2010 Taste of the Danforth Auction

OFFICIAL RULES and CONDITIONS of SALE

 

1.       By participating in the 2010 Taste of the Danforth 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 create 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 July 27th, 2010 at 9:00 a.m.. Eastern Daylight Time (“EDT”) and concludes on August 3rd, 2010 (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. Only registered motor vehicle dealers will be permitted to sell vehicles in the Auction.  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 HST 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. With respect to motor vehicles, your Drive Clean certificate (if required) is also extra. In accordance with government regulations, administrative, freight, PDI, green levies and transfer fees are subject to any applicable taxes based on the full Manufacturer’s Suggested Retail Price of the vehicle and not on the amount of the successful bid price.

 

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)    $10.00 for all items with a suggested retail price over $500;

(2)    $5.00 for all items with a suggested retail price between $201 and $500; and

(3)    $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. Bid increments are at the above stated amount (clause 6), or higher.

 

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 highest Maximum Secret SmartBid received for that item will take precedence, with the next tiebreaker being the first Maximum Secret SmartBid received for that item.

 

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.  For items which are vehicles or real estate with a successful bid price of over $5,000, the Auction Committee will provide the Seller with the Buyer’s contact information so that the Seller may contact the Buyer to complete the transaction.  The Buyer shall, within seven (7) business days from the time the Buyer is contacted by the Auction Committee, meet with the Seller, sign the Agreement of Purchase and Sale furnished by the Seller, and make all necessary arrangements for payment of the Purchase Price (including any terms and conditions relating to financing) with the Seller.  For non-vehicle items, if your successful bid amount is greater than $5,000, an Auction Committee representative will contact you via telephone to confirm method of payment.

 

If the Buyer fails to meet with the Seller and/or sign the Agreement of Purchase and/or make all necessary arrangements for payment of the Total Purchase Price within the required time,  the Seller and the Auction Committee reserve the right to disqualify that Buyer (who shall have no further recourse).  The Auction Committee may then deem the next highest bidder to be the Buyer.

 

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.