IN ORDER TO MAKE A CLAIM UNDER THIS BPP, THE BUYER MUST COMPLY WITH THE PROCESS EXPLAINED BELOW COMPLETELY AND IN DETAIL. FAILURE TO COMPLY WITH THE BPP CLAIMS PROCESS WILL RESULT IN A CLAIM BEING DELAYED OR DENIED.
THE COMPENSATION PROVIDED BY THE BUYER’S PROTECTION PROGRAM WITH RESPECT TO CLAIMS BY BUYERS AGAINST SELLERS FOR UNFAIR OR DECEPTIVE ACTS IS LIMITED TO THE PROVISIONS STATED IN SECTION 6 BELOW. THE MAXIMUM BENEFIT UNDER THE PLAN IS A NET OF $400.
1. Purpose of This Buyer’s Protection Program; Relationship of the Parties.
This Buyer’s Protection Program (this “BPP”) is offered by GunBroker.com, LLC as an accommodation to its users to help create a more reliable online marketplace. As such, this BPP provides compensation to eligible Buyers in certain situations in which, through a Seller’s Unfair or Deceptive Acts (as defined below), the Buyer loses money on an attempted or completed purchase on the GunBroker.com Site. Compensation under the BPP is governed by the terms and conditions set out in this document. This BPP is not intended to provide full compensation to Buyer for a Seller’s breach of contract, but merely to provide partial compensation to an eligible Buyer.
The provision of this BPP does not create any fiduciary, agency or similar relationship between GunBroker.com and either Buyer or Seller, nor is any insurer/insured relationship created herewith between GunBroker.com and any other person.
2. Eligibility and Amounts for Which Buyer is Responsible.
This BPP is available solely for transactions where both Buyer and Seller are located within the United States and its Territories. It is subject to the further limitations set forth in Section 6 below.
A Buyer’s maximum recovery on a successful claim under this plan is $400, calculated as follows: This BPP is limited to a loss by Buyer per Item of no more than $500, with Buyer responsible for the first $100 of such $500 amount. This $100 is deducted from any payout to Buyer at the end of a successful Claim Procedure (as set out in Section 5 below) and may be used by GunBroker.com to defray expenses or resources used by GunBroker.com in handling and adjudicating the claim. As a result, a Buyer’s maximum recovery on a successful claim under this BPP is a maximum of $400 for any Item.
3. Definitions .
Unless otherwise defined, capitalized terms used in this Buyer’s Protection Program have the meanings given below:
A. “Auction”: Although transactions on the GunBroker.com Site are referred to universally by Buyers and Sellers as “auctions” and GunBroker.com sometimes uses this terminology, GunBroker.com is not a traditional auctioneer and the transactions on the Site are not “auctions” as defined in Article 2 of the Uniform Commercial Code (as adopted by the states: for example, OCGA §11-2-328 in Georgia). GunBroker.com provides a marketplace where Sellers are able to publish offers to sell and Buyers are able to publish offers to buy. However, goods remain in the hands of the Seller until a contract is made and the purchase is completed. Unlike a traditional auction house, GunBroker.com neither takes possession of the offered Item nor receives any payment from the Buyer on any purchased Items. GunBroker.com does not conduct any financial transactions with either Buyers or Sellers other than those relating to its own services.
B. “Buyer”: the purchaser of an Item on the Site. A Buyer enters into a binding contract to purchase an Item when taking any of the following actions: (i) placing a bid on an Item listed in an Auction within the bidding parameters in the listing for the Item; (ii) clicking “Buy Now” where this option is made available by the Seller to end an Auction early; or (iii) clicking “Buy Now” on a fixed price Item offered in a non-Auction listing. Both (ii) and (iii) above are sometimes referred to as “purchases” in this BPP.
C. “FFL”: the holder of a Federal Firearms License, who performs the transfer of all firearm Items (or other items where mandated by applicable laws in Buyer and Seller’s jurisdictions) from Seller to Buyer after purchase on the Site. When used as third party inspectors under Section 5 below, an FFL acts as an independent contractor, not as the agent of GunBroker.com or any other party.
D. “GunBroker.com”: As used in this BPP, “GunBroker.com” shall encompass any company controlled by, under common control with, or that controls Outdoors Online, LLC dba GunBroker.com, , as well as these companies’ respective officers, directors, agents, employees and advisors. GunBroker.com does not take possession of any of the Items offered for sale or sold on its Site, nor does GunBroker.com hold any funds for either party to the transaction between Buyers and Sellers. GunBroker.com does not certify either to Buyers or to Sellers the legitimacy of any party; nor does GunBroker.com certify the ability or willingness of any Buyer or Seller to complete a sale; nor does GunBroker.com verify the lawfulness of the purchase, sale or transfer of any Item. To the extent that GunBroker.com “verifies” Buyers or Sellers, it only determines that those Buyers and Sellers are persons whose identification can be verified (e.g., that a person with the name provided to GunBroker.com lives at the address provided to GunBroker.com).
GunBroker.com does not represent, promise, warrant or guarantee that either Buyers or Sellers are legitimate, law-abiding, able or willing to fulfill their representations made on the Site, or that the Items advertised are of any particular quality, number, provenance or other material characteristic represented.
Buyers and Sellers on GunBroker.com are responsible for protecting themselves by investigating the persons with whom they are doing business, carefully researching the Items being sold or purchased, and exercising the judgment of a consumer acting reasonably under the circumstances.
E. “Item” means firearms, ammunition and/or other items listed for sale by Sellers on the Site.
F. “Procedures”: In order to fairly administer this BPP, GunBroker.com requires that Buyers and Sellers participate in good faith in the procedures set out here. There are important limitations to the applicability of BPP, including: limitations on the maximum amount which will be paid under the BPP; an amount for which Buyer is responsible in any claim; order and timing of the steps required to make a BPP Claim; and other conditions under which Buyer can apply for compensation under this BPP. The process to be followed is set out in detail in Section 5, below. Specific limitations on claims are spelled out below in Section 6 entitled “Limitations.”
G. “Seller”: the offeror or advertiser of an Item who posts a listing for such Item on the Site.
H. “Unfair or Deceptive Acts” refer solely to conduct by the Seller in a transaction conducted through the Site. This conduct may include any conduct which causes a Buyer not to receive the Item he or she believed he or she was bidding on or purchasing. This conduct may include, without limitation:
1) Fraud: The Seller intended to convince the Buyer to pay for an Item that was materially different from that Item that the Seller listed and described on the Site, by causing the Buyer to rely reasonably on the Seller’s false or negligent misrepresentations about the Item in Seller’s listing. “Representation” or “misrepresentation” might be accomplished by words, pictures, or other speech acts. “Material” refers to any representation that would tend to affect the Buyer’s decision to purchase.
2) Misrepresentation: The Seller intentionally or unintentionally made representations in the Listing about the Item that were inaccurate, or the Seller intentionally or unintentionally caused or allowed the Buyer to believe facts about the item offered by the Seller that were inaccurate or untrue.
3) Failure to Complete the Sale: The Seller failed or refused to complete the sale of an Item although the Buyer entered into a binding contract to purchase the Item as described in this BPP. Failure to complete may be through the Seller not shipping the Item; or by the Seller inordinately delaying shipment to the point that the Buyer reasonably believes that the Seller will not complete the transaction; or by the Seller shipping Items materially different than those represented in the Seller’s offer; or by any other conduct, representation or speech act that would indicate to a reasonable consumer that the Seller will not in a timely fashion complete the sale.
“Failure to complete the sale” does not include the intervention in the transaction of unforeseen acts or conditions that are not in the control of the Seller: acts of God; weather disasters; shipping or transit damage that materially reduces the condition or value of the Item that are not the result of the Seller’s negligence, criminal conduct or other malfeasance, or similar reasonably unforeseeable situations. These conditions will not support a claim under this BPP.
4) Undisclosed Terms and Conditions of the Sale: Seller’s assertion of terms and conditions not disclosed in this listing of the Item before Buyer places a bid (or selects “Buy Now” for immediate purchase) shall be conclusively considered an Unfair or Deceptive Act, unless those undisclosed terms and conditions are usual and customary provisions in the consumer firearms market. As an example, without limiting applicability of this paragraph: A Seller need not disclose that a sale must be conducted through an FFL; nor must she reveal that tax will be charged on the Item sold; nor that weapons will be shipped in an un-loaded condition. These are all usual and customary conditions of a sale of these Items.
5) Failure to Communicate: Seller’s failure to communicate with Buyer after Buyer places a bid (or selects “Buy Now” for immediate purchase), or conduct by Seller that frustrates communication between Buyer and Seller, may be considered an Unfair or Deceptive Act. Where the issue of non-conformity of an Item to the Seller’s published listing must be referred to an FFL under this BPP, failure to cooperate with the FFL chosen by GunBroker.com will be considered a Failure to Communicate.
6) Selling Illegally: It is the Seller’s responsibility to know whether Seller can legally offer for sale, or advertise, sell, or deliver, an Item to Buyer’s disclosed location. Offering an Item for sale or advertising or attempting to sell an Item that it is illegal for the Seller to sell is an Unfair or Deceptive Act. However, this provision does not obligate Seller to investigate whether Buyer is barred from purchasing, possessing, or receiving an Item.
I. “Site” means the website at www.gunbroker.com and its subdomains.
4. Not Insurance.
This BPP provides compensation, but it does not provide insurance against any losses beyond the limitations of the policy set out in Section 6 below. It does not cover all possible losses that may be incurred by a Buyer. It is not designed to provide a full restitution of all losses by Buyers. The offering of this BPP by GunBroker.com does not constitute GunBroker.com or any of its affiliates as insurers or other guarantors of amounts paid by Buyers on the Site.
5. Claims Process.
If you are a Buyer who believes you were the victim of an Unfair or Deceptive Act listed above by a Seller, you may apply for compensation under this BPP by strictly following the claims process set forth below and on the Claims Process page (the “Claims Process”) in order to submit a claim under this BPP (each, a “BPP Claim”). GunBroker.com may not honor any claims that do not comply with each step of this Claims Process.
a. Buyer and Seller must attempt in good faith to mediate the dispute prior to filing a BPP Claim. If this does not resolve the dispute within 30 days after the closing of the Auction or Buyer’s clicking “Buy Now” on the Site, only then may Buyer continue with a BPP Claim. GunBroker.com reserves the right to defer consideration of any BPP Claim under this BPP until such period has elapsed.
b. Prior to filing a BPP Claim, a Buyer who paid with a credit card must file a dispute of the charge with the credit card company or the payment gateway. Buyer will be required to show GunBroker.com proof that his or her dispute was denied in order to proceed with a BPP Claim.
c. Buyer may file a BPP Claim with GunBroker.com any time between the end of the 30-day period above and the date that is 60 days from the closing of the Auction or Buyer’s purchase of the Item on the Site.
d. “Filing a BPP Claim” under this BPP requires that each of the following steps be taken:
i. Buyer must fill out the BPP Claim Form.
ii. Buyer must send GunBroker.com the required documentation outlined in the BPP Claims Process. “Required documentation” may include, but may not be limited to, proof of payment. Other “required documentation” may include
1. Credit card refund or chargeback denial
2. Postal Service report;
3. Police Report;
4. IC3 report;
5. Other documents as determined by GunBroker.com’s BPP staff in its sole discretion.
e. The BPP Claim will then be reviewed by GunBroker.com. One element of that review process is for GunBroker.com to contact the Seller to hear Seller’s side of the story.
f. At GunBroker.com’s sole discretion, GunBroker.com may require that Buyer or its agent send the Item in question to an FFL for review of the competing claims of Buyer and Seller. The FFL will be an FFL that GunBroker.com in its sole discretion determines to be a reliable, neutral party. The decisions of the designated FFL may not be challenged by either Buyer or Seller, nor will any other third party’s opinion be considered by GunBroker.com in determining whether to accept or reject a BPP Claim.
g. Buyer must pay the cost of the FFL’s inspection and shipping of the Item in both directions.
h. GunBroker.com will review the Buyer’s claim, the Seller’s response and the FFL’s inspection report (if any) to make a determination of whether the BPP Claim is valid.
i. If the BPP Claim is valid, GunBroker.com will send Buyer an affidavit supporting the BPP Claim. Buyer must fill out and return the affidavit to GunBroker.com within 30 days or the BPP Claim will be denied.
j. When GunBroker.com receives a fully completed and executed affidavit described in the BPP Claims Process, GunBroker.com will process payment, subject to the limitations below.
6. Limitations and Restrictions on the Benefits, Use and Rights Conferred by this BPP.
BPP Claims are subject to the following limitations, all of which are strictly enforced by GunBroker.com:
a. Single Item: BPP Claims may only be filed on a single Auction or a single purchase transaction. Where Buyer wishes to file on multiple Items, the Buyer must file a separate BPP Claim for each Item.
b. Amount: This Buyer Protection Program only compensates Buyers for losses up to a maximum of $500 of amounts paid for a single Item. As stated in Section 2, Buyer is responsible for the first $100 of any BPP Claim, limiting the maximum recovery on any Item to $400.
c. Time for Filing: The time limits described in Section 5 above are strictly enforced.
d. Limit on Number of BPP Claims: No Buyer may file more than 3 BPP Claims over a rolling period of 6 months. The 4th claim in that period of 6 months and any subsequent BPP Claim during that period will be automatically rejected. A large number of BPP Claims in a short period indicates, at the very least, that the Buyer is not exercising reasonable judgment in bidding.
e. Good Standing: The Buyer must be in good standing with GunBroker.com at the time the claim is filed (meaning, for example, that the Buyer’s account is active, not suspended). If the Buyer is not in good standing, the Buyer’s claim will be automatically rejected.
f. Legal Transactions: The transaction between Buyer and Seller must conform to all federal, state, and local laws, as well as within the rules laid out in the GunBroker.com User Agreement.
g. Irregularities in Transaction: GunBroker.com will deny any claim where there are irregularities in the transaction. For example, this will include, without limitation, the following situations:
i. Either the Buyer or the Seller live outside the USA or its Territories;
ii. The Item was paid for in cash, Venmo, Zelle, Cash App, PayPal Friends and Family (PPFF) or any person to person cash payment application;
iii. The Item was paid for by barter or trade;
iv. The Item was damaged in shipping;
v. The Item was lost or damaged by any third party, including but not limited to transporters, shippers, agents, or FFLs;
vi. The possession of the Item was accepted for Buyer by anyone other than the Buyer. Where the dispute between Buyer and Seller is the result of Buyer changing his or her mind about the purchase of the Item, finding a better price, or suffering Buyer’s remorse, the BPP does not apply;
vii. The Buyer may not purchase, possess, or receive an Item under applicable federal, state or local law.
7. Buyer Agreements in Claiming under This BPP.
By submitting a claim under this BPP, the Buyer recognizes and agrees that: (i) Buyer waives any claims that he has or might assert against GunBroker.com for any claimed liability arising from the facts that give rise to a BPP Claim, and Buyer will indemnify and hold GunBroker.com harmless for any liability arising out of such claims; (ii) Buyer acknowledges that Buyer’s remedy under this BPP may be less than the Buyer would receive in a direct legal claim or action against the Seller; (iii) submission of a BPP Claim does not necessarily waive a claim by Buyer for a private action against Seller, but recovery in that action might be reduced by a tribunal handling the claim by the amount recovered under the BPP (including the $100 for which Buyer is responsible under Section 2 above); (iv) GunBroker.com has no obligation to release any data or information to Buyer in any dispute between Buyer and Seller except as may be required under applicable law; and (v) where Buyer’s BPP Claim is rejected under the BPP in whole or in part, Buyer may still have a remedy against Seller; nothing set forth in this BPP shall prejudice such remedies between Buyer and Seller except insofar as any recovery may be reduced as stated in this paragraph.
8. Relation to Other Legal Terms.
This BPP constitutes part of the GunBroker.com User Agreement and as such has been incorporated into such agreement by reference. The terms set forth in the GunBroker.com User Agreement regarding limitations of liability, indemnity, governing law, dispute resolution, and waiver of terms by a party shall apply to all claims under this BPP and are incorporated fully in this BPP. In the event of any conflict between the terms of the GunBroker.com User Agreement and of this BPP, those set forth in the GunBroker.com User Agreement shall prevail.