Any buyers brought by WebsitesBroker to the seller who initiate or partake in a conversation, whether or not they have submitted an offer, whether verbal or written, shall remain under exclusivity for a period of two years after the end of the term of this agreement.
- TERM. This Agreement is effective upon the Effective Date and shall remain in force and effect for a period of three (3) months (the “Term”), unless the parties mutually agree to extend the Term of the Agreement thereafter.
WEBSITESBROKER FEE; DOMAIN NAME TRANSFER FEES; TAXES
In consideration of WebsitesBroker sale of the Web Property to a buyer, Seller shall pay a fee of twelve percent (12%) of the Actual Sales Price to WebsitesBroker (the “WebsitesBroker Fee”).
Seller hereby authorizes WebsitesBroker to deduct the WebsitesBroker Fee and any Domain Name Transfer Fees from the Actual Sales Price prior to payment of the Actual Sales Price to Seller.
Seller shall pay all federal, state, local or foreign taxes incurred in connection with the sale of the Web Property.
ESCROW; PAYMENT TO SELLER
The sale of the Web Property from Seller to the buyer will be transacted through an escrow account (“Escrow Account”) managed by an “Escrow Holder,” which may or may not be WebsitesBroker. The Seller shall pay all escrow fees incurred in connection with the sale of the Web Property.
Upon deposit by the buyer of the Actual Sales Price to the Escrow Account, and upon confirmation that Seller has transferred the Web Property to the Escrow Holder, WebsitesBroker shall remit to Seller the Actual Sales Price, less the WebsitesBroker Fee and any Administrative Fees.
WebsitesBroker REPRESENTATIONS & WARRANTIES
WebsitesBroker represents and warrants that: (1) WebsitesBroker has the full power and authority to perform its obligations hereunder; (2) WebsitesBroker will perform its obligations hereunder in a timely manner, in good faith and with all due skill and care; and (3) WebsitesBroker performance hereunder will comply with all applicable laws, regulation and policy.
SELLER’S COVENANTS; INJUNCTIVE RELIEF
Seller agrees and covenants: (1) to refer to WebsitesBroker all previous, pending and future inquiries from brokers, purchasers or other parties interested in purchasing the Web Property; (2) to provide WebsitesBroker with complete and accurate information regarding Seller and the Web Property; (3) assist, upon WebsitesBroker reasonable request, WebsitesBroker with the marketing and sale of the Web Property; (4) to provide WebsitesBroker with information and data necessary to permit WebsitesBroker to perform its duties hereunder; (5) to immediately notify WebsitesBroker of any lawsuits, threats of litigation, claims, or other demands affecting or involving the Web Property, arising or accruing after the Effective Date, which may become a liability or obligation to a buyer or adversely affect a buyer’s conduct of the business involving the Web Property; and (6) that, immediately upon deposit by the buyer of the Actual Sales Price to the Escrow Account, Seller shall transfer control of the Web Property, including without limitation the Domain Name, hosting accounts, and social media accounts, to Buyer.
Seller understands and agrees that any breach of Section 8(a)(6) of this Agreement may cause WebsitesBroker irreparable harm and an appropriate remedy for such breach would be an injunction. Thus, in the event that there is a breach or threatened breach of Section 8(a)(6) of this Agreement by Seller, WebsitesBroker will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of Section 8(a)(6) of this Agreement. Seller further agrees that no bond or other security shall be required in obtaining such equitable relief, and Seller hereby consents to the issuance of such injunction and to the ordering of specific performance, even in the event that the Actual Sales Price deposited by the buyer to the Escrow Account is returned to the buyer due to Seller’s failure to timely comply by Section 8(a)(6) of this Agreement.
SELLER’S REPRESENTATIONS & WARRANTIES
Seller represents and warrants that: (1) Seller owns good, valid and marketable title to the Web Property; (2) the Web Property is held in Seller’s name; (3) all approvals required for Seller to enter into this Agreement and to sell and transfer the Web Property (including all third-party licenses appurtenant thereto) have been duly obtained; (4) Seller has full power, authority, and ownership to enter into this Agreement and to effectuate all of the transactions contemplated, without any conflict, restrictions or limitations, imposed by any law, legal requirement, agreement, or otherwise; (5) the transfer to a buyer of Seller’s right, title, and interest in and to the Web Property (including all third-party licenses appurtenant thereto) shall be free and clear of liens, claims, or encumbrances; (6) Seller is unaware that the Web Property infringes the intellectual property rights of any third party; (7) there are no lawsuits, threats of litigation, claims, or other demands affecting or involving the Web Property, arising or accruing before the Effective Date, which may become a liability or obligation to a buyer or adversely affect buyer’s conduct of the business involving the Web Property; (8) there have been no notices of copyright or trademark infringement received by the Seller or the Seller's Internet Service Provider prior to the Effective Date relating to the Web Property, to include any Digital Millennium Copyright Act "Take Down" notices; (9) Seller does not know, or have reason to know, of any matters, occurrences, or other information that has not been disclosed to WebsitesBroker and that would materially and adversely affect the Web Property; and (10) no representation or warranty by Seller in this Agreement contains or will contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements contained in this Agreement accurate.
INDEMNIFICATION OF WebsitesBroker. Seller shall indemnify, defend and hold harmless WebsitesBroker and its parent and its respective subsidiaries and their respective officers, directors, shareholders, affiliates, employees, agents, successors and assigns (the “WebsitesBroker Parties”) at its expense, from and against any and all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by the WebsitesBroker Parties, known or unknown, contingent or otherwise, directly or indirectly arising from or related to: (1) Seller’s breach of any warranties, representations, covenants or obligations contained in this Agreement, and (2) Seller’s violation or alleged violation of any applicable federal, state or local law.
RELATIONSHIP OF THE PARTIES. The relationship of the parties under this Agreement is one of independent contractors and nothing herein should be construed to constitute the parties as partners, joint ventures, agent and principal or employer and employee. Seller understands and agrees that WebsitesBroker provides similar services to other sellers, including those that may be directly or indirectly in competition with Seller, and that WebsitesBroker will not, and is not required hereunder to, devote its entire business time and effort to Seller.
CONFIDENTIALITY. Neither party shall disclose the terms of this Agreement, except as required by applicable law or if compelled by a court of competent jurisdiction. Notwithstanding the foregoing, this provision shall not apply to disclosures made by either party to their agents, employees and advisers to whom such disclosure is necessary in order to perform pursuant to this Agreement.
ATTORNEY’S FEES AND COSTS. If either party prevails in any action, suit, or proceeding arising from or based upon this Agreement, that party shall be entitled to recover from the other party the prevailing party’s reasonable attorneys' fees in connection therewith, in addition to the costs of such action, suit, or proceeding.
DISCLOSURE OF RELEVANT INFORMATION. Seller and WebsitesBroker understand and agree that if either party knows, or should know of, any information materially affecting the value of the Web Property, whether said information is readily discernible or publically available, that party has disclosed, or shall disclose, this information to the other party.
PUBLICATION RIGHTS: WebsitesBroker shall have the right to publish on the WebsitesBroker Website the name of the Web Property sold and its purchase price for marketing purposes.
NOTICE. Unless otherwise provided, any notice required or permitted to be delivered pursuant to this Agreement must be delivered by facsimile, Mail, certified or registered mail, or overnight courier, and addressed as set forth below the signature line of the party to whom notice is being given, or to such other address as the parties may from time to time designate by notice in writing to the other party.
GOVERNING LAW; JURISDICTION & VENUE.
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Europe, and shall be governed by and construed in accordance with the laws of the European Union without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
Nothing herein will preclude WebsitesBroker from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. As used herein, “Court of Competent Jurisdiction” means any federal or state court that: (1) has jurisdiction over the subject matter; and (2) that is in or for a state in which Seller and/or WebsitesBroker is located.
ENTIRE AGREEMENT; SUCCESSORS; SEVERABILITY. This Agreement constitutes and represents the entire agreement between the parties and supersedes any prior understandings or agreements, written or oral, between the parties respecting the subject matter of this Agreement. This Agreement may be amended, supplemented or modified only upon an agreement in writing executed by all of the parties. This Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. If any provision of this Agreement shall be determined to be invalid, void, illegal or inoperative, such provision shall be construed and amended in a manner which would permit its enforcement and maintain the parties' original intent, but in no event shall such provision affect, impair or invalidate any other provision in this Agreement.
FORCE MAJEURE. WebsitesBroker shall not be liable for any failure to perform its obligations under this Agreement due to causes beyond WebsitesBroker control, including, but not limited to: acts of God, fire, flood, drought, earthquake, volcanic eruption or other catastrophes or calamities, strikes or combination of workmen, lockouts or other labor disturbances; any law, order, regulation, or governmental action, national emergencies, insurrections, rebellions, riots, wars (declared or not), hostilities or belligerence, blockade, revolution or any other public disorder; unavailability of internet connectivity; however, WebsitesBroker shall use commercially reasonable efforts to eliminate such event whenever practicable.
LIMITATION OF WARRANTY AND LIABILITY: THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SET FORTH HEREIN, WEBSITESBROKER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WEBSITESBROKER DOES NOT WARRANT OR GUARANTEE THAT ITS SERVICES WILL RESULT IN THE SALE OF THE WEB PROPERTY. SELLER’S SOLE AND EXCLUSIVE REMEDY FOR WEBSITESBROKER FAILURE TO PROVIDE THE SERVICES PROMISED HEREIN IS TO TERMINATE THIS AGREEMENT. THE LIABILITY OF WEBSITESBROKER FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS, REPRESENTATIONS, OR ARISING OUT OF THE FAILURE TO THE FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURRING SHALL BE LIMITED TO THE WEBSITESBROKER FEE PAID BY SELLER TO WEBSITESBROKER PURSUANT TO THIS AGREEMENT AND IN NO WAY SHALL WEBSITESBROKER LIABILITY EXCEED THE WEBSITESBROKER FEE. WEBSITESBROKER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF WEBSITESBROKER EMPLOYEES OR REPRESENTATIVES OR CULPABLE NEGLIGENCE, REGARDLESS OF WHETHER SELLER HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES.
ASSIGNMENT. Except in the event of the sale of Seller’s company, or substantially all of its assets, to a third party, Seller may not assign its rights and obligations under this Agreement without the express written consent of WebsitesBroker, which will not unreasonably be withheld. WebsitesBroker may assign or transfer its rights and obligations under this Agreement for any reason, at any time, without notice to, or consent from, Seller.
WAIVER. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
HEADINGS. The headings contained in this Agreement are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions.
COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Photocopies, signatures reproduced by mechanical, digital or other means, and/or facsimile transmittal signature pages may be used instead of originals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.