Effective Date: April 1st, 2016
Welcome to Empire Flippers. We take the friction out of buying and selling websites.
This Agreement is being entered by and between you, the user, and Empire Flippers, LLC (“Broker”). Broker is the owner of an online marketplace for buying and selling websites (“Services”), which are provided subject to the terms of this Agreement. You are referred to as “You”, “Your”, or “Seller”. The person or entity buying the Asset is referred to as Buyer. Buyer and Seller are collectively referred to as the Parties.
BY AGREEING TO THIS AGREEMENT YOU ARE MAKING A FORMAL OFFER TO SELL AN ASSET “AS IS” AND WITHOUT ANY CONTINGENCIES EXCEPT AS OTHERWISE EXPRESSLY PROVIDED. ONLY AGREE TO THESE TERMS AND CONDITIONS IF YOU ARE WILLING AND ABLE TO COMPLETE THE SALE.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE WEBSITE OR SERVICES. WHEN YOU LIST YOUR ASSET FOR SALE, YOU MANIFEST YOUR ASSENT TO THE TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE WEBSITE OR SERVICES. BROKER RESERVES THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN ITS SOLE DISCRETION. IN THE EVENT BROKER MODIFIES, AMENDS, OR REPLACES THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR USE OF THE WEBSITE OR SERVICES AFTER A CHANGE IN THE EFFECTIVE DATE CONSTITUTES YOUR ACQUIESCENCE TO AND ACCEPTANCE OF ANY MODIFICATION, AMENDMENT, OR REPLACEMENT.
A. Offer to Sell and Purchase Price. You have made an offer to sell an Asset through your decision to list the Asset for sale though Broker’s Services.
The first step to listing an Asset for sale is paying a non-refundable listing fee (“Listing Fee”) to Broker. Upon your payment of the Listing Fee and submission of your Asset details, Broker will perform its review of your Asset. Broker, in its sole discretion, will approve or reject your Asset for listing on the Broker’s website and participation in the Services. Broker reserves the right to reject any Asset submission for any reason or no reason at all.
You are also agreeing to provide any ancillary services, including training, as detailed on the listing page of your Asset on Broker’s marketplace.
B. Eligibility. By using the Empire Flippers’ website or Services, you warrant and agree that you are either above the age of majority in your nation, state, province, territory, or city, or the age of eighteen (18), whichever is greater. You warrant that you are of sound mind, have the capacity to contract, and agree to the terms and conditions contained within this Agreement. If you are using the Services on behalf of a business entity or third party, you warrant that you have actual authority to act as an agent of that business entity and third party and have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
C. Seller Warranties. Seller warrants that:
D. Exclusive Listing.
- Seller has the full power and legal authority to execute this Agreement;
- Seller has clear and unencumbered title to the Asset and all related assets to be sold through the Broker’ Marketplace, including all intellectual property rights;
- Seller has not placed the Asset to be sold subject to a mortgage, pledge, lien, or encumbrance, except for those taxes which shall be prorated as of the date of the Completed Migration;
- There are no bankruptcy or reorganization proceedings currently filed against Seller that would impede its ability to complete this Agreement;
- To the best of Your knowledge, there is no lawsuit or pending charge against your Asset; and,
- Seller makes no other express or implied warranties with respect to Seller.
Once your Asset is listed on the Broker’ Marketplace, you agree this is an exclusive listing for a period of six months
(“Listing Term”). Specifically, you agree that Broker is the exclusive permissible method to sell your Asset during the Listing Term. You may not, directly or indirectly, list, solicit offers, or attempt to sell your Asset using any other service, person, or agent for the duration of the Listing Term. If you violate this provision, you agree to pay Broker a commission of fifteen percent (15%) of the total sale price of your Asset to Broker, plus any costs and attorney fees Broker incurs in connection with enforcing this Agreement.
E. Maintenance of the Business During the Listing Period.
During the Listing Period, you agree to maintain your Asset as it was prior to the Listing Period, to the best of your ability. This includes, but is not limited to, maintaining third-party links on the Asset to be sold and other websites and any marketing, advertising, or other referral source, if applicable. During the Listing Period, you also agree to maintain accurate and up-to-date business records and to provide the same to Broker upon request.
F. Sale Terms.
If Broker, in its sole and absolute discretion, approves your Asset for listing in the Broker’s marketplace, Broker will suggest a listing price. Once you agree to that listing price, as evidenced by the listing of your Asset at that price on Broker’s marketplace, you are obligated to accept full listing price offers from Buyers. To be clear, by agreeing to this Agreement, you are deemed to have accepted any full listing price offers on your Asset. Any written confirmation of your acceptance of the listing price, while not required, is incorporated into this Agreement.
G. Migration Process & Inspection Period.
H. Default and Termination.
- The Migration Process is completed when the Buyer confirms sole control and ownership of the Asset or when Broker has confirmed, in its sole and absolute discretion, that Buyer is in control and has ownership of the Asset (“Completed Migration”).
- Buyer shall have a period of fourteen (14) days from the Date of the Completed Migration to fully inspect the operation of the Asset (“Inspection Period”) upon the following terms and conditions:
- During the Inspection Period, Buyer shall have the opportunity to confirm the Asset’s Post-Migration Monthly Net Revenue is consistent with the Asset’s Average Monthly Net Revenue.
- Post-Migration Monthly Net Revenue is defined as the Assets’ monthly gross revenue after the Completed Migration less normal and customary expenses associated with the historical operation of the Asset as provided in the Average Monthly Net Revenue.
- Average Monthly Net Revenue is defined as the most current information regarding the Asset’s average monthly net revenue made available on the Broker’s website.
- Buyer shall have the right to request termination of this Agreement to cancel the sale and obtain a refund of the Purchase Price if the Post-Migration Monthly Net Revenue is less than seventy-five percent (75%) of the Average Monthly Net Revenue during the Inspection Period (“Substantive Deviation”). If the Post-Migration Monthly Net Revenue is seventy-five percent (75%) or more of the Average Monthly Net Revenue, Buyer shall have no right to request to terminate or cancel this Agreement.
- To enforce his ability to request termination of this Agreement based on a Substantial Deviation, Buyer must 1) notify Broker in writing of his request to terminate this Agreement within the Inspection Period at email@example.com or the Zendesk ticket already being used and 2) provide evidence of the Substantial Deviation and Post-Migration Monthly Net Revenue through screenshots or providing Broker access to the Asset.
- If Buyer requests termination of this Agreement consistent with the provisions above, Broker will conduct an investigation into the matter. The Parties agree and understand this investigation could take 2-4 weeks to complete or longer depending on the circumstances (“Broker’s Investigation Period”). Broker may require additional information from the Parties to conduct its investigation and the Parties agree to reasonably comply with such requests.
- If Broker confirms the presence of a Substantial Deviation, Broker will cancel the sale, the Asset will be returned to Seller and the Purchase Price will be returned to Buyer. The Parties agree to cooperate to complete these actions.
- If Broker confirms no Substantive Deviation exists, the sale will close as contemplated consistent with paragraph 7, iv.
- Broker retains full and sole authority to determine the presence or absence of a Substantial Deviation.
- If Buyer fails to provide written notification of his request to terminate this Agreement within the Inspection Period, Buyer is deemed to have freely and voluntarily waived any and all contingences in connection with his purchase of the Asset, including any discrepancies, fluctuations, or changes in the performance of the Asset and specifically its gross revenue, net revenue, expenses, traffic, and other metrics of performance, including any discrepancies, fluctuations, or changes in the performance of the Asset during the Migration Process or during the Inspection Period.
- The Parties are free to waive the Inspection Period and close the sale consistent with paragraph 7, iv at any time.
- Upon expiration of the Inspection Period, or if applicable the Broker’s determination regarding a Substantial Deviation, Broker will release eighty-five percent (85%) of the Purchase Price to Seller, which constitutes the Purchase Price minus Broker’s Commission (“Net Purchase Price”). Broker will retain the Commission.
- The Parties agree to provide Broker all necessary information upon request to facilitate the Migration Process.
Broker reserves the right to terminate the Migration Process at any point for any reason or no reason at all. If Broker terminates the sale, it agrees to return the Purchase Price to Buyer and the Asset to Seller.
I. Remedies for Material Breach.
The Parties, including the Broker, understand and agree that monetary damages would not be a sufficient remedy for any breach of this Agreement and that, in addition to monetary damages and all other rights and remedies available at law or according to the terms of this Agreement, the non-breaching Party, including the Broker, shall be entitled to equitable relief, including injunctive relief, specific performance and/or the granting of an immediate restraining order or preliminary injunction (without posting bond) enjoining any such breach or reasonably anticipated breach as a remedy. Such equitable remedies shall not be the exclusive remedies available to the Parties, including the Broker, for breach of this Agreement, but shall be in addition to all other remedies available at law, equity or according to the terms of this Agreement. At all times, Broker retains complete discretion to cancel any sale and/or Migration Process.
J. Non-Compete Agreement.
Seller agrees not to create or operate an Asset that would directly compete with the Asset for at least three years.
K. Indemnification of Buyer.
L. Limitation of Liability
- Seller agrees to indemnify Buyer from all liabilities arising out of Seller’s operation of the Asset prior to the Completed Migration;
- Buyer has agreed to indemnify Seller from all liabilities arising out of Buyer’s operation of the Asset after the Completed Migration; and
- The Parties agree to indemnify Broker from and against any and all claims, demands, judgments, liabilities, costs, and fees, including attorneys' fees, arising out of or related to this Agreement. The Parties’ obligation to defend Broker will not provide the Parties with the ability or right to control Broker’s defense, and Broker reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel.
YOU AGREE THAT THE SERVICES ARE PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT, AND TITLE. YOU AGREE THAT BROKER WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE EMPIRE FLIPPERS’ WEBSITE OR SERVICES OR OTHER DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT BROKER’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR SERVICES OR $1,000, WHICHEVER IS LESS.
M. Indemnification of Broker.
You agree to hold harmless, defend, and indemnify Broker from and against any and all claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arising out of or related to: (1) the use of the Empire Flippers’ Website; (2) the use of any Service; (3) the review and listing of your website for sale; (4) the violation of any term or condition of this Agreement; (5) the violation of the rights of third parties, including rights of privacy or publicity or intellectual property rights; and (6) the violation of any law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international. Your obligation to defend and indemnify Broker will not provide you with the ability or right to control Broker’s defense, and Broker reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel.
N. General Provisions.
- Fair Market Value. The Parties each acknowledge the Purchase Price represents fair market value.
- Costs. The Parties agree to pay their own costs and expenses incurred with respect to this Agreement.
- Valid and Binding Agreement. This Agreement represents a binding legal obligation and is enforceable in accordance with its terms and is binding and shall inure to the benefit of each Parties’ respective heirs, legal representatives, successors, and assigns.
- Confidentiality. The Parties agree to maintain complete confidentiality regarding this Agreement.
- Waivers. A waiver by either Party to any provision of this Agreement does not constitute a waiver of any other provision of this Agreement.
- Notices. Any notice to Broker required under this Agreement shall be in writing and shall be deemed properly given when emailed to XXX.
- No Third-Party Beneficiaries. Except as otherwise provided, nothing in this Agreement will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy, or right of any kind. This Agreement is not a third-party beneficiary contract.
- Sections and Headings. The sections and headings in this Agreement are for organization and clarification purposes only and should not be interpreted as part of this Agreement.
- Choice of Laws and Venue. Parties and Broker agree that any and all claims arising out of or related to this Agreement brought by or against Broker, including its validity, interpretation, breach, violation, or termination, shall be brought in the exclusive forum of the Kalamazoo County Circuit Court and pursuant to Michigan law. The Parties expressly consent to personal and subject matter jurisdiction in this forum. The prevailing party is entitled to payment of its costs, expenses, and attorney fees by the non-prevailing party for actions, disputes, or litigation arising out of or related to this Agreement.
- Entire Agreement. Except as otherwise provided, this Agreement is the entire agreement between the Parties. This Agreement supersedes any prior written or oral agreement between the Parties.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
- Amendments. This Agreement may be amended in writing if both Parties sign and date in writing.
- Effective Date. The Effective Date of this Agreement is the date it is agreed to by Buyer.