Last updated on October 14, 2022
This Buyer’s Agreement (this “Agreement”) sets out the terms and conditions on which you (“Buyer” or “you”) agrees to make bids on boats listed for auction on the Website (as defined below) of BoatList LLC (“BoatList”). This Agreement applies to anyone who uses BoatList’s Website to bid on a boat.
You may only bid for a boat in an auction on the Website if you are eighteen (18) years of age or older, have the capacity to enter into a legally binding contract and reside in the United States. By bidding on a boat for auction on the Website, you are warranting that you meet such minimum requirements.
1. Access to Bids. BoatList shall provide Buyer with access to boatlist.auction (the “Website”) to search for, identify, and place bids on Boats that Buyer may be interested in purchasing (the “Services”). In the event that Buyer places the highest bid on a boat listed on the Website (the “Boat”), Buyer gives BoatList the exclusive right to provide any information necessary to the owner of such boat (the “Seller”) so that they can complete a transaction for the purchase of the Boat.
2. Buyer’s Fee. In exchange for the Services, Buyer will pay BoatList an amount equal to the lesser of (i) five percent ( 5%) of the prospective Buyer’s bid or (ii) $20,000 (the “Buyer Fee”) if Buyer is the highest bidder in an auction. Upon placement of a bid by Buyer, a temporary hold (the “Hold”) in the amount of the Buyer Fee will be placed on the Buyer’s credit card. In the event the Buyer’s bid is exceeded by another bid and the Buyer does not win the particular auction, the Hold will expire and the Buyer will not be charged any fee. In the event that the Buyer is the winning bidder for a particular auction, the Hold will be released, and the Buyer Fee will be charged to Buyer’s credit card by BoatList. Such Buyer’s fee is nonrefundable, even if the winning bid does not result in a purchase transaction. Buyer hereby authorizes BoatList (and/or its payment processors) to charge their credit card for the Buyer’s Fee as provided for in this Section 2 and expressly agrees not to do a chargeback or request a refund from Seller’s credit card company or bank for the payment of such Buyer Fee. Notwithstanding the foregoing, if the winning bid does not result in a purchase transaction due to the Seller failing to use reasonable efforts to remedy Material Undisclosed Issues (as defined below), then the Buyer may refused to consummate the purchase of the Boat and BoatList will refund the Buyer Fee to Buyer upon request.
3. Consummation of Sale. After Buyer receives notice that Buyer has entered the winning bid for a Boat, Buyer must contact the Seller directly to arrange for the payment of the Boat. BoatList will share limited contact information with Buyer and Seller via email in order to facilitate the parties contacting each other to arrange for such payment. The Buyer and Seller are responsible for consummating the sale and exchanging payment and hereby acknowledge and agree that BoatList will not assist with any exchange of payment for the Boat. BoatList will not be liable for Seller’s failure to consummate the sale, delivery and transfer of title of a Boat. NOTWITHSTANDING THE FOREGOING, IF A BUYER FAILS TO ISSUE PAYMENT FOR A PURCHASED BOAT WITHIN THE ALLOTTED TIME AGREED ON WITH THE BUYER, OR IF THE SELLER FAILS TO SELL THE BOAT FOR THE AGREED-ON SALE PRICE OR OTHERWISE FAILS TO CONSUMMATE THE SALE, DELIVERY AND TRANSFER OF TITLE OF THE BOAT, THE FAILING BUYER OR SELLER, AS APPLICABLE, WILL BE BANNED FROM THE WEBSITE PERMANENTLY ONCE BOATLIST BECOMES AWARE OF SUCH FAILURE.
4. Buyer’s Obligations. In the event that Buyer places a bid on Boat which is listed for auction on the Website, Buyer hereby agrees that insofar as Buyer’s bid is equal to or higher than the Reserve Price (as defined in the TOS) and/or Buyer’s bid or offer is the highest bid or offer received by BoatList, Buyer will contact the Seller and will carry out the purchase of the Boat in accordance with Section 3 above. Notwithstanding the foregoing, if the Seller fails to use reasonable efforts to resolve any Material Undisclosed Issues within a reasonable timeframe, the Buyer may refuse to consummate the purchase of the Boat. As used herein, “Material Undisclosed Issue” means a problem with the Boat that (a) substantially diminishes the value or operability of the Boat and (b) was not disclosed by the Seller in the auction listing for the Boat and was not visible in the photos included in such auction listing. The Buyer hereby acknowledges that Boats purchased through the Services are used and are not in perfect condition. As a result, the Buyer (i) accepts any issues with the Boat that are disclosed in the auction listing or are visible in any photos included in the auction listing and (ii) will conduct thorough due diligence on the Boat prior to placing a bid.
5. BoatList’s Obligations; Disclaimers. The Website is a public venue where persons can list for auction and bid on Boats. Unless otherwise expressly stated by BoatList, BoatList is involved only as a facilitator in the introduction between buyers and sellers. As a result, BoatList has limited control over potential Sellers and the Boats put up for auction, including without limitation, control with respect to quality, safety or legality of the Boats or the truth or accuracy of listings for Boats. BoatList cannot and does not control whether Sellers will complete the sale of Boats which they have listed for auction on the Website, however, BoatList will ban any such Seller from future auctions on the Website if BoatList becomes aware that such Seller has not completed a sale that they are legally obligated to complete. Because user authentication on the Internet is difficult and many times impossible, BoatList cannot and does not confirm that each user is who he or she claims to be. Unless otherwise expressly set forth herein, BoatList’s sole duty shall be to use commercially reasonable efforts to provide auctions for Buyer to bid on via the Website as provided for herein, with the understanding that BoatList makes no warranty or guaranty in connection with whether or not such bids will be successful or whether or not successful bids will result in the purchase of a Boat. As a result, BoatList shall not be liable for any loss suffered by Buyer relating to the purchase of a Boat or the subject matter of this Agreement, including but not limited to a Seller refusing to enter into a sales contract or otherwise not completing a sale of a Boat.
6. Representations and Warranties of Buyer. Buyer represents and warrants that Buyer: (i) has all appropriate consents, approvals and authority to enter into this Agreement, (ii) has all appropriate licenses, permits and authorizations to the extent required by law to carry out its responsibilities set forth herein, (iii) will not engage in any fraudulent bidding (e.g. bidding on your own auction or bidding on an auction with no intent to purchase) and (iv) shall not rely on BoatList to provide services as an agent/closer, title company, attorney, appraiser, certified public accountant or any other expert for Buyer and Buyer has been expressly advised to seek independent advice from an attorney and any other expert of Buyer’s choosing regarding this Agreement and all other matters relating to the bidding for and purchase of the Boat, including, without limitation, the valuation and condition of the Boat. Buyer further represents and warrants that all of the information provided herewith, or which may be provided to BoatList, shall be true, complete and correct.
7. Indemnification. Buyer hereby agrees to defend and indemnify BoatList, its successors, assigns, licensees, members, 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 (i) the breach by Buyer of any representation, warranty or covenant made under this Agreement, or (ii) any claim made against BoatList by the Seller related to the purchase or receipt of the Boat. Buyer will give prompt notice to BoatList of any correspondence or actual or threatened lawsuit or other legal action which may cause Liabilities hereunder and of which Buyer becomes aware.
8. Other Provisions. The provisions of Section IX (Miscellaneous) of the TOS are hereby incorporated by reference and shall apply to this Agreement as if they were set forth herein.
9. Term and Termination. This Agreement commences upon the earlier of (i) when Buyer clicks to accept this Agreement via the Website or (ii) Buyer places its first bid in an auction on the Website and continues for so long as Buyer continues to bid in auctions on the Website. BoatList reserves the right, at its sole discretion, to pursue all of its legal remedies, including but not limited to suspending, disabling or terminating your Account (as defined in the TOS) and/or your ability to bid in auctions on the Website, at any time for any or no reason and without any notice. You may terminate this Agreement by ceasing to participate in any auctions on the Website. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement. Termination, suspension, or cancellation of this Agreement shall not affect any right or relief to which BoatList may be entitled, at law or in equity.
10. Changes to this Agreement. BoatList may modify, add to, or delete parts of this Agreement, in whole or in part, at BoatList’s sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Website (as defined below). BoatList will provide Buyer with notice of such changes. It is your responsibility to review any changes to this Agreement and you can view the most current version of this Agreement at any time by visiting this page. If you object to any of the changes to this Agreement, or otherwise do not understand or agree to any of the changes to this Agreement, do not place any bids in auctions. By continuing to place bids in auctions following notice of any changes to this Agreement, you agree to and are bound by this Agreement as changed.