THIS SELLER’S AUCTION SERVICE AGREEMENT (the “Agreement”) is made and entered into as of this ____ day of ______________, 20___, by and between PCARMARKET, Inc. (“PCARMARKET”), and the undersigned owner(s) of personal property (the “Seller”). PCARMARKET and Seller agree as follows:
1. Exclusive Listing Agreement. Seller hereby grants to PCARMARKET and PCARMARKET hereby accepts the exclusive and irrevocable right and privilege on behalf of the Seller to offer for sale the property described as: ________________________________________ (the “Vehicle” or “Item”). The term of this Agreement (the “Term”) shall begin on the date of execution hereof by Seller and shall continue ________________________________________. The exclusive right granted herein shall include the exclusive right to list and sell the Vehicle by online auction through the website https://www.pcarmarket.com (the “Website”)
2. Listing for Sale With or Without Reserve.
3. Seller may choose between the following forms of auctions to list Seller’s Vehicle or Item for sale on the Website: Reserve Auction, Blind Auction, and No Reserve Auction. With respect to a Reserve Auction and Blind Auction, Seller agrees to pay to PCARMARKET, as compensation, the amount stated in the attached fee schedule which will be retained by PCARMARKET as part of PCARMARKET’s compensation. Seller acknowledges that any amount mentioned therein as compensation shall not be returned to Seller in the event the Vehicle or Item fails to sell on the Website.
4. Seller’s Obligations. Seller agrees to provide to PCARMARKET all information requested by PCARMARKET with respect to the Vehicle or Item prior to the approval of the Vehicle or Item being listed for sale on the Website. Seller understands that upon the Vehicle or Item’s approval by PCARMARKET, the Vehicle or Item will be listed on the Website for a period of at least seven (7) days for the Initial Auction. Seller agrees that Seller will not interfere with the sale of the Vehicle or item during the Initial Auction and will not enter into any other transaction concerning the Vehicle or Item after the approval for sale on the Website. Seller is prohibited to have their Vehicle or Item listed for sale on any other digital or print format during the initial seven auction period. With respect to any auction in which a Reserve Price has been established, Seller further agrees that in the event the Vehicle or Item does not sell during the Initial Auction, the Vehicle or Item may be placed into a separate auction area of the Website for a period of forty-eight (48) hours during which PCARMARKET will use its best efforts to negotiate an agreement between offerors who placed the highest bids during the Initial Auction and the Seller (the “Deal Tank Period”). Seller agrees to not interfere with, prevent or prohibit PCARMARKET in any manner prior to or during the Initial Auction or, if applicable, during the Deal Tank Period, from carrying out its duties and obligations under this Agreement. PCARMARKET reserves the right to accept offers on the Sellers behalf if the offer is equal to or greater than the Reserve Price. Within forty-eight (48) hours after PCARMARKET accepts a bid from a Buyer and Buyer submits payment in full for the Vehicle or Item (the “Delivery Period”), Seller shall make the Vehicle or Item available for Buyer to retrieve or arrange for the shipment thereof unless other arrangements have made and agreed upon between Buyer and Seller. PCARMARKET shall not be liable or responsible for arranging payment and delivery of the vehicle or item.
5. PCARMARKET’s Obligations; Disclaimers. The Website is a public venue where persons can sell and buy property. Unless otherwise expressly stated by PCARMARKET, PCARMARKET is involved only as a facilitator in the transaction between buyers and sellers. As a result, PCARMARKET has limited control over the items put up for auction, including, without limitation, control with respect to quality, safety or legality of items for sale, truth or accuracy of listing for sale items, or the ability of buyer(s) to engage in any transaction over the Website. PCARMARKET cannot and does not control whether buyers will complete the purchase or sale of items upon which they have bid. Because user authentication on the Internet is difficult and many times impossible, PCARMARKET cannot and does not confirm that each user is who he or she claims to be. Unless otherwise expressly set forth herein, PCARMARKET’s sole duty shall be to use commercially reasonable efforts to effect a sale of the Vehicle or Item during the Term of this Agreement, with the understanding that PCARMARKET makes no warranty or guaranty in connection with whether or not the Vehicle or Item will be sold or exchanged hereunder or the revenues that may or may not be derived therefrom and that PCARMARKET shall not be liable for any loss suffered by Seller relating to the Vehicle/Item or subject matter hereto including but not limited to a bidder refusing to enter into a sales contract, failing to tender full payment, or otherwise not completing a purchase of a Vehicle or Item. PCARMARKET shall not be charged with the custody of the Vehicle or Item listed hereunder, its management, maintenance, security, insuring, or repair.
6. Seller Default. If the Seller withdraws or sells their Vehicle or Item outside of the PCARMARKET platform during the Initial Auction Period, the Seller will be responsible for the PCARMARKET service fee which will be based on the Vehicle or Item Reserve Price. If Seller fails to make the Vehicle or Item available to Buyer within the Delivery Period, Seller shall be in default under this Agreement and shall be obligated to pay to PCARMARKET, as liquidated damages, any amount of money that PCARMARKET determines in its sole discretion to refund to Buyer, including without limitation any fee, administrative charge, or other expense incurred by PCARMARKET in order to issue such refund to Buyer, on the basis of Seller’s default. Seller and PCARMARKET agree and acknowledge that it would be difficult to ascertain the precise amount of damages incurred by PCARMARKET due to Seller’s default and that the liquidated damages provided for herein are a reasonable estimate of those damages. Seller hereby agrees and acknowledges that PCARMARKET is authorized to charge any amount mentioned in this Section against the credit card that PCARMARKET has on file for Seller.
7. Buyer Default. In the event that the Buyer defaults in connection with the Vehicle or Item following a sale conducted hereunder, Seller agrees and acknowledges that PCARMARKET will not be liable for any such default by Buyer. Seller understands that no amount paid by Seller to list the Vehicle or Item for sale on the Website will be returned to Seller on the basis of Buyer’s default.
8. Representations and Warranties of Seller. Seller represents and warrants that Seller has: (i) all appropriate consents, approvals and authority to enter into this Agreement, and (ii) all appropriate licenses, permits and authorizations to the extent required by law to carry out its responsibilities set forth herein. Seller further represents and warrants that: (a) Seller’s title to the vehicle or Item is marketable, insurable, and free of any and all liens (or will provide means to obtain a lien free title) and encumbrances or other indebtedness, subject only to customary exceptions and restrictions of record; (b) Seller has full power, right and authority to enter into this Agreement and convey title to the Vehicle or Item and will convey such title to the Buyer, free and clear of all liens (or will provide means to obtain a lien free title) and encumbrances, and warrants that there are no defects in title or other outstanding contracts or agreements of any kind for the sale of the Vehicle or Item; (c) Seller shall not rely on PCARMARKET to provide services as an agent/closer, title company; attorney; appraiser; certified public accountant or any other expert for Seller and Seller has been expressly advised to seek independent advice from an attorney and any other expert of Seller’s choosing regarding this Agreement and all other matters relating to the sale of the Vehicle or Item, including, without limitation, the valuation and condition of the Vehicle or Item; (d) if the Vehicle or Item has any material defect, Seller has communicated same to PCARMARKET and PCARMARKET is hereby authorized to disclose to any potential Buyer any such defects and any other material information known by PCARMARKET relating to the Vehicle or Item; (e) the Vehicle or Item can be auctioned without violation of any federal, state or other law or regulation; and (f) all of the information provided herewith, or which may be provided to PCARMARKET shall be true, complete and correct.
9. Seller hereby agrees to indemnify PCARMARKET, its successors, assigns, licensees, owners, officers, employees and agents, and hold them harmless from and against any and all claims, liability, losses, damages, costs, and expenses (including reasonable attorneys’ fees and costs), judgments and penalties (collectively “Liabilities”) arising out of, resulting from, or based upon the breach by Seller of any representation, warranty or covenant made under this Agreement, including, but not limited to, (a) any and all Liabilities arising from any inspection, advertising or marketing of the Vehicle/Item or (b) Seller’s failure to (i) disclose the existence of any title defects, security agreements or secured claims against the Vehicle/Item or known or hidden material defects therein, (ii) provide true and accurate information relating to the Vehicle or Item, or (iii) execute a sales contract with a qualified high-bidder or other Buyer of the Vehicle/Item or otherwise to close the sale of the Vehicle or Item in accordance with the sales contract and/or the terms and conditions hereof. Seller will give prompt notice to PCARMARKET of any correspondence or actual or threatened lawsuit or other legal action which may cause Liabilities hereunder and of which Seller becomes aware.
10. Rights to Content and Works. Seller hereby grants unto PCARMARKET the non-exclusive, irrevocable, fully sub-licensable and assignable, right and license, with respect to any and all data and information relating to the Vehicle or Item supplied by or prepared on behalf of Seller and/or PCARMARKET, including, without limitation, textual descriptions, virtual displays, photographs, video and audio recordings, and other images and likenesses of the Vehicle or Item collectively referred to as “Content”), to digitize, catalog, stream, store, disseminate, distribute, exhibit, broadcast, perform, publish, post, reproduce, display, adapt, modify, edit, communicate, translate, compress, transmit, integrate, create derivative works from, exploit, and otherwise use such Content, and to incorporate such Content into listings, web postings, audiovisual works and such other works as PCARMARKET or third parties on behalf of PCARMARKET may create within PCARMARKET’s sole discretion (collectively “Works,” which Works shall be owned solely and exclusively by PCARMARKET), throughout the world in any and all forms and media and by whatever means whether now known or hereafter devised or created, including, without limitation, by print media, Internet delivery, radio and television broadcast, and/or any and all other electronic means and/or device, in perpetuity. This non-exclusive license shall survive the termination of this Agreement for any reason whatsoever. Seller represents and warrants to PCARMARKET that said license granted to PCARMARKET with respect to the Content does not conflict with, violate or infringe upon the rights, including copyright or any other intellectual property rights, of any person or entity.
11. All notices which either party shall be required or shall desire to give to the other party shall be given in writing in one of the following ways: by personal delivery; by certified mail, return receipt requested, postage prepaid, in the mail; or by deposit with Federal Express, DHL or other comparable overnight courier. Addresses for purposes of delivery of notice hereunder are as set forth below, or as otherwise designated in writing after the execution of this Agreement.
85 Pine Hollow Road
Oyster Bay, NY 11771
Seller: To the address which Seller provides when registering as a member of PCARMARKET.
12. Governing Law. This Agreement shall be governed by the laws of the State of New York without reference to the principles of conflicts of law. In the event that the agreement to arbitrate herein is found not to apply to this Agreement, Seller hereby irrevocably submits to the jurisdiction of the courts of the State of New York, sitting in Nassau County, and the courts of the United States for New York.
13. Dispute Resolution. Seller agrees that any claim, demand, controversy, dispute, or cause of action arising out of or in any way concerning, relating, or referring to this Agreement (each a “Claim”) shall be resolved exclusively by binding arbitration according to the then-existing rules of the American Arbitration Association (“AAA”). Such proceedings will be governed by and in accordance with substantive New York law and shall be decided by a panel of arbitrators or an arbitrator located in Nassau County, New York. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable. Seller agrees that any Claim shall be resolved exclusively through final and binding arbitration, rather than in state or federal court. Seller and PCARMARKET both hereby waive any right to a jury trial under this Agreement.
14. Attorney Fees. Except as specifically provided under this Agreement, the AAA rules, or by applicable law, the parties hereto acknowledge and agree that (a) each party shall bear its own costs, expenses, and attorneys’ fee incurred in connection with any Claim, and (b) any right to an award of costs and expenses (including attorneys’ fees) provided for in this Agreement is limited to the specific circumstances set forth therein and is not intended to provide any party with a general right to an award of costs and expenses (including attorneys’ fees), even if such party is the “prevailing party” in connection with any Claim.
15. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.
* Seller understands that PCARMARKET will also collect a five percent (5%) service fee from the Buyer.
* Seller understands that PCARMARKET will also collect a ten percent (10%) service fee from the Buyer.