THIS SELLER’S AUCTION SERVICE AGREEMENT (the “Agreement”) is made and entered into as of this day of , 20 , by and between 78Cars, LLC (“JDMSupply”), and the undersigned owner(s) of personal property (the “Seller”). JDMSupply and Seller agree as follows:
1. Exclusive Listing Agreement. Seller hereby grants to JDMSupply and JDMSupply 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.jdmsupply.com the “Website”)
2. Listing for Sale With or Without Reserve.
- Listing for Sale with Reserve. Should Seller choose a form of auction in which a minimum price at which the Vehicle or Item may be sold (the “Reserve Price”) is established between the Seller and JDMSupply, Seller hereby agrees that in the event the Vehicle or Item receives a high bid or other offer at, or exceeding the Reserve Price, Seller shall be deemed to have accepted such offer and shall execute a sales contract with the high bidder or other offeror (the “Buyer”) relating thereto. At the sole discretion of JDMSupply, a portion of the proceeds may be paid to the buyer or seller by JDMSupply should a bid fall short of the Reserve Price in order to meet the final reserve price.
- In some rare cases at the sole discretion of JDMSupply, a portion of the proceeds may be paid to the buyer or Seller by JDMSupply should a bid fall short of the Reserve Price. The Reserve Price shall be established between the Seller and JDMSupply prior to the commencement of the auction.
- Listing for Sale Without Reserve. In the event that Seller chooses a form of auction without a Reserve Price, Seller hereby agrees that the Vehicle or Item shall be auctioned “absolute, without reserve,” so that Seller shall be deemed to have accepted the highest bid from a qualified bidder or other offeror without limiting condition as to the amount of the high bid or other offer or the nature of the Buyer and shall execute a sales contract with the Buyer relating thereto.
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 JDMSupply, as compensation, the amount stated in the attached fee schedule which will be retained by JDMSupply as part of JDMSupply’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 JDMSupply all information requested by JDMSupply 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 JDMSupply, 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 agrees to not interfere with, prevent or prohibit JDMSupply in any manner prior to or during the Initial Auction or, if applicable, during the Fixed Price, from carrying out its duties and obligations under this Agreement. JDMSupply 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 JDMSupply 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. JDMSupply shall not be liable or responsible for arranging payment and delivery of the vehicle or item.
5. JDMSupply’s Obligations; Disclaimers. The Website is a public venue where persons can sell and buy property. Unless otherwise expressly stated by JDMSupply, JDMSupply is involved only as a facilitator in the transaction between buyers and sellers. As a result, JDMSupply 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. JDMSupply 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, JDMSupply cannot and does not confirm that each user is who he or she claims to be. Unless otherwise expressly set forth herein, JDMSupply’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 JDMSupply 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 JDMSupply 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. JDMSupply 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 JDMSupply platform during the Initial Auction Period, the Seller will be responsible for the JDMSupply 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 or is unable to supply a transferable title in the seller’s name within the Delivery Period, Seller shall be in default under this Agreement and shall be obligated to pay to JDMSupply, as liquidated damages, any amount of money that JDMSupply determines in its sole discretion, including without limitation the Buyer's premium fee, administrative charges, any and all collection agency and attorney fees or other expenses incurred by JDMSupply, on the basis of Seller’s default. Seller and JDMSupply agree and acknowledge that it would be difficult to ascertain the precise amount of damages incurred by JDMSupply 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 JDMSupply is authorized to charge any amount mentioned in this Section against the credit card that JDMSupply 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 JDMSupply 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 JDMSupply 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 JDMSupply and JDMSupply is hereby authorized to disclose to any potential Buyer any such defects and any other material information known by JDMSupply 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 JDMSupply shall be true, complete and correct.
9. Seller hereby agrees to indemnify JDMSupply, 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 JDMSupply 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 JDMSupply, 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 JDMSupply or third parties on behalf of JDMSupply may create within JDMSupply’s sole discretion (collectively “Works,” which Works shall be owned solely and exclusively by JDMSupply), 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 JDMSupply that said license granted to JDMSupply 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.
78Cars LLC, dba JDMSupply:
9112 E VERDE GROVE VIEW
SCOTTSDALE, ARIZONA 85255
Seller: To the address which Seller provides when registering as a member of JDMSupply.
12. Governing Law. This Agreement shall be governed by the laws of the State of Arizona 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 Arizona, sitting in Maricopa County, and the courts of the United States for Arizona.
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 Arizona law and shall be decided by a panel of arbitrators or an arbitrator located in Maricopa County, Arizona. 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 JDMSupply 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.
- Reserve or Non-Reserve Auction:
* Seller understands that JDMSupply will also collect a four percent (4%) service fee from the Buyer.
Enthusiast cars from the 1980s to now
Engaged buyers nationwide
Receive 100% of the sale price
Pay only the listing fee
We will get your auction started quickly