prohibited.
29. Use of any method, mechanism, device, or
software affecting the proper functioning of the Auction or the Website is
strictly prohibited. Toronto Star may, in its sole discretion and without
notice, terminate the right of any participant in the Auction or user of the
Website to participate in the Auction or use the Website.
30. Toronto Star reserves the right, in its sole
discretion and without notice, to extend, terminate or modify the Auction
and/or Official Rules and Conditions of Sale at any time. Toronto Star shall
not be liable to any user, member, Seller or Buyer, in tort or in contract,
should Toronto Star exercise its right to modify or discontinue this Website or
any auction.
31. The Auction is governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. By participating in
the Auction, you consent to the exclusive jurisdiction of the courts of
Ontario, Canada.
32. You agree to comply with all applicable laws,
statutes and regulations regarding participation in the Auction, use of the
Website, and any transactions conducted through the Auction and the Website.
33.
Disclaimer of Warranties: YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE
IS AT YOUR SOLE RISK. THE WEBSITE IS
PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS. TORONTO STAR EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT. TORONTO STAR MAKES
NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE WEBSITE
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. TORONTO STAR MAKES NO WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY
OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE OR THAT DEFECTS
IN THE SOFTWARE WILL BE CORRECTED.
TORONTO STAR MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED
OR OBTAINED THROUGH THIS WEBSITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE
WEBSITE. USERS ARE RESPONSIBLE FOR
MAKING ARRANGEMENTS FOR PAYMENT AND SHIPPING OF ITEMS. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM TORONTO STAR OR
THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
34.
Limitation of Liability: NEITHER TORONTO STAR NOR TRUITION INC., THE
COMPANY WHICH DESIGNED THE WEBSITE BASED ON TRUITION INC.’S PROPRIETARY
SOFTWARE AND TECHNOLOGY, SHALL IN ANY WAY BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE
INABILITY TO USE THE WEBSITE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, OR
MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THIS WEBSITE OR
ALTERATION OF USER’S TRANSMISSIONS OR DATA, INLCUDING BUT NOT LIMITED TO
DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE DAMAGES, EVEN IF
TORONTO STAR OR TRUITION INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
35.
Release and Indemnification: You hereby waive, release, forgive,
discharge and relinquish any and all claims that you may have against Toronto
Star, Truition Inc., their affiliates, subsidiaries, parents, shareholders,
directors, officers, employees, agents and representatives which are connected
with, relate to or are incidental to any transaction. You agree to indemnify and hold Toronto Star,
Truition Inc., their affiliates, subsidiaries, parents, shareholders, directors,
officers, employees, agents and representatives harmless from and against any
claim or demand, including reasonable attorneys’ fees, made by any third party
due to or arising out of your breach of these terms of use or your violation of
any law or the rights of a third party.