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HomeMy WebLinkAboutGovDeals Sellers Agreement -2005 01 05 GovDeals Sellers Agreement This Agreement is between GovDeals, Inc. ("GovDeals"), a Delaware corporation having its principal place of business at 5913 Carmichael Place, Montgomery, Alabama, 36117 and City of Winter Springs ("Client"), having its principal place of business at 1126 East S. R. 434 - Winter Springs, Florida 32708. 1.0 Descriotion of Services: GovDeals provides a means for sellers to list items for sale and for potential buyers to bid upon these items via an Internet-based auction system. Although GovDeals may provide software and applications to the Client to make the listing of items easier, GovDeals is not a party to the actual sale and has no control over the listed information or the ability of the buyer and seller to complete the transaction. 2.0 GovDeals Resoonsibilities: In addition to the operation of an Internet auction server, GovDeals will provide the Client with the following services during the term of the Agreement: 2.1 Access to a web-based application ("GovDeals Auction Server") that will help the Client maintain information about assets and submit them to auction. The GovDeals Auction Server will: 2.1.1 Accept descriptive information concerning an asset; 2.1.2 Allow different auction phases based upon dates and times to be specified; 2.1.3 Permit the assignment of certain buyer restrictions during each auction phase; and 2.1.4 Facilitate requests for credits regarding transactions that were not completed. 2.2 Training and support services to implement the GovDeals service, which will include: 2.2.1 Familiarization with the nature and operation of the GovDeals Auction Server; 2.2.2 Guidance in the initial entry of assets; 2.2.3 Procedures for taking and posting pictures of assets; and 2.2.4 Assistance in the development of an implementation plan and schedule. At GovDeals option, training and support services will be provided either on-site or via telephone and the Internet. 2.3 A customer support desk available via telephone or e-mail between the hours of 8:00 a.m. and 6:00 p.m., Eastern time, Monday through Friday, except announced holidays. 2.4 Marketing of the on-line auction service to promote use of the site by potential buyers. 3.0 Client ResDonsibilities: To promote a successful operation and increase the benefits from using GovDeals auction capabilities, the Client agrees to: GovDeals Sellers Agreement -VA.3 - 1.30.04 Page 1 Copyright 2001, GovDeals, Inc. 3.1 Provide on-site support and resources required to access the GovDeals Auction Server via the Internet; 3.2 Make sufficient personnel related to surplus property disposal available for training, implementation, and initial data entry; 3.3 Cooperate with marketing campaigns, including providing a mailing list of prior auction customers, if available; and 3.4 When deemed appropriate at Client's sole and absolute discretion, utilize GovDeals Auction Server and on-line auction capabilities during the term of this Agreement by: 3.4.1 Listing assets for sale on the GovDeals auction service; 3.4.2 Completing sales transactions for assets sold via this service; 3.4.3 Not selling through some other means any item for which it has received a winning bid via GovDeals for the specific purpose of avoiding the GovDeals fee; and 3.4.4 Not engaging, directly or indirectly, in any activities intended to manipulate or interfere with the bidding process. 4.0 Fees: GovDeals agrees that any fees paid by Client under this agreement are contingent upon the sale of items sold at auction by GovDeals. For any item that is sold as a result of posting it to the GovDeals web site, the following fees apply. 4.1 Where a single auction item does not yield greater than $100,000 in a winning bid, Client agrees to pay GovDeals a fee of seven and one-half percent (7.5%) of the winning bid, but not less than $5.00. 4.2 Where a single auction item yields greater than $100,000, but does not yield greater than $500,000 in a winning bid, Client agrees to pay GovDeals a fee of five and one- half percent (5.5%) ofthe winning bid. 4.3 Where a single auction item yields greater than $500,000 in a winning bid, Client agrees to pay GovDeals a fee of three and one-half percent (3.5%) of the winning bid. No other compensation or fee shall be paid to GovDeals by Client under this Agreement. 5.0 Payment: 5.1 GovDeals will invoice Client for fees on a periodic basis. Client agrees to remit payment to GovDeals within thirty (30) calendar days, unless an applicable prompt payment act or similar legislation specifies a different time period. 5.2 Client shall promptly, but not more than sixty (60) calendar days after the sale date, notify GovDeals of any transaction that was not consummated. The fees for said transaction shall be credited to the Client during the next invoice period. 6.0 Term of A2reement: This Agreement shall commence on the date it is signed by the second party to do so and will continue for a period of twelve months unless otherwise terminated upon sixty days written notice by either party. This Agreement shall be automatically extended for additional one-year periods, unless either party notifies the GovDeals Sellers Agreement -VA.3 - 1.30.04 Page 2 Copyright 200 1, GovDea1s, Inc. . . other in writing of its intent not to renew at least sixty days prior to the anniversary date. Either party may request a re-negotiation of the terms hereof during a period sixty days prior to the anniversary date of this Agreement. 7.0 Rie:ht to Sell and Content: Client will only post items to the GovDeals auction site that the Client has the legal right to sell or dispose of to qualified buyers. Any information posted will be accurate to the best of Client's ability and not contain anything of a pornographic or objectionable nature. Client agrees to only use links to digital pictures of associated assets as provided for in the GovDeals software, and will not create links to any other site, text or other information without the written consent of GovDeals. 8.0 Online Sales - Terms and Conditions: Attached hereto are model Online Sales - Terms and Conditions for use by client. At any time during the term of this Agreement, Client may modify the Terms and Conditions. Said substitution modification must be submitted to GovDeals in writing for posting to the GovDeals auction site. The Terms and Conditions posted to the GovDeals auction site shall not modify, amend or affect the provisions of this Agreement 9.0 Information and Security: 9.1 Client agrees that GovDeals is not responsible for the accuracy of information provided to it by seller(s) and/or buyer(s). GovDeals will use reasonable efforts to protect information that is on its web site from inappropriate use and loss. 9.2 Client grants GovDeals a non-exclusive, non-transferable, irrevocable, and royalty- free right to exercise any copyright or publicity rights Client may have in the information it posts to the GovDeals server(s). GovDeals agrees to use this information only for its intended purpose in support of this Agreement. 10.0 Interference: Client will not use any programs, routines, or applications in connection with GovDeals that will interfere with the operation of the software or site. Specifically, the Client will only communicate with the GovDeals Auction Server by using software and applications that GovDeals provides or specifically approves in writing. 11.0 ProDrietarv Intellectual ProDertv Exclusivitv and Confidentialitv: The proprietary Internet-based auction system, environment, and components (collectively, the "System") provided by GovDeals under this Agreement are, and will remain, the exclusive property of GovDeals. GovDeals retains and reserves all rights to the proprietary intellectual property, including, but not limited to, all copyrights and trademarks of and to the System. GovDeals is providing the Client hereunder with a license for said System solely for its own use. Client may not subcontract, sell, lease, transfer, assign or otherwise share said System with any third party. Client acknowledges that the System constitutes the proprietary and confidential property of GovDeals and agrees not to directly or indirectly use, employ, divulge, disclose, transfer, or communicate to any person, firm, corporation or other entity, in any manner whatsoever, any of the System or documentation/information provided by GovDeals Sellers Agreement -V.4.3 - 1.30.04 Page 3 Copyright 2001, GovDeals, Inc. ,t . . GovDeals. In the event of termination of this Agreement, Client shall promptly return to GovDeals or at the option of GovDeals destroy, all documentation/information regarding the System. 12.0 Warranty Disclaimer: GovDeals does not warrant error-free or uninterrupted use of the GovDeals service. The GovDeals web sites, services, software and applications are provided without warranty, express or implied, including, but not limited to, any implied warranties for merchantability or fitness for a particular purpose. GovDeals, its directors, officers, employees, agents and/or affiliates shall not be liable for any loss of profit and/or any direct, indirect, special, incidental or consequential damages resulting from the services offered herein. 13.0 Governance: Venue: This Agreement will be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. Venue for any dispute shall be Seminole County, Florida for any state actions and Orlando, Florida for any federal actions. 14.0 Counteroarts: This Agreement may be executed in two or more counterparts, each of which after execution and delivery shall be deemed an original, but all of which shall constitute one and the same instrument. 15.0 Non-Exclusive Ene:ae:ement: This Agreement is not exclusive. At its sole and absolute discretion, the Client may utilize other disposal approaches, including traditional auctioneer services and sealed bids in addition to GovDeals services. However, if the City elects to list an item on the GovDeals auction site, GovDeals shall have the exclusive right to sell the item as long as the item remains listed. 16.0 Entire Ae:reement: This Agreement represents the entire understanding between the parties with respect to its subject matter. 17.0 Sovereie:n Immunitv: Nothing contained in this Agreement shall be construed as a waiver ofthe Client's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on Client's potential liability under state or federal law. 18.0 Modifications: This Agreement may only be modified by written instrument executed by the parties hereto. 19.0 GovDeals Dutv of Noninterference: GovDeals agrees not to interfere with Client's right to sell, buy, or lease any property required by Client to perform any governmental function whatsoever. 20.0 Attornevs Fees: In the event any dispute or legal action arising under this Agreement, each party shall incur their own attorney's fees and costs, and expenses through all appellate proceedings. GovDeals Sellers Agreement -VA.3 - 1.30.04 Page 4 Copyright 2001, GovDeals, Inc. , ". .,.. THE ABOVE AGREEMENT IS ACCEPTED AND AGREED TO. GovDeals: By:~M~ Citv or Winter SDrin2s: By:~f,J.1nC'foUI.~ " Name: Robert L. DeBardelaben Name: _Ronald W. McLemore Title: Senior Vice President Title: City Manager I - s - ~\)o&" Date: \ .~\ ~<=\ \ at Date: Primary Contact Person: (Contract development) Name: Steve Kranzusch Title: Director of Company Development Telephone Number: (866) 377-1494 Fax Number: (334) 277-0557 e-mail: skranzusch@govdeals.com Primary Contact Person: Name: Louie Meletlidis Title: Network Technician Telephone Number: (407) 327-5954 Fax Number: (407) 327-6670 e-mail: Imeletlidis@winterspringsfl.org Primary Contact Person: (Contract implementation) Name: Tom Clark Title: Vice President, Client Services Telephone Number: (800) 613-0156 Fax Number: (615) 846-1154 e-mail: tclark@govdeals.com GovDeals Sellers Agreement -Version 061101-01 Page 5 Copyright 2001, GovDeals, Inc.