Exhibit A – SBX Cars - Terms and Conditions to Seller Agreement 1. Definitions in this Agreement
Unless otherwise defined herein, the following words and expressions shall (unless the context otherwise requires) have the following meanings:
1.1 “Auction Period” means the period beginning on the hour the Lot is offered for sale by way of auction on the SBX platform and ending seven (7) days later.
1.2 “Buyer” means the person to whom the Lot is sold.
1.3 “Buyer’s Fee” means a fee equal to five percent (5%) of the Sale Price, together with any applicable sales or use tax and any fees or duty due on the applicable Lot, payable by Buyer to SBX.
1.4 “Catalog” includes any advertisement, brochure, price list, descriptions and other publication referring to the Lot.
1.5 “Expenses” means, in relation to the sale of a Lot, SBX’s out of pocket costs for photographs, illustration, special advertising, SBX-prepared descriptions of the Lot, packing, storage, duties, freight and any other such costs incurred by SBX in connection with a Lot.
1.6 “Listing Fee” means the listing fee charged to Seller for listing the Lot for sale, together with any applicable sales or use tax and any fees or duties due on the Lot, payable by Seller to SBX.
1.7 “Lot” means the vehicle identified on the Seller Order Form of this Agreement and in any attachment to this Agreement.
1.8 “Marketing Fee” means any fee related to the Marketing Services, payable by Seller to SBX.
1.9 “Marketing Services” has the meaning set forth below in Section 3 of this Agreement.
1.10 “Person” means any entity or natural person.
1.11 “Preview Period” means, if applicable, the period in which the Lot is available for viewing and inspection by potential bidders prior to the Lot becoming available for sale, as agreed to between SBX and the Seller in writing for an agreed upon fee.
1.12 “Purchase Price” means the sum of the Sale Price, the Buyer’s Fee, and any sales, use or other tax due to any governmental authority as a result of the sale of the Lot hereunder, plus any Expenses payable by a Buyer.
1.13 “Reserve Price” means the confidential minimum price, if any, that has been agreed to in writing between SBX and the Seller below which the Lot will not be sold, except as set forth herein.
1.14 “Sale Price” means the price in U.S. dollars at which a Lot is purchased at the completion of a sale.
1.15 “SBX Platform” means SBX’s website, located at sbxcars.com.
1.16 “Withdrawal Fee” means $5,000 U.S. dollars.
2. Transaction Process
2.1 Seller hereby grants to SBX and SBX hereby accepts the exclusive and irrevocable right and privilege on behalf of the Seller to offer for sale the Lot during the term of this Agreement (the “Term”). The Term shall begin on the Effective Date and shall continue
(i) in the case of the Lot being offered for sale by way of online auction, until the conclusion of the Post-Auction Period and
(ii) in all other cases, until such date as is mutually agreed between the parties, unless this Agreement is otherwise terminated in connection with Section
14. The parties will agree in writing the manner in which the Lot will be offered for sale. Any offering of the Lot for sale by SBX on the SBX Platform shall be subject to the SBX Terms of Service (“TOS”) in effect at the time that the Lot is offered for sale on the SBX Platform. In the event of any conflict between the TOS and this Agreement, the terms of this Agreement shall control. Ownership of, possession of, and title to the Lot shall remain in and with Seller until the Lot is sold by Seller to a Buyer at the Sale Price pursuant to the terms of this Agreement, at which moment a binding contract is made between Buyer and Seller whereupon title and risk of loss relating to the Lot passes to Buyer. Until a Lot is sold to a Buyer, the Lot shall remain with Seller. For the avoidance of doubt, Seller acknowledges that possession, title, and risk of loss relating to the Lot shall under no circumstances be transferred to SBX at any time.
2.2 Listing for Sale With or Without Reserve.
(a) Should Seller choose a Reserve Price for the Lot, Seller hereby agrees that in the event the Lot 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 Buyer relating thereto.
(b) In the event that Seller chooses to offer the Lot without a Reserve Price, Seller hereby agrees that the Lot shall be auctioned or otherwise sold “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.
2.3 Seller agrees that the right to offer the Lot for sale during the Term is exclusive to SBX. Accordingly, Seller hereby acknowledges and agrees that upon execution of this Agreement, during the Term, Seller may not list, post, or otherwise make available for sale the Lot on or with any other Person or by way of any other service (including but not limited to, any other auction or listing service, dealership, or broker), or otherwise make such Lot available for sale, and agrees to remove or take down, within two (2) days of the full execution of this Agreement, any listings where the Lot is represented or offered for sale outside of the SBX Platform.
2.4 Seller acknowledges and agrees that SBX is under no obligation to offer the Lot for sale until SBX and Seller have completed all set-up requirements that SBX reasonably requires for such sale, including to ensure that the listing of the Lot on the SBX Platform is made available to the public.
3. Marketing
3.1 In addition to listing the Lot on the SBX Platform, SBX offers separate marketing services to enhance the visibility and appeal of a Lot, including automotive photography, copywriting, and vehicle history report services (the “Marketing Services”). The Marketing Services are optional and not a mandatory part of listing a Lot on the SBX Platform; Seller may choose to purchase these services from SBX at Seller’s discretion. The Marketing Services are offered at an additional cost, separate from the Listing Fee. The amount of the Marketing Fee will be communicated to the Seller prior to the commencement of the Marketing Services. The Marketing Fee is due upon Seller’s receipt of an invoice from SBX and prior to the commencement of any Marketing Services and SBX reserves the right to withhold or suspend the Marketing Services if payment is not received in a timely manner.
3.2 SBX shall own the copyright on all illustrations, photographs and written descriptions of the Lot produced by or on behalf of SBX, and Seller shall have no right, title or interest therein. Seller grants SBX an irrevocable, perpetual right and license to use any photographs, illustrations or descriptions provided by Seller in connection with SBX’s performance under this Agreement and on SBX’s marketing and advertising materials.
4. SBX Discretion
SBX shall have sole discretion to set the time and manner at which the sale of the Lot is conducted, and engage in any other activities necessary or conducive to offering the Lot for sale. SBX shall have the discretion to revise the details of, or cancel, the offering of the Lot. Subject to any agreement between the Parties as to any Marketing Services, SBX shall have sole discretion with regard to the advertising, marketing and previewing of the Lot, and the description and illustration of the Lot in any Catalog. SBX shall have the right, but not the obligation, to consult with third parties concerning the condition and merchantability of the Lot, to refuse any bid or offer on the Lot, and if the Lot consists of multiple vehicles, to divide the Lot for sale.
5. Settlement of Account
5.1 It is the sole responsibility of Seller and the Buyer to settle their accounts and arrange for delivery of the Lot to Buyer independently of the SBX Platform. Except in connection with SBX charging its applicable fees hereunder, SBX will not be involved in the financial transaction between Seller and Buyer with respect to the purchase of a Lot on the SBX Platform, and for the avoidance of doubt, SBX has no obligation to enforce payment from Buyer in respect of any Lot.
5.2 Within forty-eight (48) hours of the time at which Seller receives the Purchase Price from Buyer, Seller shall make the Lot available for Buyer to retrieve or arrange for the shipment thereof unless other arrangements have been made and agreed upon between Buyer and Seller. While SBX may, at its discretion, provide referrals to Buyer or Seller with respect to shipping options, SBX shall not be liable or responsible for arranging payment and delivery for the Lot.
5.3 If Seller has not received the Purchase Price within fourteen (14) days after the date of the sale of the Lot, Seller shall be entitled to rescind the sale and cancel delivery of the Lot by giving timely notice of such election to SBX.
6. Unsold Lots
If a Lot offered by way of online auction does not sell in such auction, Seller acknowledges that SBX shall have the sole and exclusive right, but not the obligation, to sell the Lot for a period equal to [twenty (20)] days following the sale at which the Lot was offered (the “Post-Auction Period”), for any price, provided that Seller shall be paid an amount no less than the net amount to which Seller would have been entitled had the Lot sold at a price equal to the Reserve Price (and in the case that the Lot sells at a price lower than the Reserve Price, with SBX providing to Seller a portion of the applicable Buyer’s Fee sufficient to make Seller whole in such respect), in each case unless an updated selling price has otherwise been agreed upon by SBX and the Seller. Seller acknowledges and agrees that SBX’s assistance in negotiating any post- auction sale during the Post-Auction Period will not in any way make SBX a party to such sale between Seller and any buyer of the Lot.
7. Risk of Loss or Injury
Unless otherwise mutually agreed in writing, SBX shall not be liable for any loss or damage to or caused by all or any portion of the Lot unless such loss is directly caused by the gross negligence or willful misconduct of SBX or its employees or agents to the extent the Lot is in SBX’s possession. Title and risk of loss for any purchase of a Lot passes to Buyer at the time the Sale Price is paid by Buyer, and neither SBX nor any of its employees or agents shall be liable for loss or damages to the Lot from and after that time.
8. Insurance
8.1 Unless otherwise mutually agreed in writing, Seller, at no expense to SBX, shall cause each Lot to be and remain insured from the Effective Date through sale of the Lot and until the Lot is in the care of the Buyer (or, in the case where the Lot is not sold, until the termination of this Agreement), against theft, loss and damage, for an amount equal to the greater of:
(a) the Sale Price (if the Lot has been sold);
(b) the Reserve Price (if a reserve has been agreed); or
(c) where there is no Reserve Price, the average pre-sale estimate set forth on the Seller Order Form.
8.2 Seller expressly acknowledges and agrees that SBX shall be under no obligation to carry any insurance policy against risk of any loss, theft or damage to the Lot at any time and SBX assumes no liability for any loss or theft of or damage to the Lot.
8.3 Seller shall furnish certificates, policies or endorsements to SBX as proof of such insurance.
9. SBX Estimates and Descriptions
9.1 SBX makes no warranty or representation as to the anticipated or likely selling price of the Lot. Any written or oral estimate (whether or not printed in any Catalog) given by SBX,
its officers, employees or agents as to the estimated selling price of the Lot is a statement of opinion only, and may be revised from time to time in SBX’s sole discretion and may not be relied upon as an indication of the actual selling price for the Lot. SBX shall not be liable for the failure of any Lot to be sold at a price below such estimate or expected price or to reach the Reserve Price, if any.
9.2 SBX shall not be liable to Seller for any error, or misstatement in, or omission from the description of a Lot in any Catalog. SBX shall have no duty to the Seller to investigate the accuracy of the description of any Lot provided by or on behalf of the Seller.
9.3 SBX is entitled to alter the description of any Lot at any time other than with respect to a Lot made available by auction where such Lot has at least one bid (an “Active Bid Lot”). SBX is entitled to alter the description of any Active Bid Lot, but only to the extent that such alteration would not reasonably be expected to negatively impact the valuation of the Active Bid Lot. For any substantive or material alterations, SBX will provide written notice of such revisions to Seller.
9.4 Seller agrees to provide all information requested by SBX in connection with a Lot (including, without limitation, information related to establishing a valuation of a Lot), and to abide by the terms of the [SBX Cars Terms of Use] that Seller enters into with SBX with respect to Seller’s use of the SBX Platform and the related services. In the event of any conflict between any terms of the [SBX Cars Terms of Use] and this Agreement, this Agreement shall supersede and control.
10. Seller's Representations and Warranties
10.1 Seller represents and warrants that:
(a) If Seller is an individual, then Seller is at least eighteen (18) years of age.
(b) Seller has provided SBX with true and correct copies of all required Lot registration documentation, as reasonably requested by and satisfactory to SBX (which may include, without limitation, copies of
(i) a government-issued form of identification (e.g. a copy of a driver’s license or passport),
(ii) Seller’s physical address,
(iii) Seller’s credit card information, and
(iv) documentation evidencing Seller’s ownership of the Lot.
(c) If Seller is an entity, then the person signing this Agreement on behalf of Seller has full right, title and authority to make and enter into this Agreement, and to make and enter into a binding agreement with Buyer.
(d) The Lot is now and will be upon sale free and clear of all liens, claims and encumbrances.
(e) Seller has good and marketable title and right to possession to the Lot and that the same will pass to Buyer upon completion of the sale of the Lot. If the Lot is not titled, Seller agrees that it shall provide its bill of sale for the Lot and such other documentation as shall reasonably be requested by SBX as proof of ownership and right to sell.
(f) Seller has complied with all laws relating to the purchase, maintenance, export or import of the Lot prior to the sale of the Lot.
(g) Any descriptions, photographs, illustrations or other materials relating to the Lot provided by Seller are accurate, complete and not misleading.
(h) Seller has provided SBX with all written material in Seller's possession or control and has notified SBX in writing of all of Seller's knowledge concerning the authenticity, provenance, origin, age, condition, quality and any material alterations to the Lot as well as any facts or opinions expressed by third parties in relation to the Lot that could affect any of the foregoing.
(i) There are no restrictions, legal or otherwise, affecting SBX’s right (or right to engage third parties on SBX’s behalf) to photograph, reproduce photographs of, exhibit or describe the Lot. Seller hereby grants to SBX (and any third party acting on SBX’s behalf) the right to illustrate and photograph the Lot and to use Seller's name in connection with the Lot.
(j) Seller is not (and if Seller is an entity, then neither the entity nor any owners or investors or any of their directors, officers, employees, agents or affiliates acting on behalf of such entity are)
(i) resident in any country or jurisdiction under a U.S. embargo enforced by the Office of Foreign Assets Control or
(ii) prohibited from the transaction pursuant to U.S. anti-money laundering, anti-terrorist, economic sanctions and asset control laws.
10.2 Seller agrees to notify SBX promptly in writing of any events or circumstances that may cause the foregoing representations and warranties to be inaccurate or breached in any way.
11. Indemnification
Seller shall indemnify, hold harmless and defend SBX, its directors, officers, agents and employees, from and against any and all losses, damages, liabilities, claims, and all fees, costs and expenses of any kind related thereto (including, without limitation, attorneys' fees) arising out of, based upon or resulting from (a) the Lot, including any and all claims of ownership or right to possession of the Lot or sale proceeds, (b) any breach or alleged breach of any representation, warranty or covenant made by Seller under this Agreement or any breach or alleged breach by Seller of any applicable law or regulation, or (c) any active or passive negligence or willful misconduct by Seller, its agents, representatives, or employees with respect to the Lot consigned hereunder.
12. Fees
12.1 Seller acknowledges that each Lot submitted for sale by Seller is binding on the Seller with respect to any Listing Fees, Marketing Fees or Expenses owed by Seller to SBX, irrespective of whether a sale is made. Seller acknowledges SBX’s right to charge, collect and retain for its own account the full amount of any such fees or Expenses in accordance with the terms set out in the Seller Order Form.
12.2 Seller acknowledges SBX’s right to charge, collect and retain for its own account the full Buyer's Fee upon sale of the Lot, which Buyer’s Fee will be charged to and collected from Buyer.
13. Reserves
13.1 The Lot will be sold without reserve unless a Reserve Price has been agreed by SBX and the Seller, as specified on the Seller Order Form or otherwise in writing signed by the parties. Any Lot being offered for sale subject to a Reserve Price may be identified as such prior to the sale of the Lot and will not be sold for less than the Reserve Price at auction except as otherwise provided herein.
13.2 Seller may reduce or waive the Reserve Price at any time during the auction of the Lot through the SBX Platform.
13.3 Neither the Seller nor any agent of the Seller may bid on the Lot, directly or indirectly. If any such bid is nonetheless made, SBX may withdraw the Lot without observing any Reserve Price and the Seller shall pay to SBX the Withdrawal Fee in addition to any Expenses payable by Seller hereunder as well as any other outstanding fees owed to Seller, such as the Marketing Fee.
13.4 In no event shall SBX be liable for any failure of any Lot to be sold at any estimated or expected price or for the failure of bidding on the Lot to reach any Reserve Price.
14. Withdrawal
14.1 During the Term, no Lot may be withdrawn from the transaction process described in Section 2 above without SBX’s prior written consent. If SBX consents to such a withdrawal, SBX shall be entitled to charge the Withdrawal Fee, plus Expenses incurred by SBX with respect to the Lot, plus any associated costs or Expenses, including, if applicable, the Marketing Fee, incurred and owed by Seller.
14.2 SBX reserves the right in its sole discretion to withdraw any Lot at any time. In the event SBX withdraws such Lot due to SBX’s reasonable doubt as to the accuracy of any of Seller's representations or warranties or actual or alleged breach of any provision of this Agreement, the TOS or any other policies of SBX by Seller, Seller shall be liable to SBX for the Withdrawal Fee, plus Expenses incurred by SBX with respect to the Lot, plus any associated costs or Expenses incurred and owed by Seller, including, if applicable, the Marketing Fee.
14.3 In addition, in connection with any withdrawal, Seller shall reimburse to SBX, on a full indemnity basis, any and all legal or other investigative fees or costs incurred by SBX in the investigation or defense of any claim concerning title to the Lot, the Seller's right to sell the Lot or the accuracy of the description of the Lot provided by Seller.
15. Termination
If either party is in material breach of any provision of this Agreement and such party has failed to cure (to the extent curable) such breach within thirty (30) days after receipt of written notice from the other party specifying such breach, then the non-breaching party shall have the right to terminate this Agreement in its entirety by delivering written notice to the breaching party with immediate effect. Notwithstanding the termination of this Agreement in accordance with this Section, Seller agrees that any and all fees which have theretofore accrued or otherwise have become payable to SBX shall be paid by Seller in accordance with the terms set forth in this Agreement. Notwithstanding anything to the contrary, the rights and obligations of the parties under any provision(s) which, by its or their terms, is intended to apply or continue
to apply following expiration of this Agreement shall survive the expiration or earlier termination of this Agreement.
16. Miscellaneous
16.1 This Agreement and the TOS constitute the entire agreement between the parties concerning their rights and obligations with respect to the subject matter hereof. Any agreements or representations respecting the Lot or its sale not expressly set forth in this Agreement or the TOS shall have no effect, except for a subsequent written modification signed by the parties hereto.
16.2 This Agreement shall be binding on the parties hereto, their heirs, distributees, executors, legal representatives, successors and assigns.
16.3 This Agreement is personal as to the parties hereto and no party hereto may assign its rights or delegate its obligations hereunder, in whole or in part, to any third party without the prior written consent of the other party, and any such assignment or delegation, in the absence of such consent, shall be void and without effect. Notwithstanding the foregoing, SBX shall have the right to transfer this Agreement to any affiliate of SBX, or in connection with any assignment by operation of law, merger, sale of all or substantially all of the assets or equity of SBX, or change in control of SBX.
16.4 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. The parties hereby irrevocably consent to the jurisdiction of a federal or state court located in California with respect to any matter arising under this Agreement.
16.5 All actions or proceedings arising in connection with or relating to this Agreement (including, without limitation, any breach or alleged breach hereof and/or dispute regarding the scope / interpretation of this Section 15.5) shall be submitted to Judicial Arbitration and Mediation Services (“JAMS”) for final, binding and non-appealable arbitration before a sole neutral arbitrator in its [[___] County] offices pursuant to JAMS Comprehensive Arbitration Rules and Procedures. To the fullest extent permitted by law, and notwithstanding anything else in this Agreement, Seller and SBX agree that any claims subject to arbitration hereunder that are brought by SBX, by Seller or on Seller’s behalf shall be decided by the arbitrator on an individual basis and not on a class, collective or representative basis. The arbitrator shall be chosen by mutual agreement between the parties who are parties to the arbitration. The arbitrator shall, in accordance with JAMS rules and procedures, allow the parties an opportunity to discover relevant information from the opposing parties about the subject matter of the dispute. The Parties expressly agree that the arbitrator shall be authorized to issue third-party subpoenas for purposes of discovery. The provisions of California Code of Civil Procedure § 1283.05 are incorporated by reference herein. Any arbitration hereunder may be consolidated by JAMS with the arbitration of any other dispute arising out of or relating to the same subject matter when the arbitrator determines that there is a common issue of law or fact creating the possibility of conflicting rulings by more than one (1) arbitrator. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law. Nothing contained in this Section 15.5 shall be construed to limit or preclude SBX from bringing a judicial action for injunctive or other provisional relief to compel Seller to comply with its obligations under this Agreement (unless
otherwise proscribed hereunder) during the pendency of the arbitration proceedings. Judgment upon an arbitration award rendered may be entered in any court having jurisdiction over the matter hereof. The Parties hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts located within the City of Los Angeles, County of Los Angeles for this purpose and waive any objection to the venue of any proceeding in such court or the defense that such court is an inconvenient forum. The prevailing party in any such action or proceeding shall be entitled to recover its costs and expenses (including reasonable actual attorneys’ fees and costs) incurred in connection therewith, whether incurred before or after the entry of judgment / issuance of final decision. In the event of a breach of this Agreement by SBX, Seller’s remedies shall be limited to an action at law for damages (if any) and Seller hereby waives any and all rights to seek or obtain injunctive or other equitable relief. In addition, Seller hereby irrevocably waives any and all rights to seek or obtain injunctive or other equitable relief against or otherwise in connection with any projects of SBX or SBX affiliate or joint venturer of SBX or any SBX affiliate as well as any and all rights to initiate or maintain any action or seek any remedy that could interfere with the development, production, distribution and/or exploitation of such any projects (or any rights therein or elements thereof).
16.6 All notices, requests, demands and other communications permitted or required hereunder shall be in writing and shall be deemed to have been duly given if personally delivered, sent by overnight courier to the party named and address listed in the Seller Order Form or to such other parties or addresses as the parties from time to time designate in writing, or if given via the SBX Platform. Such notices, requests, demand and other communications shall be deemed to have been duly given and received on the date of delivery when personally delivered, or on the date received if sent by overnight courier.
16.7 The waiver by any party of a breach of any covenant, agreement or undertaking contained herein shall be made only by a written waiver in each case, and no such waiver shall operate or be construed as a waiver of any prior or subsequent breach of the same covenant, agreement or undertaking. Except as otherwise specifically provided herein, the exercise of any remedy provided by law or otherwise, and the provisions of this Agreement for any remedy, shall not exclude any other remedy.
16.8 If any provision of this Agreement shall be held invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of the remaining part of such provision, and the validity, legality and enforceability of the other provisions hereof shall not be affected thereby. Any provision of this Agreement which is held invalid, illegal or unenforceable in any jurisdiction shall not be deemed invalid, illegal or unenforceable in any other jurisdiction.