1. Services. By accepting this Agreement as required during the online check-out process, you (the "Seller") authorize Instant Auctions, Inc. (hereby referred to as "Instant Auctions") to provide the following services in accordance with the terms and conditions of this Agreement: to (1) receive and store the item you have described (the "Item"), (2) list, offer and sell the Item on eBay, (3) deliver the Item to the buyer, if there is one, and (4) collect the sales price from the buyer, deduct Instant Auctions' sales fees ("Sales Fee") and eBay's fees and forward the remainder of the sales price to the Seller in check form in accordance with the "Services" below.
2. Rights. By accepting this Agreement, the Seller confirms that they are at least 18 years of age, are the legal owner of the Item, and have the right to sell the Item.
3. Binding Bids. The Seller is obligated to complete the transaction with the highest bidder upon the listing's completion, unless there is an exceptional circumstance, such as, (a) the buyer fails to pay for the Item, or (b) Instant Auctions cannot authenticate the buyer's identity.
4. Unsold Items. Should the Item fail to sell after being listed on eBay, the Seller hereby authorizes Instant Auctions to hold the item for pickup by the Seller. After the Seller has been notified that the Item did not sell, they have 10 days to pick up the Item before it becomes the property of Instant Auctions, where it will be either auctioned on eBay with no reserve or donated to charity. Before unsold Items are returned, the Seller agrees to pay the eBay listing fees associated with the item (minimum of $1). Items can be shipped back to the Seller if they agree to pay the return shipping cost.
5. Payment to the Seller. As consideration for the services, the Seller agrees Instant Auctions will be entitled to collect the Sales Fee according to the following formula: twenty-eight percent (28%) if the Sales Price is between $0 and $499.99, twenty-three percent (23%) if the Sales Price is between $500 and $999.99, and eighteen percent (18%) if the Sales Price is $1,000 or higher for which the Item is sold (the "Sales Price"), OR $7.99, whichever is greater, plus a 2.9% transaction fee and any eBay charges incurred in the process of selling the Item. Following receipt by Instant Auctions of the Sales Price from the buyer, Instant Auctions is authorized by the Seller to deduct the Sales Fee from the final sale price and forward the remainder to the Seller at the mailing address as stated by the Seller in their online account profile at the time the payment is initiated, within two (2) weeks from the date of receipt of the Sale Price.
6. Bailment Relationship. The relationship between Instant Auctions and the Seller is that of bailor and bailee in which the bailee (the Seller) deposits his personal property (the Item) with the bailor (Instant Auctions) for the purpose of listing and selling the Item to third parties through eBay. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
7. Title and Risk of Loss. Title and risk of loss for the Item remains with the Seller until such time as the Item is delivered to a carrier for delivery to the buyer. Title and risk of loss will not transfer to Instant Auctions at any time. Title to the Item shipped will pass directly from the Seller to the Buyer.
8. Seller's Warranty of Goods. The Seller warrants that (1) the Seller has all the necessary rights and authorization to produce and distribute the Item and to permit Instant Auctions to offer, sell and deliver the Item to any third party, (2) the Item and the rights granted under this Agreement do not infringe the proprietary rights of any third party, and (3) the description of the Item is truthful, accurate, and complete. The Seller represents and warrants that the description of the Item and the Item itself will not: be false, inaccurate or misleading, fraudulent, or involve the sale of counterfeit or stolen items, violate any law, statute, ordinance, or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising), defamatory, trade libelous, unlawfully threatening or unlawfully harassing, obscene or contain child pornography or otherwise adult in nature or harmful to minors.
9. Breach. Without limiting other remedies, Instant Auctions may immediately remove the Seller's Item listing from eBay, temporarily suspend, indefinitely suspend, or terminate the Services and refuse to provide future Services to the Seller if (1) the Seller breaches this Agreement, (2) Instant Auctions is unable to verify or authenticate any information the Seller provides to Instant Auctions, (3) Instant Auctions believes that the Seller's actions may cause financial loss or legal liability for the Seller, Instant Auctions' users, or Instant Auctions, or (4) Instant Auctions suspects that the Seller (by conviction, settlement, insurance, escrow investigation, or otherwise) has engaged in fraudulent activity in connection with the Item, Instant Auctions, or eBay.
10. Indemnity. The Seller agrees to indemnify and hold Instant Auctions and (as applicable) Instant Auctions' parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due, connected to, or arising out of the Seller's breach of this Agreement, or the Seller's violation of any law or the rights of any third party.
11. Warranty Disclaimer. Instant Auctions provides its services "as is" and without any warranty or representation as to the Services, express, implied, or statutory. Instant Auctions specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to the Seller. This warranty gives the Seller specific legal rights and the Seller may also have other legal rights that vary from state to state.
12. Waiver of Consequential Damages. In no event will Instant Auctions be liable to the seller for any incidental, consequential, exemplary, indirect, special, or punitive damages arising out of this Agreement or its termination, regardless of the form of action (including negligence and strict product liability) and irrespective of whether Instant Auctions has been advised of the possibility of any such loss or damage.
13. Liability Cap. Instant Auctions' liability, and the liability of its employees and suppliers, to the Seller or any third parties in any circumstance is limited to the greater of (1) the estimated value of the applicable Item, as described by the Seller, or (2) $100. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the Seller.
14. Release. The Seller releases Instant Auctions and eBay (and Instant Auctions' officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, resulting from, or in any way connected with the Services. If the Seller is a California resident, the Seller waives California Civil Code p.1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
15. Term. The term of this Agreement will commence upon completing the online check-out process for the Item (the "Effective Date") and unless terminated earlier in accordance with the terms of this Agreement, will continue until the Item accepted for listing by Instant Auctions under this Agreement is sold and delivered, returned to the Seller, or disposed of in accordance with Section 3, but in no event more than sixty (60) days from the Effective Date. This Agreement may be terminated by Instant Auctions without notice, for any reason, or no reason, at any time.
16. Survival of Certain Terms. The following Sections will survive the termination of this Agreement for any reason: 3,5,6,7,8,9,10,11,12,13,15 and 16. All other rights and obligations of the parties will cease upon termination of this Agreement.
17. General. This Agreement will be governed in all respects by the laws of the United States of America and the State of Kentucky as such laws are applied to agreements entered into and to be performed entirely within Kentucky between Kentucky residents. All notices or requests will be in writing and will be sent by facsimile, or recognized commercial overnight courier. Notices will be deemed received upon receipt of written confirmation of transmission when sent by facsimile, or signing for receipt of delivery if sent by overnight courier. Notices will be sent to the parties at the address set forth in the Mailing Address as stated by the Seller in their online account profile at the time the notice is initiated. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement will be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. This Agreement and the exhibits hereto, constitute the entire Agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof with the exception of any prior confidentiality agreements between the parties. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.