Terms of Service
Any person or entity who wishes to sell goods in the 6fusion Marketplace must accept these terms and conditions, without change.
Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not use the Site or Services. By registering for and using the Site and Services, you represent to 6fusion that you are not a minor, are at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law. To register and use the Site and Services, you must provide your real name, address, phone number and e-mail address, along with other information that may be required.
6fusion’s Site provides a platform for buyers (individually, a “Buyer,” or collectively the “Buyers”) and sellers (individually, a “Seller,” or collectively the “Sellers”) to sell and buy IT hardware and other equipment, whether new, used, repaired or refurbished (“Asset” or “Assets”). 6fusion is neither the buyer nor the seller of the Assets, but rather acts as an intermediary between the Buyer and Seller, providing a marketplace service for the same. By listing Assets on the Site, the Seller agrees to sell the Assets to a Buyer in accordance with the terms below. Unless otherwise agreed with 6fusion, Seller shall sell, convey, transfer, assign, and deliver to the Buyer, and Buyer shall purchase from the Seller, free and clear of all liens, mortgages, pledges, easements, conditional sale or other title retention agreements, defects in title, covenants or other restrictions of any kind (“Encumbrances”), Assets posted on the Site as available for sale.
Description of Marketplace Auction Process
6fusion is not a party to the actual transaction between Buyers and Sellers in the 6fusion Marketplace and 6fusion does not take legal ownership of Assets. 6fusion has no control over and does not guarantee the quality, safety or legality of Assets advertised, the truth or accuracy of a Seller’s content or listings, the ability of a Seller to sell Assets, the ability of a Buyer to pay for Assets, or that a Buyer or Seller will actually complete a transaction.
The Site and Services allow Sellers to make Assets available to be sold via auction to Buyers. 6fusion will make the Assets available for bidding to Buyers, collect the purchase price form the winning Buyer and will pay the Seller the proceeds of the sale (less applicable fees).
When Seller lists Assets on the 6fusion Marketplace, the listing will be posted on the Site and can be viewed by 6fusion’s users.
Each time the Seller desires to use the Services for the sale of Assets, the Seller shall complete an online form (available through the Site) (the “Pick-Up Form”) that provides various information, including a description of the Assets, the kWAC Capacity score, the services that are needed with respect to the Assets prior to putting such Assets up for auction through the Services.
The Pick-Up Form will:
- Detail the various services required (logistics, aftermarket refurbishment or repair), which will be performed by various Third Party Providers.
- Initiate the Services on behalf of the Seller. No Services will be provided in the event the Pick-Up Form is not complete.
All Assets sold as one lot at the same time. Prior to submitting the Pick-Up Form, 6fusion will provide a kWAC Capacity score to the Seller indicating the maximum theoretical capacity of the Asset using the Workload Allocation Cube standard and a recommendation of the optimal software or application pattern best suited for the Assets.
The kWAC Capacity score may be used by a third party to establish consumption billing services, provided the third party has entered into a separate agreement with 6fusion authorizing said use.
Determination of Equipment Inventory and Condition
In connection with submitting a Pick-Up Order, and by making any Asset available for sale via the Service, a Seller represents, warrants, covenants and agrees that (a) the Seller owns all title to the Assets free and clear of all Encumbrances, and has all necessary permissions, releases, rights or licenses to make the Assets available for sale (and allow 6fusion to perform its obligations) through the Service; (b) the Seller will provide a complete and accurate list and description of all Assets (including the condition thereof), (c) the Seller will deliver all of the Assets listed on the pickup date specified via the Services; (d) all Assets are functional and have not been materially damaged unless explicitly noted in the condition in the Pickup Form; and (e) (1) all Assets are complete and do not contain any missing parts (e.g. all hard-drives must be present, and all memory must be installed and intact); or (2) to the extent any Asset is incomplete, the Seller will provide an accurate description of how it is incomplete (e.g., which parts are missing).
In the event a Seller desires to modify the Services (as identified in the Pick-Up Form), the Seller shall notify 6fusion and request a change order. Any such changes shall be subject to agreement by 6fusion, and may include additional fees or charges owed by the Seller. Once the bidding process has begun with respect to the Assets, no further changes are permitted.
All hard drives included within the Assets must be wiped by an ITAD provider approved by 6fusion and in accordance with DoD 5220.22 prior to the sale. Any hard drives that are not functional or cannot be wiped in accordance with DoD 5220.22 will be shredded or punctured and degaussed. Destroyed drives will not be included in the final list of Assets.
Following the acceptance of the Pick-Up Form by 6fusion, 6fusion shall arrange for the various Services requested on the Pick-Up Form to be initiated.
Once the Pick-Up Form has been accepted by 6fusion, a Seller may not subsequently choose to make the Assets unavailable, remove any Assets once it has been offered for sale, or otherwise back out of any sale.
In the event 6fusion or its aftermarket services auditor determines that the Assets are counterfeit or stolen, 6fusion reserves the right to notify the applicable governmental authorities and cooperate with respect to any investigation.
Third Party Services
Various services to be performed in connection with the Services offered are provided by third-party providers engaged by 6fusion, including logistic providers, data center operators, after-market services providers/auditors and OEM-certifiers (“Third Party Providers”). Except for written warranties provided by such Third Party Providers in connection with the description of the Assets, the services provided by the Third Party Providers is on an as is basis.
6fusion has no control over and does not guarantee the quality, safety or legality of Assets advertised, the truth or accuracy of a Seller’s content or listings, the ability of a Seller to sell Assets, the ability of a Buyer to pay for Assets, or that a Buyer or Seller will actually complete a transaction. To the extent that the sale of Assets by 6fusion is advertised or specified as to be subject to a refurbishment warranty or manufacturer’s warranty (collectively, “New Warranty”), then the Assets will be subject to the New Warranty, but 6fusion shall not be responsible for the terms of the New Warranty or for any payments thereunder, which shall be an undertaking between the Buyer and the issuer of the New Warranty.
Use of Services
You may use the Services only for lawful purposes. All rights, title and interest in and to the Services will remain with and belong exclusively to 6fusion. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party; (b) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services, or (c) modify, adapt or hack the Services to, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies or other notices 6fusion provides you or publishes in connection with the Services, and you shall promptly notify 6fusion if you learn of a security breach related to the Services.
Termination of Accounts
You may terminate your account at any time in accordance with the procedures set forth on the Site. 6fusion reserves the right to (i) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (ii) refuse any and all current and future use of the Services, suspend or terminate your account (any part thereof) or use of the Services if 6fusion believes that you have violated this Agreement. 6fusion shall not be liable to you or any third party for any modification, suspension or discontinuation of the Services. 6fusion will use good faith efforts to contact you to warn you prior to suspension or termination of your account by 6fusion. All accrued rights to payment and this Agreement shall survive termination of your account. In the event your account is terminated, 6fusion will arrange for any Asset a Seller has pending for sale to be either returned to the Seller or permit the sale to be completed and pay the Seller proceeds thereof as contemplated by this Agreement.
Reservation of Rights
6fusion retains the right, but does not have the obligation, to immediately halt any sale, prevent or restrict access to the Site or the Services or take any other action, including but not limited to canceling any affected orders, in case of technical problems; objectionable material; inaccurate listings; typographical errors in a price or listings; inappropriately categorized items; product inaccuracies; unlawful items; procedures, or actions otherwise prohibited by the procedures and guidelines contained on the Site or for any other reason in the sole and absolute discretion of 6fusion, and to correct any inaccurate listing, product inaccuracies, inappropriately categorized items or technical problems on the Site.
Your password may be used only to access the Site, use the Services, electronically sign your transactions and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third-party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised you must change your password.
Access and Interference
The Site contains robot exclusion headers. Much of the information on the Site is updated on a real time basis and is proprietary of or is licensed to 6fusion or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose. Additionally, you agree that you will not: (a) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute or publicly display any content; (c) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (d) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
The Site and Services only may be used for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Services, including in regard to bidding and purchasing Assets. You may not register under a false name or use an invalid or unauthorized credit card. You may not make bids under a false name, impersonate any participant, or use another participant’s password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and 6fusion will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
Without limiting other remedies, 6fusion may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your access to the Site and refuse to provide its Services to you: (a) if you breach this Agreement; (b) if 6fusion is unable to verify or authenticate any information you provide to 6fusion; or (c) if 6fusion believes that your actions may cause legal liability for you, other 6fusion users or 6fusion.
Privacy, Monitoring and Disclosure
Disclosure of Information
As permitted by applicable law, 6fusion also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with information requests, to protect 6fusion’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of 6fusion’s business and systems or other purposes deemed reasonable by 6fusion, 6fusion may access and disclose to governmental authorities any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
TTHE SITE, THE SERVICES AND THE ASSETS ARE PROVIDED ON AN “AS IS” BASIS. YOUR USE OF AND RELIANCE THEREON ARE AT YOUR OWN AND SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, 6FUSION MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES (EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; THE INFORMATION, CONTENT, MATERIALS OR ITEMS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE TIME OF OFFER, LAWFUL TO SELL, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED; ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIALBITY OR OTHERWISE TORT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU OBTAIN FROM 6fusion OR THROUGH THE USE OF SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THE DESCRIPTION OF THE ASSETS, ALL OF THE PURCHASED ASSETS ARE BEING SOLD, CONVEYED, TRANSFERRED, ASSIGNED AND DELIVERED TO BUYER ON AN “AS-IS” BASIS, WITH ALL DEFECTS RELATED THERETO AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. ANY NEW WARRANTY PROVIDED BY A THIRD PARTY PROVIDER WITH RESPECT TO ANY ASSETS NOT BEING PROVIDED BY 6FUSION AND 6FUSION SHALL NOT BE RESPONSIBLE FOR ANY SUCH NEW WARRANTY.
BECAUSE 6FUSION IS NOT THE SELLER IN TRANSACTIONS BETWEEN BUYERS AND SELLERS IN THE 6FUSIONMARKETPLACE, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH OF BUYER AND SELLER RELEASE 6FUSION (AND ITS AFFILIATES, AGENTS, DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES AND THIRD PARTY PROVIDERS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND 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. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF RequisILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, 6FUSION WOULD NOT HAVE AGREED TO PERFORM THE SERVICES.
Limitation of Liability
6FUSION WILL NOT BE LIABLE TO ANY BUYER OR SELLER FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME), ARISING OUT OF THIS AGREEMENT, THE SITE OR THE SERVICES, WHETHER SUCH CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIALBITY OR OTHERWISE, NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF A REMEDY AND EVEN IF AN AUTHORIZED REPRESENTATIVE OF BUYER OR SELLER IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAME.
6FUSION’S LIABILITY TO A BUYER OR SELLER UNDER THIS AGREEMENT, THE SITE AND THE SERVICES SHALL IN NO EVENT EXCEED THE LESSER ONE THOUSAND DOLLARS ($1,000) OR THE AMOUNTS PAID TO 6FUSION BY SUCH BUYER OR SELLER WITH RESPECT TO THE SPECIFIC ASSETS SUBJECT TO THE TRANSACTION. TO THE EXTENT THAT ANY ASSET OR SERVICES IS/ARE PROVIDED HEREUNDER BY THIRD PARTY PROVIDERS PURSUANT TO AN ARRANGEMENT WITH 6FUSION, EXCEPT AS SPECIFICALLY SET FORTH IN THE DESCRIPTION OF THE ASSETS OR ANY NEW WARRANTY, THE DISCLAIMERS AND LIMITATIONS OF 6FUSION’S LIABILITY AS STATED HEREIN SHALL EXTEND FULLY TO SUCH THIRD PARTY PROVIDERS.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD 6fusion AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, EMPLOYEES AND THIRD PARTY PROVIDERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH (A) YOUR BREACH OR FAILURE TO COMPLY WITH THER TERMS OF THIS AGREEMENT; (B) YOUR VIOLATION OF ANY STATE, FEDERAL FOREIGN OR INTERNATIONAL LAWS, CODES OR REGULATIONS; AND/OR (C) YOUR VIOLATION OF ANY THIRD-PARTY’S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS. THIS OBLIGATION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
This Agreement and all of its terms and conditions, and any controversy or claim arising out of or relating to this Agreement, the Site or 6fusion’s Services shall be governed by the laws of the State of North Carolina, without giving effect to any principles of conflicts of laws.
YOU AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OUR SERVICES SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION SHALL BE CONDUCTED IN RALEIGH, NORTH CAROLINA, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF.
Buyer and Seller Disputes
For all transactions subject to the 6fusion Marketplace, because 6fusion is not a party in the actual transaction between Sellers and Buyers and is not the agent of either for any purpose, 6fusion does not have the duty to resolve and will not be involved in resolving any disputes between Buyers and Sellers related to or arising out of any use of the Site, Services or Assets. The Buyer and Seller are unknown counter-parties to one another. The Buyer’s recourse with respect to Assets is subject to a seven (7) day inspection period as described above, and thereafter, any claim a Buyer has with respect to Assets that has been accepted is subject to any warranty that has transferred to Buyer with respect to such Assets, and Buyer shall be responsible for submitted such claim to the applicable party providing such warranty.
6fusion grants a limited license to each participant to make personal use only of the Site and the Services in accordance with this Agreement. This license expressly excludes, without limitation, any reproduction, duplication, sale, resale or other commercial use of the Site and the Services (other than the buying and selling of Assets in accordance with this Agreement), making any derivative of the Site or the Services, the collection and use of participant e-mail addresses or other participant information, ratings or listings, or any data extraction or data mining whatsoever.
6fusion, in its sole discretion, may terminate or modify this Agreement, access to the Site or the Services, or any current transaction immediately without notice for any reason.
If you believe that you have been defamed in some manner by the Site or your own work has been copied in a way that constitutes copyright infringement, please provide 6fusion the following information in writing: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person defamed, along with your address, phone number, and email address; (b) a description of the defamatory material, or the copyrighted work that you believe has been infringed, and a description of where the material that you claim is defamatory or infringing your rights is located on the 6fusion Web site; (c) a statement by you that you have a bona fide, good faith belief that the defamatory activity has occurred or that the use by a third-party of your proprietary rights is not permitted by the copyright owner or by law; and (d) a statement that the information provided is accurate and that under penalty of perjury, you are the allegedly defamed party or the copyright owner or authorized agent on the copyright owner’s or allegedly defamed person’s behalf.
6fusion’s address to receive the foregoing information related to copyright infringement or defamation on its site is: 107 Fayetteville St. Suite 400, Raleigh NC 27601.
No Assignment. You may not assign your account with 6fusion. No Waiver. The failure of 6fusion to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.
Electronic Acknowledgement. You acknowledge that this Agreement is a contract between you and 6fusion, even though it is electronic and is not physically signed by you and 6fusion, and it governs your use of the Service and takes the place of any prior agreements between you and 6fusion.
Unenforceability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.
No Agency; Third-Party Beneficiary. 6fusion is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in 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 6fusion (and its Third Party Providers) and you.
Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
No Waiver. 6fusion’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of 6fusion’s right to subsequently enforce such provision or any other provisions of this Agreement