Last updated on October 14, 2022
This Seller’s Agreement (this “Agreement”) sets out the terms and conditions on which you (“Seller” or “you”) agrees to list your boat(s) for auction on the Website (as defined below) of BoatList LLC (“BoatList”). This Agreement applies to anyone who uses BoatList’s Website to list a boat for auction.
You may only list a boat for 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 listing a boat for auction on the Website, you are warranting that you meet such minimum requirements.
1. Exclusive Listing Agreement. Seller hereby grants to BoatList, and BoatList hereby accepts, the exclusive and irrevocable right and privilege on behalf of the Seller to list for auction at boatlist.auction (the “Website”) any boat that Seller submits a listing for via the Website (the “Boat”). Such exclusivity shall begin when Seller submits a Boat for auction via the Website and shall continue until the later of (i) the end of the Auction Period (as defined below) for the Boat in a situation where the Reserve Price (as defined below) is not met or (ii) when the Boat is sold to the winning bidder of the auction conducted via the Website or the sales obligation between Seller and such bidder has terminated expired per the terms agreed upon by such parties (the “Exclusivity Period”). For the sake of clarity, during the Exclusivity Period, Seller will not list the Boat for sale or auction through any print or digital format other than the Website, nor will Seller otherwise offer for sale or sell the Boat.
2. Auctions. If Seller wishes to list a boat in a reserve auction, then Seller will set a reserve price for such Boat (the “Reserve Price”), and BoatList will review Seller’s suggested Reserve Price and, together with Seller, will establish the final Reserve Price, which shall be the minimum price at which the Seller’s Boat may be sold. Seller may, subject to BoatList’s approval, lower that Reserve Price while the auction is live. Seller hereby agrees that in the event the Boat receives a high bid at or exceeding the Reserve Price, Seller shall be deemed to have accepted such bid and shall execute a sales contract with the high bidder (the “Buyer”) relating thereto.
3. Seller’s Fee. Seller will be charged an auction fee of $125 USD (the “Seller Fee”) at the time Seller submits a Boat listing’s information for approval. If the Seller’s Boat is rejected by BoatList and not able to be listed for auction via the Website, for whatever reason, BoatList will refund any Seller Fee already paid by Seller with respect to the rejected Boat. Once an auction goes live, the Seller Fee becomes nonrefundable, even if the auction is terminated or suspended and/or does not result in a winning bid and/or a sales transaction. By listing a Boat for auction, Seller authorizes BoatList (and/or its payment processors) to charge Seller’s credit card on file for the Seller Fee. 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 Seller Fee. Seller understands that BoatList will also collect a service fee from the high bidder of the Boat in an amount equal to the lesser (i) of five percent (5%) of the Buyer’s bid and (ii) $20,000.
4. Consummation of a Sale. After a prospective buyer receives notice that the prospective buyer has entered the winning bid for a Boat, the prospective buyer and Seller must directly contact each other to arrange for the payment of the Boat. The Seller and such prospective buyer 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. 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.
5. Seller’s Obligations. Seller agrees to provide to BoatList all information requested by BoatList with respect to the Boat prior to the approval of the Boat being listed for sale on the Website. Following BoatList’s approval of a listing for a boat, the auction will begin at a date and time to be determined by BoatList and will last for a period of at least seven (7) days, which such period to be extended as follows: (i) once the auction clock reaches the two-minute mark, any bid after that time extends the auction for another 2 minutes, and (ii) this repeats until no further bids are placed for one hundred twenty (120) seconds (the “Auction Period”). Seller further agrees that in the event the Boat does not sell during the Auction Period, BoatList may work with the Seller and potential buyers thereafter to facilitate a sale. If Seller and BoatList agree to such further facilitation of a sale, BoatList will use its best efforts to negotiate an agreement between Sellers and the offerors who placed the highest bids during the Auction Period. Seller agrees to not interfere with, prevent or prohibit BoatList in any manner prior to or during the Auction Period or, if applicable, during any subsequent Additional Negotiation Period, from carrying out its duties and obligations under this Agreement. BoatList reserves the right to accept bids on the Sellers behalf if (i) the auction is a reserve auction and the bid is equal to or greater than the Reserve Price or (ii) the auction is not a reserve auction and the bid is the highest of all the auction bids. Within forty-eight (48) hours after BoatList accepts a bid from a buyer, BoatList shall provide Seller with such buyer’s contact information and Seller will be responsible for entering into a sales transaction with such buyer and arranging for payment and delivery of the Boat. Seller agrees to use its best efforts to consummate a sale with the highest bidder following the Auction Period, or with another buyer following the Additional Negotiation Period, as applicable. Seller will permit such highest bidder or other buyer to inspect the Boat after the end of the Auction Period or Additional Negotiation Period, as applicable, and Seller will use reasonable efforts to resolve any Material Undisclosed Issues (as defined below) that are discovered in such inspection. If Seller fails to so resolve any Material Undisclosed Issues within a reasonable timeframe, the Buyer may refuse to consummate the purchase and in such event, the Seller will be charged a fee, equal to the lesser of (i) five percent (5%) of the amount of the winning bid or (ii) $20,000, as a penalty for such failure. In addition, BoatList may ban any such Seller from the Services permanently. 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.
6. 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 buyers who bid at auctions. BoatList cannot and does not control whether buyers will complete the purchase of Boats upon which they have bid, however, BoatList will ban any such buyer from future auctions on the Website if BoatList becomes aware that such buyer has not completed a purchase 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 carry out an auction for the Boat as provided for herein, with the understanding that BoatList makes no warranty or guaranty in connection with whether or not such auction will be successful or whether or not a successful auction will result in a sale of a Boat. As a result, BoatList shall not be liable for any loss suffered by Seller relating to the Boat or the subject matter of this Agreement, 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 Boat. At no time shall BoatList be charged with the custody of the Boat listed hereunder, its management, maintenance, security, insuring, or repair.
7. Seller Default. If the Seller withdraws their boat from the auction during the Auction Period or sells their Boat outside of the Website during the Exclusivity Period, the Seller will be responsible for the BoatList service fee, which will be equal to five percent (5%) of the Reserve Price (the “Liquidated Damages”). If Seller does the foregoing, fails to make the Boat available to Buyer or is unable to supply a transferable title in the Seller’s name within the period agreed upon by Seller and the buyer, Seller will be prohibited from participating in any additional auctions on the Website. Seller and BoatList agree and acknowledge that it would be difficult to ascertain the precise amount of damages incurred by BoatList due to Seller’s default as contemplated by this Section 7 and that the Liquidated Damages provided for herein are a reasonable estimate of those damages. Seller hereby agrees and acknowledges that BoatList (and/or its payment processors) is authorized to charge the amount of the Liquidated Damages against the credit card that BoatList has on file for Seller in the event such Liquidated Damages become due under this Section 7.
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, including as necessary to sell each Boat to a winning bidder. Seller further represents and warrants that: (a) Seller’s title to the Boat 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 Boat 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 Boat; (c) Seller shall not rely on BoatList 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 Boat, including, without limitation, the valuation and condition of the Boat; (d) if the Boat has any material defect, Seller has communicated same to BoatList and BoatList is hereby authorized to disclose such defects and any other material information known by BoatList relating to the Boat in the auction listing for such Boat; (e) the Boat can be auctioned without violation of any federal, state or other law or regulation; (f) the licenses granted to BoatList with respect to the User Content (as defined in the TOS) provided by Seller does not conflict with, violate or infringe upon the rights, including copyright or any other intellectual property rights, or privacy rights, of any person or entity; (g) all of the User Content and other information provided hereunder, shall be true, complete and correct and (h) Seller will not engage in any fraudulent activating (e.g., bidding on your own auction or listing without the intent to sell).
9. Indemnification. Seller 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 Seller of any representation, warranty or covenant made under this Agreement, or (ii) any claim made against BoatList by the high bidder related to the sale, shipping, delivery of, payment for, or transfer of title for, the Boat. Seller 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 Seller becomes aware.
10. 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.
11. Term and Termination. This Agreement commences upon the earlier of (i) when Seller clicks to accept this Agreement via the Website or (ii) Seller submits an auction listing for a Boat 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 list Boats for auction on the Website, at any time for any or no reason and without any notice. You may terminate this Agreement by ceasing to list any Boats for 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, including Section 1 (which shall continue for the duration of the Exclusivity Period. 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.