Seller Listing Agreement

This SELLER LISTING AGREEMENT (“Listing Agreement”) between you (“Listing Party”) and ProShop LLC, a Texas limited liability company (“Proshop”), along with Proshop’s Website Terms of Use, Prohibited Items Guidelines and Website Privacy Policy (collectively, the “Proshop Policies”), apply to the listing and sale of certain products and/or services through the Proshop online marketplace (https://proshoplive.com) (the “Online Marketplace”).

Services of Proshop:
1. Proshop hereby agrees to list and advertise the products and services shared by Listing Party (collectively, the “Goods”) on Proshop’s Online Marketplace.
2. The parties agree that the Listing Party and any party that buys such Goods (a “Buyer”) are both acting on their own behalf, and Proshop does not represent or act as an agent for either party in the transactions that result from use of the Online Marketplace.
3. In consideration of the use of the Online Marketplace for the listing and advertising of Goods and for Proshop’s facilitation of the sale transactions as described herein, the Listing Party agrees that Proshop may add to the Listing Party’s agreed-upon sale price for such Goods, and the price advertised on the Online Marketplace for such Goods (if any), and collect from Buyer, upon Buyer’s and the Listing Party’s mutual agreement to buy and sell such Goods, those commissions and fees listed in Section 5 (“Commissions”).
4. The parties expressly acknowledge that in order to facilitate such sale transaction, following such mutual agreement, Proshop will, subject to the terms of this Listing Agreement, take title to the Goods from Listing Party and will then immediately transfer title to the Goods to Buyer, provided however that Proshop will never take possession of the Goods. Unless otherwise agreed, the listing of the Goods on the Online Marketplace will not identify the Listing Party by name nor will it set forth the Listing Party’s contact information; however, Listing Party agrees that Proshop may provide such information upon inquiry.
Listed Good:
Upon the Listing Party’s listing or addition of Goods, the Listing Party will indicate the minimum price acceptable to the Listing Party for the purchase of the Goods (the “Minimum Price”). The price listed on the Online Marketplace for such Goods will be the Minimum Price, plus Commissions. In the event that the Listing Party does not provide sufficient information for Proshop to accurately describe the Goods in the listing on the Online Marketplace as determined in Proshop’s sole discretion, Proshop will request additional information from the Listing Party.
Contracts for Sale:
1. Bid Process and Contracts for Sale:
  This language was configured for a marketplace whereby purchasers were contacted by phone, which is different from what Proshop will be doing, but please confirm if the general mechanics are the same and we will tweak it for Proshop.
  1. After the Goods are listed on the Online Marketplace, potential Buyers will be able to inquire about such Goods through the Online Marketplace by clicking on “Make an Offer” on the applicable Listing. Once a potential Buyer does so, a representative from Proshop will contact such potential Buyer to discuss terms of an offer.
  2. In the event a potential Buyer requests to appraise, test and inspect the Goods (an “Inspection”) prior to making an offer for purchase of the Goods, Proshop shall inform the Listing Party of such potential Buyer’s request to perform an Inspection. The Listing Party agrees to permit such potential Buyer to promptly perform such Inspection at a time and place mutually agreed between Listing Party and such potential Buyer. The Listing Party acknowledges and agrees that Proshop shall not be responsible for any costs associated with any Inspection of the Goods at any time. The Listing Party will provide a copy of such Inspection reports to Proshop as soon as practicable after the Listing Party receives such reports.
  3. In the event such a potential Buyer does not request an Inspection of the Goods prior to making any offer or if a potential Buyer decides to proceed with making an offer after the Inspection, such potential Buyer will determine the terms of the offer. Then, Proshop will create two (2) conditional contracts for sale, with the first being by and between Proshop and such potential Buyer (the “Buyer’s Contract for Sale”) and the second being by and between Proshop and the Listing Party (the “Listing Party’s Contract for Sale”).
  4. Buyer’s Contract for Sale will identify the Goods and set forth the price that the Buyer has agreed to pay to Proshop for the Goods (the “Base Price”) and the Commission (collectively, the “Buyer’s Purchase Price”), which price is exclusive of any additional costs arising from the sale of the Goods to such potential Buyer, including applicable taxes, duties, value-added tax, and any fees associated with title transfer or lien release (collectively, “Buyer’s Additional Costs”) (all of which shall be, for the avoidance of doubt, the responsibility of such potential Buyer). Buyer’s Contract for Sale will be conditioned upon (i) acceptance of the Buyer’s Contract for Sale by Proshop, in its sole discretion; (ii) Buyer’s approval of or waiver of Inspection; and (iii) payment of Buyer’s Purchase Price, plus Buyer’s Additional Costs, if any, to Proshop.
  5. The Listing Party’s Contract for Sale will identify the Goods, list all liens and encumbrances to be paid off at the closing of the sale, confirm that no additional liens or encumbrances burden the Goods, and set forth the Base Price, which is the amount that the Listing Party agreed to accept for the sale of the Goods to Proshop (and which, for the avoidance of doubt, may be more or less than the Minimum Price). The Listing Party shall be responsible for all additional costs arising from the sale of the Goods to Proshop, if any, including any applicable fees, charges, taxes, duties, and value-added tax. If Proshop pays any such amounts, the Listing Party shall promptly reimburse Proshop such amounts upon written request. If available, Proshop will provide the Listing Party with documentation regarding Proshop’s sales tax exempt status. The Listing Party’s Contract for Sale will be conditioned upon (i) acceptance of the Buyer’s Contract for Sale by Proshop; (ii) payment of Buyer’s Purchase Price, plus Buyer’s Additional Costs, if any, to Proshop; and (iii) payment by Proshop to the Listing Party of the Base Price, less any amounts due and payable to lienholders in order to remove all liens and encumbrances on the Goods.
  6. Once Buyer executes and returns Buyer’s Contract for Sale to Proshop, the Listing Party’s Contract for Sale will be presented to the Listing Party, and the Listing Party will have a period of three (3) business days to either (a) accept and execute the Listing Party’s Contract for Sale; (b) reject and counter the terms set forth in Listing Party’s Contract for Sale (“Counter Offer“); or (c) reject the Listing Party’s Contract for Sale. In the event that the Listing Party fails to timely respond in accordance with the preceding sentence, such failure will be deemed to be a rejection and Proshop may advise the potential Buyer accordingly.
  7. If the Listing Party proposes a Counter Offer, Proshop will promptly inform the potential Buyer that a Counter Offer is being proposed, and will create and send to the Listing Party a modified Listing Party’s Contract for Sale, reflecting the terms of the Listing Party’s Counter Offer. Once the Listing Party executes and returns the modified Listing Party’s Contract for Sale to Proshop, Proshop will present the potential Buyer with a modified Buyer’s Contract for Sale, reflecting such revised terms, and Proshop will have five (5) business days to (depending on the potential Buyer’s response to the modified Buyer’s Contract for Sale) (a) accept and execute the modified Listing Party’s Contract for Sale; (b) make a response Counter Offer; or (c) reject the modified Listing Party’s Contract for Sale.
  8. If, following the events described in Section 3(a)(vii) above, Proshop proposes a response Counter Offer, Proshop will promptly inform the Listing Party that a response Counter Offer is being proposed, and upon receipt of an executed Buyer’s Contract for Sale reflecting the terms of the response Counter Offer, will create and send to the Listing Agent a modified Listing Party’s Contract for Sale, reflecting the terms of the response Counter Offer. Listing Party will have three (3) business days to evaluate and respond to the modified Listing Party’s Contract for Sale, in the same manner and subject to the same restrictions as apply in Section 4(a)(vi) above. The process described in Sections 4(a) (vii) and (viii) above will continue until an agreement is reached between Listing Party and Proshop, and such proposed Buyer and Proshop, or until one party accepts a Counter Offer, or rejects a Counter Offer without making a response Counter Offer.
  9. In the event that while the process described in Sections 3(a)(vii) and (viii) above is ongoing, an additional potential Buyer makes an inquiry regarding purchase of the Goods (a “Competing Inquiry”), Proshop shall not be required to (and shall not) inform the Listing Party of such Competing Inquiry unless (a) no executed Listing Party’s Contract for Sale is operative at the time such Competing Inquiry is received, and (b) the price mentioned in the Competing Inquiry (the “Competing Price”) is higher than the most recent Buyer’s Purchase Price. If Proshop presents the Listing Party with a Listing Party’s Contract for Sale outlining the terms of the Competing Inquiry (the “Competing Contract for Sale”), the Listing Party will have three (3) business days to evaluate and respond to the Competing Contract for Sale, in the same manner and subject to the same restrictions as apply in Section 3(a)(vi).
  10. Once the Buyer has executed the Buyer’s Contract for Sale and the Listing Party has executed Listing Party’s Contract for Sale, Proshop will execute both instruments and send fully executed copies to the Buyer and the Listing Party, respectively.
2. Inspection: If following execution of the Buyer’s Contract for Sale and the Listing Party’s Contract for Sale, an Inspection has not already been completed by Buyer, and Buyer desires to conduct such an Inspection, the Listing Party agrees to permit Buyer to perform an Inspection at a time and place mutually agreed between the Listing Party and Buyer. Buyer will have a set period of time to request Inspection of the Goods in writing to Proshop, and after the Inspection, Buyer shall notify Proshop in writing that Buyer either (i) will not proceed with the transaction or (ii) unconditionally approves of the Goods and is ready to proceed with the transaction.
3. Invoice: After full execution and delivery by Proshop of the Listing Party’s Contract for Sale and Buyer’s Contract for Sale, and the conduct or waiver of an Inspection, Proshop will prepare (i) an invoice for the Buyer, which will set forth the Base Price, commission payable to Proshop and any Buyer’s Additional Costs, and (ii) a flow of funds statement for the Listing Party, which will list the Base Price, less any amounts due and payable to lienholders in order to remove all liens and encumbrances on the Goods.
4. Payment: Following full execution and delivery by Proshop of the Listing Party’s Contract for Sale and Buyer’s Contract for Sale, completion of the Inspection (if requested) to Buyer’s satisfaction, and Proshop’s delivery of the documents described in Section 3(c) above, Proshop will notify Buyer to wire funds to Proshop. Upon Buyer making such payment to Proshop, a binding obligation for the Listing Party to sell the Goods to Proshop and for Buyer to buy the Goods from Proshop will be created (the “Binding Obligations”). Upon Proshop’s receipt of such funds, Proshop will disburse funds to any lienholders and then pay the remaining funds to the Listing Party in accordance with the flow of funds statement. The Listing Party expressly acknowledges and agrees that no monies shall be payable by Proshop to the Listing Party until Proshop is paid by the Buyer. THE LISTING PARTY ACKNOWLEDGES THAT BUYER MAY FAIL TO PERFORM OR PAY ON A TIMELY BASIS AND THAT PROSHOP SHALL NOT HAVE ANY LIABILITY TO LISTING PARTY FOR ANY SUCH FAILURE, OR FOR THE FAILURE OF THE TRANSACTIONS CONTEMPLATED HEREIN TO BE CONSUMMATED. FURTHER, PROSHOP MAKES NO GUARANTEE AS TO THE AMOUNT OF GROSS PROCEEDS THAT MAY BE REALIZED FROM A LISTING OF GOODS ON THE ONLINE MARKETPLACE.
5. Transportation and Delivery: Upon payment by Buyer to Proshop and subsequent payment by Proshop to the Listing Party, Proshop will notify the Listing Party and Buyer that the transaction is complete and the Goods are available for pick-up or transport. The Listing Party agrees to have the Goods available for transport to or pick-up by Buyer no later than one (1) business day after receipt of funds from Proshop. The responsibility of arranging transportation, and all costs related to transportation and delivery shall be as agreed between Buyer and the Listing Party. THE LISTING PARTY SHALL INDEMNIFY, DEFEND AND HOLD PROSHOP HARMLESS FROM AND AGAINST ANY LIABILITY, DAMAGES, COSTS, EXPENSES OR CLAIMS ARISING OUT OF OR RELATING TO THE TRANSPORTATION OF THE GOODS, INCLUSING LOSS OF OR DAMAGE TO GOODS OCCURING WHILE IN TRANSIT. PROSHOP ASSUMES NO RISK OF LOSS WITH RESPECT TO SUCH GOODS. THE LISTING PARTY ACKNOWLEDGES AND AGREES THAT PROSHOP SHALL NOT BE RESPONSIBLE FOR INSURING THE GOODS AT ANY TIME.
Commissions:
The Listing Party agrees and acknowledges that, upon the closing of a sale of Goods, Proshop will charge Listing Party a Commission fee of 5% per transaction based on the final Base Price per Goods sold.
Goods:
The Listing Party agrees that it will not use the Online Marketplace for any illegal or fraudulent purpose, nor list or propose to list on the Online Marketplace any Goods that are illegal to use, sell, market, advertise, or possess under any applicable law, rule or regulation, nor list or propose to list on the Online Marketplace any Goods to which the Listing Party does not have title. Proshop reserves the right, in its sole discretion, to (a) refuse to list or purchase any Goods at any time; (b) withdraw any listing from the Online Marketplace; (c) review and verify a listing’s information and description; or (d) cancel any transaction that it deems to be suspicious or fraudulent and/or report it to applicable authorities.
Representations and Warranties; Covenants:
The Listing Party represents, warrants and covenants that: (a) any listed Goods will be free and clear of any and all liens, security interests or other encumbrances, (b) the Listing Party is solvent and has not made, nor is it aware of, any assignment, proposal or other proceeding for the benefit of its creditors; (c) the description of the Goods set forth on the Online Marketplace will be complete, accurate and not misleading; (d) the offering for sale, advertising or selling of the Goods will not contravene or infringe upon any patent, copyright, trademark, agreement or similar right of any third party; (e) the Goods have not been modified or tampered with in any manner that would be contrary to applicable legislation or misleading to a potential buyer, including, but not limited to, tampering with emission control devices; and (f) the Goods have not been fraudulently obtained, are not stolen or counterfeit; and. THE LISTING PARTY SHALL INDEMNIFY, DEFEND AND HOLD PROSHOP HARMLESS FROM AND AGAINST ANY LIABILITY, DAMAGES, COSTS, EXPENSES OR CLAIMS ARISING OUT OF OR RELATING TO THE BREACH OF ANY OF THE FOREGOING REPRESENTATIONS, WARRANTIES AND/OR COVENANTS.
Default:
1. Listing Party’s Default: The following shall constitute default of this Listing Agreement by the Listing Party (a “Listing Party Default”): (i) the Listing Party’s failure to cooperate with Proshop or Buyer for the Inspection, (ii) the Listing Party’s failure to sell the Goods to Proshop when contractually obligated to do so, (iii) the Listing Party’s failure to timely deliver the Goods or any part thereof or any documents required hereunder, (iv) the Listing Party’s representations and warranties set out in this Listing Agreement are not true, complete and correct in all respects, or (v) Listing Party breaches any provision of this Listing Agreement.
2. Remedy for Default: The Listing Party acknowledges and agrees that in the event of a Listing Party Default, (i) the damages to Proshop’s business reputation, brand and customers are significant and irreparable, and monetary damages will not constitute a sufficient remedy, and (ii) an adequate remedy at law for such breach is inadequate. Therefore, in such event, Proshop may seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security, and the Listing Party waives all rights to object to such an application.
Term and Termination: Proshop shall have the right, in its sole discretion, to terminate this Agreement in whole or in part, in the event (a) of a Listing Party Default, (b) the Listing Party has provided inaccurate, fraudulent, outdated or incomplete information during the registration or listing process or thereafter, or has otherwise breached this Listing Agreement amd/or the Proshop Policies, (c) Listing Party has violated applicable laws, regulations or third party rights, or (d) it determines that termination is required for fraud prevention, risk assessment, security or investigation purposes. In the event of such termination, in addition to any other remedies available to Proshop, Listing Party shall pay Proshop any costs incurred by Proshop as a result of such termination.
Indemnity: The Listing Party agrees to defend, indemnify and hold Proshop and its officers, members, managers, employees and agents, harmless against any and all claims, demands, suits, actions, causes of action, damages, settlements, liabilities, costs or charges whatsoever (including reasonable attorney’s fees) arising from: (a) any breach of this Listing Agreement by the Listing Party; (b) liens or other encumbrances against or defects in title to, or taxes or customs duties payable in respect of, the Goods or any part thereof; (c) payments by Proshop on account of any registered or unregistered charges, liens, or other interests claimed by creditors or any person or authority in respect of the Goods, whether or not disclosed, in order to clear title to the Goods; (d) improper use of the Online Marketplace; (e) any tax, cost or expense arising from failure to satisfy any laws or regulations in relation to a transaction; (f) the transportation, pick-up or delivery of the Goods, or (g) any negligence, unlawful act, or willful misconduct by the Listing Party or its agents in connection with a Listing or this Listing Agreement.
Trademarks: In connection with the Listing Party’s use of the Online Marketplace, Proshop may use the Listing Party’s name, trademark, logos, service marks and other designations (“Marks“) to list the Listing Party as a reference customer and to advertise, promote and market the Goods. The Listing Party hereby grants to Proshop, and represents and warrants that the Listing Party has a right to grant, a non-exclusive, worldwide license to use, publicly display and perform, reproduce, and distribute the Marks, solely as permitted in this Listing Agreement, including distributing e-mails to potential buyers that incorporate Marks.
Other Terms and Conditions:
1. Registration: The Listing Party agrees that prior to listing any Goods on the Online Marketplace, the Listing Party must register and create a profile on the Proshop website (https://proshoplive.com).
2. Intellectual Property: The Listing Party agrees that Proshop owns all right, title and interest in and to all data that is generated by or transmitted via the Online Marketplace, including, without limitation, data that is generated in connection with a Listing.
3. Force Majeure: Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Listing Agreement if such delay is caused by a storm, fire, earthquake, flood, war, terrorist acts or threats, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to resume performance as soon as reasonably practicable.
4. General: This Listing Agreement and the Proshop Policies contain the entire agreement of the parties relating to the subject matter set forth herein, and supersedes all previous communications, representations, understandings and agreements, either oral or written, relating to such subject matter. If any provision of this Listing Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be struck out and the remaining provisions shall continue in full force and effect. The failure by either party to exercise or enforce any rights or provisions of this Listing Agreement shall not constitute a waiver of such right or provision. No partnership, joint venture, or agency relationship is intended or created by this Listing Agreement or any transaction contemplated hereby. All provisions in this Listing Agreement regarding representations and warranties, indemnification, disclaimers, limitations on liability, and payment obligations for fees incurred prior to the termination date shall survive any termination of this Listing Agreement. This Listing Agreement may be executed in counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument. Execution and delivery of the Listing Agreement may be evidenced by facsimile or PDF (Portable Document Format) and shall hold the same force and effect as an original signature for purposes of binding the parties.
5. Governing Law: This Listing Agreement shall be construed and enforced in accordance with the laws of the State of Texas, without regard to principles of conflict of laws.
6. DISCLAIMER; LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY LAW, THE ONLINE MARKETPLACE AND THE SERVICES PROVIDED BY PROSHOP HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROSHOP BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COVER, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF REVENUE, PROFITS, OR BUSINESS, ANY LOSS OF GOODWILL OR REPUTATION, OR THE COSTS OF SUBSTITUTE GOODS OR SERVICES.
7. Limitation Period: THE LISTING PARTY AGREES THAT ANY CLAIM ARISING OUT OF OR RELATED TO THIS LISTING AGREEMENT MUST BE COMMENCED WITHIN SIX MONTHS AFTER THE DISPUTE ARISES, AND IF NOT COMMENCED TIMELY, SHALL BE PERMANENTLY BARRED.

Report This Item