Effective Date: April 2nd, 2020

Terms of Use

We are Empire Flippers, LLC (“Empire”). We take the friction out of buying and selling online businesses.
This Terms of Use Agreement (“Agreement”) contains important provisions regarding the use of empireflippers.com (the ‘Website”) and all other services, including the brokerage services to sell assets related to a website or other online business through Empire Flippers (the “Services”). You should review this Agreement carefully before deciding whether to use Empire’s Services, including but not limited to listing assets or purchasing assets through the Services. If you do not agree to the terms contained within this Agreement, you should not use Empire’s Services or Website.

THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE WEBSITE OR SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE WEBSITE OR SERVICES. EMPIRE RESERVES THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN ITS SOLE DISCRETION. IN THE EVENT EMPIRE 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.

  1. Buying and Selling through Empire Flippers

    1. A “User” is a person or business that wishes to buy or sell online businesses through Empire’s Services, has registered an account with Empire, and has consented to this Agreement.
    2. A “Seller” is a User that has submitted a Business for sale through Empire’s Services.
    3. A “Buyer” is a User that has Unlocked the Confidential Information about a Business.
    4. A “Business” is a reference to the Seller’s overall business function offered under one or more brand names (i.e. selling socks, shoes, and shoelaces under the brand name Feetly) and the collection of Assets related to the Business.
    5. The “Assets” include the following:
      1. All accounts associated with the Business, including all associated accounts, content, data, customer lists, databases, files, and artwork;
      2. All general intangibles of the Business, including payment intangibles;
      3. All instruments of the Business, including promissory notes, books and records, customer lists, email lists and other files related to the Business;
      4. All letters of credit and letter-of-credit rights and supporting obligations;
      5. All inventory of the Business, including raw materials, finished goods, packaging, and, inventory deposits, if any (“Inventory”);
      6. All relevant domain names and associated domain name registrations (“Domain Names”);
      7. All rights in, arising out of, or associated with any patents, patent applications, trademarks, service marks, brands, logos, trade dress and all trademark applications or registrations, copyrights and works of authorship, copyright applications or registrations, trade secrets, know-how, inventions, technical information, computer programs, data, databases, applications, code, source code, rights of publicity, and all other intellectual property or proprietary rights (“Intellectual Property”)
      8. All licenses for applications or plugins used in connection with the Business;
      9. All prepaid expenses and subscriptions associated with the Business.
      10. All goodwill and the going concern value of the Business.
  2. Requirement to Register an Account with Empire.

    1. In order to use Empire’s Services, you are required to register an account with Empire and consent to this Agreement. Users are permitted to use their account only and are expressly prohibited from providing third parties with access to a User’s account. You agree that in registering an account with Empire, you will provide Empire with accurate, complete, relevant, and current information. Users are solely responsible for maintaining the security and confidentiality of their usernames and passwords. In the event a User account is accessed without a User’s consent, Users are required to immediately provide Empire with written notice.
    2. By registering an account with Empire, you agree Empire may contact you through the details you provided, including but not limited to phone and email, however, you will be authorized to opt out of future emails.
    3. By registering an account with Empire, 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.
    4. By registering an account with Empire, Users warrant and represent they have the full power and legal authority to execute this Agreement. If a User is making this representation on behalf of a business entity or third party, the User warrants that he or she has 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.
    5. Sellers represent warrant they have full unencumbered title to the Assets and Business to be sold through Empire’s Services.
    6. Buyers represent and warrant they have sufficient funds to complete the purchase of any Assets and Business in which they make an offer to purchase.
    7. Buyer and Seller represent they are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors.
  3. Empire’s Right to Terminate Users. Empire retains the discretion to terminate this Agreement and ban Users from Empire’s Services if a User is in breach of the Agreement, Empire has grounds to believe a User is a repeat violator of this or previous Agreements, or for other grounds based on Empire’s reasonable discretion that a User will cause damage or injury to other Users or Empire.

    PROCEDURE AND RULES FOR SUBMITTING BUSINESS FOR LISTING AND THE LISTING PRICE

  4. Process to Submit a Business for Listing with Empire.

    1. The first step to listing a Business for sale is submitting information regarding the Business to Empire and paying a non-refundable listing fee (“Listing Fee”). Empire, in its sole discretion, will approve or reject the Business for listing on the Website and participation in the Services. Empire reserves the right to reject any submission for any reason or no reason at all.
    2. Users submitting a Business to Empire understand and agree that Empire will rely on the facts and representations submitted. User agrees to provide Empire with all relevant information related to the operation of the Business and Assets, including, but not limited to, any relationship with distributors, affiliates, dropshippers, or any other material information regarding the Business. This information will be truthful, accurate, current, and complete.
    3. Empire may provide Users with the ability to upload or transmit user-generated content in association with the Business or Assets, including, but not limited to, text, comments, photographs, images, videos, audio files, profile information, name, likeness, advertisements, listings, information, and designs (collectively “User-Generated Content”). Except as otherwise provided herein, Users warrant that they own all rights in and to the User-Generated Content. By submitting User-Generated Content to Empire, you grant Empire a non-exclusive, irrevocable, royalty-free, worldwide, and perpetual license to use the User-Generated Content for the customary and intended purposes of the Services. These purposes may include, but are not limited to, providing third parties with the Services and archiving or making backups of the Website. Users agree to waive all moral rights in and to the User-Generated Content across the world, whether or not Users have asserted moral rights in or to the User-Generated Content. By submitting User-Generated Content, Users further agree to waive all rights of publicity or privacy with respect to the User-Generated Content. Users warrant that any User-Generated Content submitted will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
    4. Users agree to be cooperative and provide reasonable assistance while the Business is being evaluated, including but not limited to answering inquiries from potential purchasers or Empire within seventy-two hours, and acting in a professional and courteous manner at all times.
    5. Unless you expressly disclose specific facts indicating otherwise in writing to Empire in connection with the submission of your Business, by submitting your Business to Empire, you represent and warrant that:
      1. You have clear and unencumbered title to the Assets and any related assets to be sold through Empire, including all intellectual property rights;
      2. You have not placed the Assets 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;
      3. You and the Assets are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors;
      4. The information you have provided to Empire in connection with the Assets or Business is true, accurate, current, and complete, and you have not omitted any material information regarding the performance or value of the Assets; and,
      5. To the best of Your knowledge, there is no lawsuit or pending claim or charge against the Assets.
  5. Approval of Business for Listing and the Exclusive 6-Month Listing Term.

    1. After review of your Business, Empire will recommend a listing price for the sale your Business and the Assets (“Listing Price”). The User and Empire must mutually agree on the Listing Price prior to the Business being listed for sale on Empire’s marketplace.
    2. The Business has been “Listed” once it appears on the Website. Users and Sellers expressly grant Empire an exclusive right to list, market, or advertise the Business and Assets for sale for a period of six (6) months from the date the Business and Assets were Listed (“Listing Term”). Users understand and agree they may not cancel or other terminate the Listing Term except as provided in this Agreement.
    3. Sellers warrant and agree that Empire will the sole and exclusive listing agent for the Business during the Listing Term and that the Business may only be sold by and through Empire during the Listing Term. Seller may not, directly or indirectly, list, solicit offers, or attempt to sell its Business using any other service, person, or agent for the duration of the Listing Term.
    4. During the Listing Term, Seller agrees to continue to operate and maintain the Business in the same manner in which it was operated and maintained prior to the Listing Term, including, but not limited to, taking any and all actions necessary to retain the Business value, which may include, but is not limited to, continued marketing efforts, advertising expenses, customer service, maintaining third-party links, and/or other maintaining any other traffic, revenue, distribution, or referral source, if applicable. Seller agrees not to take any actions outside of its normal business practices or that would otherwise impair or impede the transfer of the Assets or the value of the Assets throughout the Listing Term.
    5. During the Listing Term, Sellers agree to maintain accurate and up-to-date business records and to provide the same to Empire in a timely manner upon request.
    6. Empire will review and update the Listing Price approximately every month. Seller agrees to timely respond to Empire’s communications regarding updated Listing Prices. If Seller fails to respond within 72 hours of Empire’s communication, Seller is deemed to have consented to the updated Listing Price, if any.
  6. The Listing Price is an Offer to Sell and Sellers Have Accepted Offers at or Above the Listing Price; Purchase Price

    1. By agreeing to the Listing Price and having your Business Listed, Seller is expressly offering to sell the Business and Assets at or above the Listing Price.
    2. Upon Empire’s receipt of an offer at or above Listing Price, Seller is deemed to have accepted that that that offer at or above the Listing Price.
    3. Empire will communicate all below Listing Price offers to Seller. If Seller accepts the below Listing Price Offer, Seller’s acceptance is incorporated into this Agreement as if fully stated herein.
    4. The “Purchase Price” is the total consideration paid in connection with the sale of the Assets, not including inventory costs, if any.

    PROCEDURE AND RULES FOR UNLOCKING AND MAKING OFFERS TO BUY A BUSINESS

  7. Unlocking the Details Related to a Business Listed for Sale; Liquidated Damages

    1. Empire only discloses non-public information relating to a specific Business after a User has “Unlocked” that information by consenting to this Agreement and following the process to Unlock the Business as displayed on the Website, which may be amended from time to time, which generally includes a process to submit a payment to Empire (“Unlocking Key”). A User is required to specifically Unlock each Business it is interested in purchasing. Businesses that a User or Buyer has Unlocked are referred to as the Unlocked Businesses.
    2. A Buyer will be provided Confidential Information only after completing the Unlocking Key. “Confidential Information” shall mean non-public, proprietary information revealed by Empire or Seller of an applicable Business listing (whether in writing, orally or by any other means) including, but not limited to, (a) information expressly marked or disclosed as confidential, (b) all forms and types of financial, traffic, user, and/or other business information, (c) any and all details relating to the Assets, Empire, or the Seller of an applicable Business listing, including the relevant URL, the Seller’s profits and losses or balance statement, Seller’s contact information, and any other information related to the Assets or Business. This provision is intended to be broadly construed such that all non-public information obtained by a User or Buyer will be considered Confidential Information.
    3. Confidential Information will at all times be, and will at all times remain, the property of the providing party and all applicable rights, including, but not limited to, all intellectual property rights, rights of publicity, or other personal or proprietary rights embodied in the Confidential Information will remain in the providing party. Buyer agrees that it will treat all such Confidential Information as confidential and will not disclose such Confidential Information to any third party; provided, that a Buyer may disclose the Confidential Information to its Representatives (as defined below) who have a need to know such information in connection with the evaluation of the Assets. A Buyer shall use at least the same degree of care to avoid disclosure of such Confidential Information as it would use with respect to its own confidential information of like importance.
    4. A Buyer shall not use Confidential Information for any purpose other than to evaluate the Business and Assets for purchase. A Buyer will prohibit all third-parties that come into possession of the Confidential Information as a result of their access to it from using it for any purpose other than to evaluate the Business for purchase, including agents, financial advisors, employees, contractors, officers, and directors (collectively, “Representatives”). Buyer is prohibited from using the Confidential Information to circumvent Empire or its Services in any manner, including, but not limited to, by making direct offers to purchase the Business or Assets from Seller outside of Empire’s terms, process, or knowledge. Buyer is strictly prohibited from using the Confidential Information to obtain non-public information from a competitor, to form a competing business, to register domain names pertaining or related to the Assets or Business, to obtain keyword lists, user lists, or traffic numbers, or to take any other actions by which Buyer or any other party under Buyer’s ownership or control uses the Confidential Information for purposes outside of the evaluation of the Business for purchase.
    5. In the event that a Buyer is required by law to disclose any Confidential Information, the Buyer will cooperate with the providing party and, when possible pursuant to statutory or regulatory authority, provide the providing party with prompt, advance written notice so that the providing party may seek a protective order, prevent against the disclosure of Confidential Information, or waive compliance with the provisions of this Agreement.
    6. Buyers understand and agrees that Sellers agree to list Businesses for sale through Empire based on trust that Seller’s Confidential Information will not be misappropriated and that the Buyer’s actions to breach that trust will cause Empire damages the precise amount of which may be extremely difficult or impracticable to determine. Accordingly, in the event that Empire files an action to enforce the restrictions imposed by this Section, it shall be entitled to the entry of an injunction without the necessity of having to post a bond, which injunction shall remain in place pending completion of any action commenced. Notwithstanding Empire’s right to obtain an injunction, Empire will also be entitled to recover $25,000 in liquidated damages against the breaching party plus Empire’s costs and attorneys’ fees in association with the breach.
  8. Process and Procedure for Making Offers to Purchase a Business; Return of Deposit

    1. Buyer agrees that all offers to purchase Business or Assets listed on Empire’s Website or through Empire’s Services are required to be communicated in writing and through Empire such that Empire is specifically on notice and aware of any and all pending offers. Buyer and Seller understand and agree that the purpose of this provision is to avoid confusion in the sales process, including but not limited to the avoidance of a Seller agreeing to sell the Assets to multiple parties.
    2. Buyer’s offer to purchase a Business is incorporated into this Agreement as if fully stated herein. Buyer understands and agrees it is obligated to fulfill the purchase of the Business if its offer is accepted, including but not limited to the payment of the Purchase Price, completing the Migration Process, and completing all other obligations of this Agreement.
    3. If two or more Buyers offer the full Listing Price for the Business, the Buyer that first completes a wire transfer of the Purchase Price to Empire is deemed the purchaser of the Business and Assets. The wire transfer is complete when it is received and cleared by Empire’s bank or other financial institution or the bank or other financial institution of Empire’s agent.
    4. If a below Listing Price offer is made on one of the Buyer’s Unlocked Businesses, Empire will notify Buyer and provide Buyer with 24 hours to match that offer in writing.
    5. Empire does not charge Buyer any wire or transfer fees, however, certain fees and expenses may be charged by Buyer’s financial institution and are solely Buyer’s responsibility.
  9. Buyer’s Responsibility to Investigate and Perform Due Diligence. Buyer understands and agrees it is solely responsible for investigating all aspects of any purchase of Assets, including but not limited to independently reviewing financial information, market circumstances, operational issues, supplier contacts, and other factors pertaining to the overall functioning of the Business. Buyer is advised to not only rely on information provided by Empire, but to supplement that information with its own investigation, including asking the Seller specific questions regarding the Business and the information disclosed in the sales process. Buyer is encouraged to seek independent legal and tax advice. Empire makes no representation or guaranty regarding the future performance of any Asset or Business.
  10. Buy It Now Listings. Empire may present certain Listings with the ability to “Buy It Now.”

    1. A Seller that agrees to list their Business for sale through a Buy It Now option is deemed to have agreed to sell the Business and Assets for the stated Buy It Now Listing Price.
    2. A Buyer that choose to purchase a Business through a Buy It Now option must follow the on-screen prompts to complete the process, including providing payment to Empire. A Buyer completing this process is obligated to the fulfill the purchase, including but not limited to the payment of the Purchase Price, completing the Migration Process, and completing all other obligations of this Agreement.
  11. Payment of the Purchase Price; Buyer Obtains Title at the Transfer Date; Reconciliation

    1. Based on the offer made by the Buyer and accepted by the Seller, the Buyer is required to deposit the Purchase Price, or a certain amount of the Purchase Price, with Empire prior to any transfer of the Assets or Business. Title to the Assets and Business will pass to Buyer when Buyer has deposited the agreed amount of the Purchase Price with Empire after accepting the terms of this Agreement (“Transfer Date”).
    2. All revenues associated with the Business prior to the Transfer Date is the Seller’s property.
    3. All revenues associated with the Business on and after the Transfer Date is the Buyer’s property, provided a Successful Inspection Period is achieved.
    4. The Buyer and Seller understand and agree that pre-Transfer Date revenue may not be paid out by the applicable platform until Buyer is in possession of the Assets (“Seller’s Residual Revenue”). Buyer shall remit Seller’s Residual Revenue to Seller. On the other hand, post-Transfer Date revenue may be paid out or otherwise accumulated while Seller possesses the Assets (“Buyer’s Residual Revenue”). Seller shall remit Buyer’s Residual Revenue to Buyer.
  12. Sale of Assets; Limitations.

    1. In consideration of the Purchase Price and subject to the terms of this Agreement, Seller agrees to assign, transfer, convey and deliver to Buyer, and Buyer hereby purchases from Seller right, title and interest in the Assets related to the Business.
    2. This is an asset sale only. The Assets are the only assets that are the subject of this Agreement, and there are no assets that are the subject of the sale and purchase under this Agreement other than the Assets. Without limiting the foregoing, and by way of example and not limitation, this Agreement specifically excludes the following assets: (a) Seller’s cash, cash equivalents, and investments; Seller’s minute books, stock records, and company seals, and all shares of capital stock held in treasury; (c) all insurance policies and rights thereunder; (d) personnel records and other records that are required by law to be retained by Seller; and (e) other items specifically excluded in the sale as transmitted in writing and conveyed to Buyer. Buyer is not assuming, and shall not be deemed to have assumed, any liabilities or obligations of Seller of any kind or nature whatsoever (whether contractual, statutory or otherwise).
  13. Payment of Empire’s Commission.

    1. In exchange for Empire’s Services, Seller agrees to pay Empire a commission (“Commission”) of a certain percentage of the Purchase Price on the following schedule:

      15% for a Business with a Listing Price under $1,000,000;
      12% for a Business with a Listing Price between $1,000,000 and $2,000,000;
      10% for a Business with a Listing Price between $2,000,001 and $5,000,000;
      8% for a Business with a Listing Price over $5,000,000

    2. Seller agrees to pay Empire’s Commission upon any of the following events:
      1. Seller sells its Assets or Business during the Listing Term, whether using Empire’s Services or not;
      2. During the Listing Term, Empire presents a ready, willing, and able buyer for the sale of the Assets or Business;
      3. During the Listing Term, Seller fails to consummate the sale of Assets or Business after agreeing to sell the same;
      4. Seller breaches a term of this Agreement that impairs Empire’s ability to market, advertise, or sell the Assets; or
      5. For a period of one (1) year after expiration of the Listing Term, Seller sells, transfers, or otherwise assigns the Assets or Business to a person or entity that was introduced to Seller or became aware of Seller’s Assets or Business through Empire’s Services.

        For the purposes of determining the Commission owed to Empire, the Listing Price will be the highest Listing Price in place upon the occurrence of any of the events listed in subparts (i)-(v) above.

    3. Buyer is not separately responsible for paying Empire’s Commission in the event the purchase of Assets is consummated. However, Buyer agrees to pay Empire’s Commission if Buyer, after reaching an agreement for the purchase of the Assets, fails to consummate the transaction or otherwise breaches this Agreement.
  14. Migration Process.

    1. After the Transfer Date, the process to move the Assets to the Buyer will begin (“Migration Process”). Users understand and agree that the Migration Process typically takes 2 to 8 weeks to complete, but could take substantially longer. Users acknowledge and agree that Empire cannot guarantee a specific timeframe to complete the Migration Process.
    2. During the Migration Process, the Buyer and Seller shall timely communicate with each other and Empire to facilitate the transfer of the Assets into Buyer’s possession and to operate the Business in the same manner in which was operated prior to the Listing.
    3. During the Migration Process, the Buyer shall not make any material changes to the Business, including but not limited to increasing expenses, without Seller’s prior written consent. Breach of this provision causes Buyer to automatically waive the Inspection Period.
    4. The Migration Process is complete when the Buyer or Empire, in its sole discretion and in good faith, determines that a sufficient portion of the Assets have been transferred to Buyer such that Buyer can fairly assess the associated revenue during the Inspection Period (“Completed Migration”). It is possible that some portion of the Assets will continue to be transferred to Buyer after the Completed Migration.
    5. Empire may cancel any Migration Process if either the Seller or Buyer has breached a term of this Agreement. If Empire determines that such a cancellation is required, Empire will cancel the sale, the Assets will be returned to Seller, and the Purchase Price will be returned to Buyer. Upon this termination, Seller shall be entitled to all revenue associated with the Business, including revenue after the Transfer Date. The Parties agree to cooperate to complete these actions.
    6. A User’s failure to complete the Migration Process is a material breach of the Agreement.
    7. User agrees to provide Empire all necessary information upon request to facilitate the Migration Process.
    8. If the Buyer’s purchase includes any type of delayed payment of the Purchase Price, including but not limited to any type of “earn out” payment, then Empire shall retain possession of any relevant Domain Name until the full Purchase Price is timely paid. During this time, Empire grants Buyer a royalty free license to use the Domain Name and Buyer agrees to indemnify and hold harmless Empire from any and all use of the Domain Name. Upon Buyer’s timely payment of the Purchase Price, Empire shall transfer the Domain Name to Buyer. Upon termination of this Agreement or Default, Empire shall transfer the Domain Name to Seller.
  15. Inspection Period.

    1. Buyer shall have a period of fourteen (14) days from the Completed Migration to inspect the operation of the Assets (“Inspection Period”) upon the terms and conditions stated below.
    2. During the Inspection Period, Buyer shall operate the Assets in a manner as close as possible to Seller’s operation and shall not make any material changes, including addition of new expenses, without Seller’s prior written consent. Breach of this provision causes Buyer to automatically waive the Inspection Period.
    3. Buyer may request termination of this Agreement if, consistent with this Agreement, the Buyer believes a Substantial Deviation exists.
    4. A “Substantial Deviation” exists when the Inspection Period Revenue is less than fifty percent (50%) of the prorated Average Monthly Revenue. If the Inspection Period Revenue is fifty percent (50%) or more of the prorated Average Monthly Revenue, Buyer shall have no right to request to terminate this Agreement.
    5. “Inspection Period Revenue” is defined as the Assets’ revenue during the Inspection Period.
    6. “Average Monthly Revenue” is defined as the most current information regarding the Assets’ average monthly revenue made available on Empire’s Website.
    7. A “Successful Inspection Period” is an Inspection Period in which there is no Substantial Deviation.
    8. To request termination of this Agreement based on a Substantial Deviation, Buyer must, within two (2) days of the expiration of the Inspection Period: 1) notify Empire in writing of the request to terminate this Agreement within the Inspection Period at support@empireflippers.com or the Zendesk ticket already being used; and 2) provide evidence of the Substantial Deviation and Inspection Period Revenue through verifiable screenshots and/or by providing Empire access to the Assets’ raw financial data in a form acceptable to Empire.
    9. If Buyer requests termination of this Agreement consistent with the provisions above, Empire will investigate the matter. The Seller and Buyer agree and understand this investigation could take 2 to 8 weeks to complete or longer depending on the circumstances (“Investigation Period”). Empire may require additional information from the Buyer or Seller to conduct its investigation and the Buyer and Seller agree to comply with such requests. Empire retains the sole and absolute discretion to determine the presence or absence of a Substantial Deviation.
    10. If Empire confirms the presence of a Substantial Deviation, Empire will cancel the sale, the Assets will be returned to Seller, and the Purchase Price will be returned to Buyer. Upon this termination, Seller shall be entitled to all revenue associated with the Business, including revenue after the Transfer Date. The Buyer and Seller agree to cooperate to complete these actions.
    11. If Empire confirms the absence of a Substantial Deviation, the sale will continue and the Inspection Period will be deemed to have expired.
    12. If Buyer fails to provide timely written notification of its request to terminate this Agreement, Buyer is deemed to have freely and voluntarily waived any and all contingencies in connection with the purchase of the Assets, including any discrepancies, fluctuations, or changes in the performance of the Assets 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 Assets during the Migration Process and/or during the Inspection Period.
    13. Buyer may waive the Inspection Period by notifying Empire of its intent to waive the Inspection Period and authorization to release the Purchase Price to Seller in writing.
  16. Release of the Purchase Price to Seller.

    1. Provided Seller has complied with this Agreement, including the Verification Process below, within a reasonable time after a Successful Inspection Period, Empire will release the Purchase Price or the applicable portion of the Purchase Price paid to Empire by Buyer, less Empire’s Commission, to Seller.
    2. Seller is required to present verifiable photo identification through pictures and/or videos direct to Empire, intended to confirm Seller’s identity. This identification must be government issued, including but not limited to a driver’s license or passport. This identification is subject to Empire’s review in their sole and absolute discretion. Empire reserves the right to withhold payment of the Purchase Price to any Seller that fails to adhere to this provision, determined in Empire’s sole discretion.
    3. Seller shall complete the Verification Process and respond to all questions pertaining to the release of the Purchase Price within 5 days of the expiration of the Inspection Period.
  17. Buyer Default.

    1. The following shall be deemed an event of Buyer’s Default: 1) Buyer fails to timely complete any required payments in connection with the purchase, including but not limited to payment of the Purchase Price, or any portion thereof, or any required payment for Inventory; 2) if prior to completing the payment of the Purchase Price, Buyer or another person shall file a petition for relief for Buyer under the bankruptcy laws, or shall make an assignment for the benefit of creditors for Buyer, or if a receiver of any property of the Buyer be appointed in any action, suit or proceeding by or against Buyer, or if Buyer shall admit in writing to any creditor or to Buyer that it is insolvent, or if the interest of Buyer in the Assets shall be sold under execution or other legal process.
    2. Upon the occurrence of an event of Buyer’s Default, Seller shall have the right to terminate the Agreement and shall be entitled to full possession of the Assets. Seller may make its election to terminate known to Buyer by delivery of a notice of termination to Buyer and a notice to Empire to transfer any of the Assets to Seller, if Empire is in possession of any Assets. Such termination shall be immediately effective and Seller shall be entitled to forthwith commence an action in summary proceedings to recover possession of the Assets. Buyer agrees to fully comply and cooperate to transfer the Assets to Seller. Further, the Buyer and Seller agree Empire is not liable in any manner whatsoever for its transfer of any Assets to Seller consistent with this Agreement. Empire has no obligation to refund any portion of its Commission upon a Default.
    3. Anything contained in this Agreement to the contrary notwithstanding, on the occurrence of an event of default, the Seller or Empire shall not exercise any right or remedy under any provision of this Agreement or applicable law unless and until: (a) the Seller or Empire has given written notice thereof to the Buyer, and (b) the Buyer has failed to cure the event of default within fifteen (15) days.
  18. Remedies for Material Breach. The Buyer, Seller, and Empire 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 Empire, 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 for breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
  19. Assumption of Risk. The Buyer and Seller agree that, prior to the Transfer Date, Seller assumes all risks of destruction, loss, or damage to the Assets or the risk of any casualty, including any liability arising out of ownership of the Assets, excluding any of the foregoing caused by Buyer’s negligence. Buyer assumes all risk on and after the Transfer Date.
  20. Non-Compete Agreement. Seller will not directly or indirectly:

    1. engage in or in any manner become interested in, directly or indirectly, as an owner, partner, joint venturer, investor, shareholder, member, or otherwise, in any business, trade, or operation that competes with the Business for a period of three (3) years of the Transfer Date, anywhere in the world, except that Seller may invest in a publicly owned company, provided the investment does not constitute more than one percent (1%) of the voting securities of any public company; or
    2. For a period of three (3) years, accept employment with or render services to a third party in a competing business as a director, officer, agent, employee, or consultant (with or without compensation).
  21. Indemnification.

    1. Buyer agrees to indemnify Seller from all liabilities arising out of Buyer’s operation of the Assets on and after the Transfer Date.
    2. Seller agrees to indemnify Buyer from all liabilities arising out of Seller’s operation of the Assets prior to the Transfer Date.
  22. Indemnification of Empire. All Users agree to hold harmless, defend, and indemnify Empire 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 Empire’s Services; (3) the review and listing of any Assets or Business for sale; (4) the transfer and migration of the Assets, including, but not limited to, access to accounts associated with the transfer and migration of the Assets; (5) the violation of any term or condition of this Agreement; (6) the violation of the rights of third parties, including rights of privacy or publicity or intellectual property rights; and (7) the violation of any law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international. The obligation to defend and indemnify Empire will not provide you with the ability or right to control Empire’s defense, and Empire reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel.
  23. Limitation of Liability.

    EXCEPT FOR EMPIRE’S OBLIGATION TO RELEASE THE PURCHASE PRICE OR ITS GROSS NEGLIGENCE, USERS 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 EMPIRE 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 EMPIRE’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR SERVICES OR $1,000, WHICHEVER IS LESS.

  24. Broker Disclaimer. All sales are final and there are no refunds. Earnings and traffic may decline due to Google, Amazon, or other updates or rule changes, increased competition, account suspension or termination, mismanagement by the Buyer, and other factors. The Buyer and Seller agree that Empire makes no guarantees or warranties, written or implied, of the future performance of the Assets. Buyer specifically agrees and acknowledges that it assumes all risk in any purchase.
  25. General Provisions.

    1. Opportunity to Retain Counsel and Enter Into Custom Agreement. Buyer and Seller understand and agree that they have the option to retain legal counsel and draft and negotiate their own agreement to consummate the sale of the Business.
    2. Fair Market Value. The Buyer and Seller each acknowledge the Purchase Price represents fair market value.
    3. Costs. All Users agree to pay their own costs and expenses incurred with respect to this Agreement.
    4. 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 User’s respective heirs, legal representatives, successors, and assigns.
    5. Confidentiality. The Buyer and Seller agree to maintain complete confidentiality regarding this Agreement as it pertains to the purchase of a Business.
    6. Waivers. A waiver by either Buyer or Seller to any provision of this Agreement does not constitute a waiver of any other provision of this Agreement.
    7. 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. However, the provisions regarding Confidential Information and Buyer’s obligations are intended to benefit Seller.
    8. 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.
    9. Choice of Laws and Venue. User agrees that any and all claims or disputes that may be brought by or against Empire arising out of or related to this Agreement, including any claims or disputes involving its validity, interpretation, breach, violation, or termination, or any claims or disputes in which Empire has an interest in the resolution of the claim or dispute, shall be exclusively brought in the state or federal courts located in Kalamazoo County, Michigan and will be interpreted and enforced pursuant to Michigan law without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any other jurisdiction other than the State of Michigan. User expressly consents to the exclusive personal jurisdiction of such courts and expressly waives any jurisdictional or venue defenses otherwise available. The prevailing party is entitled to payment of its costs, expenses, and attorney fees by the non-prevailing party for any actions, disputes, or litigation arising out of or related to this Agreement. This Agreement is deemed to have been negotiated, executed, and performed exclusively within Kalamazoo County, Michigan. YOU UNDERSTAND AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT BROUGHT AGAINST EMPIRE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE DISPUTE AROSE.
    10. Entire Agreement. Except as otherwise provided, this Agreement is the entire agreement between the User and Empire as to the subject matter stated herein.
    11. 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.
    12. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (1) acts of God; (2) flood, fire, earthquake, or explosion; (3) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (4) government order or law; (5) actions, embargoes, or blockades in effect on or after the date of this Agreement; (6) action by any governmental authority; and (7) national or regional emergency; and (8) strikes, labor stoppages or slowdowns, or other industrial disturbances. The party suffering a Force Majeure event shall give prompt notice to the other party, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure event are minimized.
    13. Amendments. This Agreement may be amended in writing by the relevant parties.