Listing Agreement
Effective Date: March 22, 2024
ALMM Ventures, LLC (“ALIVE”, “our”, “us”, or “we”) provides the Awesome Joe Auctions Services to facilitate the listing and sale of Vehicles on behalf of Sellers through the Services to Buyers. Prior to utilizing the Services as a Seller (“you”, “your”), you must review and agree to the following terms. These terms apply in addition to Awesome Joe Auctions standard Terms of Service. Any capitalized terms found in this Listing Agreement (this “Agreement”) not defined herein shall have the meaning found in the Terms of Service, and in the event of a conflict between this Agreement and the Terms of Service, this Agreement shall control, except in the “Listing, Bidding and Buying Process” section, where the Terms of Service shall control.
By clicking “Submit” on your Listing, you hereby agree to be legally bound by this Agreement.
Exclusive Right
If agreed to in writing prior to Listing, for the term of this Agreement, you grant us the exclusive right to market and sell your Vehicle. For the sake of clarity, we will not sell the Vehicle as individual parts unless submitted as a parts listing through the Services. In no event will we dismantle a Vehicle in order to sell its constituent parts.
Scope / Term
The term of this Agreement shall be from the date you submit your Listing (“Effective Date”) through one hundred and twenty (120) days after the End Date if an Auction or cancellation of such Listing if a Classified (“Cancellation Date”).
Listing, Bidding and Buying Process
The process for utilizing the Services to facilitate the sale of a Vehicle is defined in the “Listing, Bidding and Buying Process” section of the Terms of Service. Please review this section of the Terms of Service thoroughly to ensure a complete understanding of the process and your obligations thereunder.
Compensation
You agree to pay us a fee as compensation for the use of the Services in selling the Vehicle (the “Fee”). The Fee shall be equal to two percent (2%) of the Winning Bid or Accepted Offer, for a maximum of two thousand dollars ($2,000.00). Payment of the Fee will be due immediately upon the acceptance of a Winning Bid or Accepted Offer by the seller at which time the Listing automatically ends, as applicable, to be paid directly to us through the payment processing information provided by you at the time you submitted the Listing. You hereby authorize us to process such payment of the Fee in a timely manner. In the event that the payment processing information you provided is erroneous, we reserve the right to pursue the Fee through any legal means available to us. In the event that an Auction expires without a Winning Bid and you choose to re-list your vehicle with us (a “re-Listing”), no additional Listing Fee shall be charged to you, provided such re-Listing takes place within sixty (60) days of the original Listing’s End Date.
In the event that you, for any reason, submit an Offer or Winning Bid on your own Listing, you agree to pay both the Fee outlined above, as well as any Buyer fee applicable to an Accepted Offer or Winning Bid.
No Circumvention
You agree not to circumvent the Services in order to sell a Vehicle to a Buyer who you contacted, or who contacted you, through the Services. In the event such a sale takes place within 90 days of an Auction’s End Date or a Classified’s Cancellation Date, you agree to pay the Fee to us, as if the sale were facilitated through the Services, such Fee being calculated based on the Reserve or the actual sales price, whichever is greater.
Close of Sale
You agree to accept the Accepted Offer or Winning Bid, regardless as to the actual final value of such Accepted Offer or Winning Bid, and we cannot be held responsible if an Accepted Offer or Winning Bid does not meet any expectations you held other than such Offer or Bid meeting or exceeding the Ask Price or Reserve set by you.
All transactions facilitated through the Services are strictly between Buyer and Seller. We are not a payment processor, and do not facilitate transactions directly between any party, nor do we facilitate the safe transportation of the Vehicle from Seller to Buyer. The Services facilitate the listing of Vehicles to wide audiences, and connect Sellers and Buyers to negotiate the purchase thereof through a digital marketplace. It is the responsibility of the Buyer and Seller to finalize the exchange of title to a Vehicle. While we will exercise reasonable efforts to prevent fraudulent use of the Services, we cannot be held liable for: (1) failure of a Vehicle to sell, (2) failure of a Buyer to pay the Accepted Offer or Winning Bid, or (3) failure of a Seller to convey title or possession.
Warranties and Disclaimers
You warrant that you own the Vehicle or have the authority to bind the owner of the vehicle. You warrant that you have good and marketable title to the Vehicle, free and clear of all liens, encumbrances, and adverse claims of any kind, except as expressly disclosed at the time you submit a Listing for the Vehicle. In the event that title is not free of liens, you represent and warrant that you have obtained the written consent of any lienholder and any other adverse claimant to release any interest in the Vehicle upon the receipt of the disclosed lien balance and any other sums specifically disclosed at the time you submit a Listing for the Vehicle. You must be prepared and able to submit evidence of such written consent immediately.
You represent that the title for the Vehicle, including any powers-of-attorney, are original and that the signatures on those documents are genuine.
You represent that the information you supplied to us and, if applicable, the selected condition validator in connection with the identification and description of the Vehicle is, to the best of your knowledge, true, complete, and not misleading.
You understand that that you are fully responsible for any description of the Vehicle, and that we make no representations or express any opinions concerning any Vehicle. We have no role in inspections performed by condition validators and we do not otherwise examine Vehicles or Vehicle components, research title documentation, Vehicle provenance, nor do we verify information provided by you, nor do we undertake any duty to any of the foregoing for the benefit of Buyers, Sellers, or any other party. Verification of submitted Listings, as noted in “Listings Process” above, is solely to verify the desire of Sellers to submit their vehicles, and the content, but not the substance or veracity, of such submissions, as provided by the Seller.
You acknowledge that you are responsible for past tax and title obligations on the Vehicle, and that you are responsible to provide a Buyer with an Accepted Offer or Winning Bid with any necessary documentation to this effect.
You acknowledge that our sole duty under this Agreement is to provide the Services, and not to process payments in connection with purchases, provide tag and title services, provide transportation services for purchased Vehicles, or any other duty except as expressly defined in this Agreement and in the Terms of Service. You hereby waive and release us from and against any claim, demand, liability, or expense of any kind arising out of or related to the Vehicle or Listing, including without limitation any assertions of negligence (including negligent misrepresentation), breach of contract or breach of warranty.
If participating in the Condition Validation Program, you further acknowledge that you are bound by the selected condition validator’s conclusion regardless of whether you may disagree with that conclusion and you will be required to proceed in accordance with that conclusion.
In the event that a Buyer alleges or asserts any warranty, negligence, or breach of contract arising out of sale of the Vehicle, regardless of whether such alleged warranty, negligence, or breach of contract is based upon statute, written or oral communication, is express or implied, you agree to defend, indemnify, and hold harmless ALIVE with respect to any such claim, including attorneys’ fees, witness fees, court costs, and collection costs. Additionally, our total liability with respect to all loses arising under or in connection with this Agreement or the Terms of Service, whether in contract or in tort or breach of any statutorily created obligation or duty, or otherwise, shall be limited to, and shall not exceed our Fee.
Remedies
In the event that you breach any provision of this Agreement, and/or if you fail to consummate the sale of the Vehicle for any reason, in addition to and not in lieu of all remedies available in equity or at law, both a Buyer with an Accepted Offer or Winning Bid and ALIVE shall have the right to:
- Seek an order of specific performance directing you to deliver the Vehicle to the Buyer and all title documents properly executed and acknowledged;
- Hold you liable for actual damages, including the Fee and any other amount payable by you, and enforce any lien rights hereunder;
- Withdraw the Listing and retain the Fee.
In the event of a conflict or dispute between you and a Buyer with an Accepted Offer or Winning Bid, we reserve the right to interplead any funds or documents held pursuant to this Agreement.
In the event that either you or a Buyer with an Accepted Offer or Winning Bid default on a transaction contemplated hereunder, we shall remain entitled to the Fee.
This Agreement shall be governed by the laws of the State of Delaware.
We shall be entitled to attorney’s fees incurred in the enforcement or defense of this Agreement.
In the event of a default by a Buyer with an Accepted Offer or Winning Bid, you release us from all legal liability and agree to look only to the Buyer for any recourse arising from said default.
