Parties; Purpose of Agreement
1.1. Parties. The parties to this agreement are Downtown Magazine Inc., Rick Gagliano, Chairman, CEO, (Broker), a corporation doing business in the state of Tennessee, USA, and _________________________________________________ (Owner).
1.2. Purpose. Broker will offer certain items owned by Owner for sale on eBay. Broker will answer bidders' and prospective buyers' inquiries, accept payments from buyers and remit them to Owner, and package and ship purchased items.
Preparation and Listing
2.1. Possession. Owner will allow Broker to take possession of each item and to remove it to a location under Broker's control. Broker will have no obligation to sell or prepare to sell items which have not been so removed.
2.2. Exclusive right to sell. Broker will have the exclusive right to sell each item from the time he takes possession of it until he returns it to Owner unsold or notifies Owner of his intention to do so. During that time Broker will use his best efforts to sell the item.
2.3. Right to decline items. Broker may decline to list any item:
2.3.1.—that does not conform to this agreement's description of items to be sold, if one is provided.
2.3.2.—whose sale is regulated or prohibited by federal law or by state law in any state.
2.3.3.—that cannot be listed on eBay, Amazon, or other sales platform.
2.3.4.—that is perishable.
2.3.5.—that cannot be shipped by UPS, USPS, FedEx Ground or standard freight services, or cannot be shipped safely by one of those methods due to its delicate nature.
2.4. Listing. Broker will prepare an item description for each item and list it for sale on dtmagazine.com within 30 days of taking possession. For multiple, identical items to be sold individually or in lots, Broker will prepare an item description for each type of item and begin listing reasonable quantities of the item within 30 days.
2.5. Return of unsold items. Broker will return any unsold item to Owner within 60 days if a sale has not been made. If Broker declines to list any item after taking possession of it, he will return it to Owner within 30 days of discovering cause for declining it.
2.6. Independent judgment. Subject to the terms of this agreement, Broker will use his independent judgment in writing item descriptions, preparing photographs, setting minimum bids or fixed prices and other terms of sale, and choosing the opening time and duration for each listing.
2.7. Risk of loss. Broker will compensate Owner for any items which are lost, stolen, or damaged while in his possession to the extent that Owner's insurance does not do so.
Receipts; Expenses; Payments
3.1. Net receipts. “Net receipts” is defined as receipts from buyers for items sold. It does not include:
3.1.1. Any sales and/or use tax. Broker will collect, report, and pay this tax on taxable items sold where applicable.
3.1.2. Any other taxes which Broker collects according to the terms of this agreement. Broker will remit such taxes to Owner with payments for items sold. Owner shall be solely responsible for reporting and paying such taxes.
3.1.3. Packaging and shipping charges. Broker may require buyers to pay reasonable charges to cover the costs of packaging and shipping items sold.
3.2. Payments to Owner: amount. Broker will pay to Owner an amount equal to net receipts minus:
3.2.1. Broker's commission, which shall be 35% of the first $50 of net receipts, plus 25% of the next $450, plus 20% of the balance. The commission will be computed separately for each item sold, with the following exception: the commission will be computed on total receipts for multiple items purchased by one buyer in a single transaction from a single fixed-price listing.
3.2.2. Any fees accrued to items listed for sale under this agreement, whether or not sold.
3.2.3. Transaction fees or other charges paid to PayPal, a bank, or another financial service provider for processing buyers' payments.
3.2.4. Any other selling expenses which this agreement expressly identifies as reimbursable.
3.3. Payments to Owner: time. At the end of each calendar month Broker will pay Owner for items sold under this agreement for which Broker received payment by check at least 20 days before the end of the month or received payment by money order, cashier's check, cash, or electronic funds transfer at least 10 days before the end of the month.
3.4. Non-paying buyer. If a buyer fails to fulfill the terms of the sale agreement, Broker may elect to declare the item unsold, relist the item, or sell the item to another bidder or buyer for the amount of that bidder or buyer's high bid.
Other General Provisions
4.1. Term of agreement. This agreement shall remain in effect until all of the items it covers have been sold or returned unsold to Owner. If this agreement does not describe a fixed set of items to be sold, it shall remain in effect indefinitely. Either party may cancel this agreement on 20 days' written notice; but if Owner cancels the agreement except for cause, the agreement will remain in effect with respect to any items in Broker's possession when notice is given.
4.2. Owner entitled to sell. Owner owns all items to be sold under this agreement, and is entitled to sell them in the manner described here. Owner will indemnify, defend and hold Broker harmless against any liability based on a claim that Owner is not so entitled.
4.3. Inaccurate information provided by Owner. The parties recognize that Broker will make statements to prospective buyers in reliance on information provided by Owner, and that Broker's reputation in the online community depends on his readiness to resolve buyers' claims promptly and fairly. If a buyer claims to have suffered a loss due to reliance on inaccurate information provided by Owner, Broker will notify Owner promptly, and will give Owner a reasonable opportunity to participate in resolving the claim. Broker will, however, determine whether and how to satisfy the claim according to his own independent judgment. Owner will reimburse Broker for the costs of satisfying the claim, provided that the claim was reasonable and that the manner and cost of satisfying the claim were reasonable.
4.4. Arbitration. Any dispute between the parties concerning this agreement will be settled under the commercial rules of the American Arbitration Association by mediation, and if not resolved, by arbitration of the last offered mediation positions.
4.5. Governing law. This agreement will be interpreted according to the laws of the state of Tennessee.
4.6. Severability. If any provision of this agreement is held to be invalid or unenforceable, the remaining provisions of the agreement will continue in force.
4.7. Entire agreement. This agreement constitutes the entire agreement between the parties, and may be changed only by a written amendment signed by both parties.
Specific Provisions
5.1. Other sections preempted. In case of conflict, terms in this section preempt terms in other sections of this agreement.
5.2. Items to be sold. (This paragraph will describe the items which Broker undertakes to sell, Owner's representation of their condition, and the terms of any warranty which Owner will provide to buyers.)
5.3. Listing and sale.
5.3.1. Broker may list any items as often as practical at any location, at his discretion.
5.3.2. Broker will not use any extra-fee listing options, such as boldface listings, reserve prices, or ten-day auctions, without Owner's express consent.
(Add any other special provisions for preparation, listing, sale, and shipping.)