This listing agreement (“Agreement”) entered into on the date listed below (“Effective Date”), by and between the route seller (“Seller”) and The Route Exchange (“Agent”) for the marketing of a route located in the state provided below (“Route”). The Seller and the Agent are also referred to hereinafter individually as a “Party” and collectively as the “Parties”
WHEREAS, the Seller agrees that the Route will not be listed through any other Agent services during this timeframe;
WHEREAS, the Agent agrees to assist Seller in finding a buyer for their Route through online advertising/marketing;
NOW, THEREFORE, the Seller retains The Route Exchange to use its best efforts to advertise and market the Route as a Agent, subject to the following terms and conditions:
- This Agreement will begin on the Effective Date and continue without interruption for 12 months, unless extended or concluded by either party.
- This Agreement provides Agent with exclusive listing rights for the Route. Agent will attempt to find a purchaser for the duration of the Agreement. Seller agrees that the Route will not be listed through any other sales services during this timeframe. Seller has the ability to sell the Route on their own which is outlined in Section 4.3.
- If Agent secures a purchaser at any time during the original 12 month term, the term will be extended to include the closing date on the Route sale.
- The rights and obligations of the parties shall commence on the Effective Date, and shall terminate when the Route is sold, the Agreement expires, or if either Party submits a written request for termination prior to the end of the Term. This Agreement may be terminated by either party at any time for any reason without penalty subject to Agent’s rights to commissions as set forth in Section 2.1.
- AGENT’S COMMISSION
- 2.1. Seller agrees to pay Agent a commission equal to 7.50% of the selling price of the Route (“Commission”). Payment breakdown and schedule is detailed in Section 2.3. Seller will pay Agent the Commission under the following circumstances:
(a) A buyer who is ready, willing, and able to purchase the Route on terms deemed acceptable by the Seller in Seller’s sole and absolute discretion is acquired by Agent; or
(b) Seller sells the Route to a buyer acquired by the Agent during the Term of this Agreement; or
(c) Seller agrees to a purchase price, and selling terms deemed acceptable by the Seller, in writing with a willing and able Buyer acquired by Agent, but subsequently withdraws from selling the Route; or
(d) A buyer acquired by Agent is ready, willing, and able to purchase the Route but instead the Route is purchased back by the Company.
Commission is due for any buyer that is acquired by Agent’s efforts which include but are not limited to: word of mouth, print, email, phone, websites, social media, or Internet. In the event any one of the scenarios set forth in this Section 2.1 are satisfied, full Commission becomes due within 10 business days of the Route sale Closing regardless of whether the Closing occurs during the Term or after termination of this Agreement. This is detailed in Section 2.3.
- 2.2. Route Closing (“Closing”) is the date that final sales paperwork is filed with Company
- 2.3. Commission Payment Process. The Commission due to Agent will be paid as follows:
- A deposit/down payment/retainer of 7.50% will be paid by Buyer and sent to Agent. Funds will be held in escrow until closing and then treated as Agent’s commission; or
- Seller will pay full 7.50% commission after the Closing is completed
(c) Late payment interest of 5.00% will be added to the Commission on the 11th business day after Route closing. An additional 5.00% fee will be applied every 10 business days from there forth.
- 2.4. Down Payment. A buyer acquired by the Agent may be required to make a Down Payment (also referred to as earnest money) equal to 7.50% of the Route sale price into an escrow account approved by Agent. This payment will be due before purchasing papers are filed and will secure the Route for the buyer. The Down Payment will be disbursed to Agent at Closing and will be considered part of the Commission owed by Seller. In any case where the Down Payment is forfeited, the Agent will retain the full Down Payment. Any money Agent receives due to a buyer forfeiting their Down Payment will not be offset against the Commission due to Agent if Agent finds another buyer and is due a commission pursuant to Section 2.1 herein.
- 2.5. Seller and Agent shall each pay their own respective expenses involved in performance of their respective duties under this Agreement. The Agent agrees to advertise and promote the Route at its own expense and at its own discretion in terms of where and how. Subject to Section 4 herein, Seller will incur no out-of-pocket or upfront expenses other than Agent’s Commission.
- 2.6. Taxes and Independent Contractor Status. Through this Agreement, the parties intend to, and do, create an independent contractor relationship between them. Nothing herein shall be construed: (1) to be inconsistent with such relationship; (2) as constituting Seller, or its employees, as an employee, franchisee, partner, venturer or agent of Agent for any purposes whatsoever; or (3) as authorizing Seller, or any officer, director, agent or employee of Seller, to create or assume any obligation or liability in the name of The Route Exchange or to bind The Route Exchange. Any contrary final determination by any board, court of competent jurisdiction or agency shall entitle either party to immediately declare this Agreement null and void.
- OBLIGATIONS OF AGENT
Agent shall: (1) use its best efforts to find a buyer for the Route; (2) advertise the Route with other listings maintained by Agent; (3) promptly notify the Seller of prospective buyers; (4) interview prospective buyers and qualify them as ready, willing and able buyers based on financial documentation to the best of Agent’s ability based on the information provided to Agent; (5) use its best efforts to assist and provide Seller with recommended steps to ensure a secure transaction and closing, including but not limited to assisting Seller with negotiations with buyer; and (6) provide template final contracts of sale which Seller shall not rely upon without the advice of an attorney; Agent is not an attorney, financial advisor or tax advisor and shall not be relied upon for such professional advice. Agent cannot be held liable if information provided to Agent is falsified or inaccurate. Agent is not buying or selling the business and is instead marketing, advertising and qualifying potential buyers.
- OBLIGATIONS OF SELLER
4.1. Seller Representations. Seller represents and warrants that it:
(a) Will use its best efforts to assist, and provide all necessary information to all leads provided by Agent;
(b) Provide accurate information regarding the Route for sale;
(c) Will promptly reply to all inquiries and questions from Agent;
(d) Has the legal authority and capacity to enter into this Agreement;
(e) Possesses the contractual authority to sell the Route; and
(f) Knows of no rights or obligations to third parties which would interfere with the sale of the Route.
4.2. Seller Restrictions. Seller represents and warrants that it will not:
(a) Attempt to list this Route for sale with any other individual, agency, company, group, or business.
(b) List this Route for sale by Seller for a price or terms different than the price and terms listed by Agent.
(c) Attempt to circumvent Agent and try to sell this Route to a Buyer acquired by the Agent without utilizing Agent’s services and paying Agent’s commission.
(d) For one year following the termination of this Agreement or the expiration of the Term of this Agreement, sell the Route to a Buyer Procured by the Agent or an individual who was first identified and submitted to the Seller by the Agent.
(e) Terminate this Agreement after Agent has procured a ready, willing, and able buyer under acceptable contract terms by the Seller.
(f) Fail to respond to Agent within 7 days of being contacted by Agent regarding any questions or inquires.
4.3. Buyer’s acquired by Seller. In the event that Seller procures a buyer for the Route (that was not a Buyer acquired by Agent), Seller may terminate this Agreement without penalty so long as Seller provides Agent with the signed contract between Seller and the buyer and so long as Seller did not attempt to list this Route for sale, directly with any other individual, agency, company, group, or business in violation of Section 4.2.
4.4. Breaches of this Agreement. In the event that Seller breaches any of the warranties or obligations set forth in this Section 4, and if Seller fails to rectify such breach within 7 days’ notice from Agent, Seller shall pay to Agent as liquidated damages, and not as a penalty, an amount equal to the greater of: 5.00% of the initial listing price of the Route or $5,000.00. The Parties agree that the greater of: 5.00% of the initial listing price of the Route or $5,000.00 is reasonable to account for the damages the Agent will incur in the event that Seller breaches one of the obligations set forth in this Section 4. The liquidated damages will be due and payable to Agent within 10 days of the end of Seller’s 7 day cure period if the breach is not cured.
All notices, approvals, consents and other communications required or permitted under this Agreement shall be in writing and delivered by confirmed email, or by registered mail, return receipt requested, and is in each instance will be deemed delivered upon receipt. Notices must be delivered to the provided addresses or at such other addresses as may be later designated by notice
- COPYRIGHTED MATERIAL
All Agent websites, logos, and any written material are copyrighted, trademarked, and owned by the Agent. Seller may not use Agent’s copyrighted or trademarked material to market their business or Route.
During the term of this Agreement and for a period of five years thereafter, Agent shall maintain in confidence and use only for purposes of this Agreement any information or documentation which Seller marks “Confidential” (collectively “Confidential Information”). To the extent it is reasonably necessary or appropriate to fulfill its obligations or exercise its rights under this Agreement, Agent may disclose Confidential Information which it is otherwise obligated under this Section 7 not to disclose to its affiliates and to prospective buyers, on a need-to-know basis, on condition that such entities or persons agree to keep the Confidential Information confidential for the same time periods and to the same extent as Agent is required to keep the Confidential Information confidential.
During the term of this Agreement and for a period of five years thereafter, Seller shall maintain in confidence and use only for purposes of this Agreement any information or documentation which Agent provides to Seller including but not limited to market research, forms used by Agent provided to Seller, prospective buyer and lead lists, the information and documentation provided by prospective buyers to Agent, and other information that Agent may or may not mark as “Confidential” (collectively “Confidential Information”). To the extent it is reasonably necessary or appropriate to fulfill its obligations or exercise its rights under this Agreement, Seller may disclose Confidential Information which it is otherwise obligated under this Section 7 not to disclose to its legal and tax advisors, on a need-to-know basis, on condition that such entities or persons agree to keep the Confidential Information confidential for the same time periods and to the same extent as Seller is required to keep the Confidential Information confidential. Under no circumstances may Seller share the Confidential Information with other distributors or any other third parties.
- GENERAL PROVISIONS
8.1. Binding Effect; Benefits. This Agreement shall inure to the benefit of the Parties hereto and shall be binding upon the Parties hereto and their respective heirs, successors, and assigns. Except as otherwise set forth herein, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or their respective heirs, successors, and assigns any rights, remedies, obligations, or other liabilities under or by reason of this Agreement.
8.2. Legal Disclaimer. SELLER ACKNOWLEDGES AND UNDERSTANDS THAT AGENT IS NOT A LAW FIRM, FINANCIAL ADVISOR, BUSINESS ADVISOR OR TAX ADVISOR AND IS NOT PROVIDING SELLER WITH ANY LEGAL, FINANCIAL OR TAX ADVICE, AND ANY SUCH ADVICE GIVEN SHOULD NOT BE INTERPRETED AS PROFESSIONAL LEGAL, FINANCIAL, BUSINESS OR TAX ADVICE UPON WHICH SELLER SHOULD RELY. AGENT IS OPERATING EXCLUSIVELY AS A MARKETING OR ADVERTISING SERVICE. WHILE AGENT AND AGENT’S LEGAL COUNSEL MAY PROVIDE THE SELLER WITH CONTRACTS TO BE USED THESE CONTRACTS ARE DESIGNED TO BE TEMPLATE FORMS. THE SELLER SHOULD AND IS ADVISED TO OBTAIN LEGAL COUNSEL TO REVIEW ANY CONTRACTS, DOCUMENTS, OR AGREEMENTS PRIOR TO EXECUTING THEM AND UNDER NO CIRCUMSTANCES WILL AGENT BE LIABLE TO SELLER FOR ANY LEGAL, FINANCIAL, BUSINESS OR TAX ADVICE.
8.3. Late Fees. For any payment or fee due to Agent not paid within 10 business days after its due date, Seller shall pay a late fee equal to the lesser of 5.0% per month of the unpaid amount.
8.4. Limitation of Liability. IN NO EVENT SHALL AGENT BE LIABLE TO SELLER FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT, OR OTHERWISE. EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR PAYMENT OBLIGATIONS, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. AGENT’S AGGREGATE LIABILITY TO SELLER AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS
RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY SELLER TO AGENT UNDER THIS AGREEMENT.
8.5. Entire Agreement. This Agreement shall constitute the entire agreement between the Parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding on either party to this Agreement except to the extent incorporated in this Agreement.
8.6. Amendments. This Agreement may not be modified or changed except by an instrument or instruments in writing signed by Seller and Agent.
8.7. Assignment. The rights and obligations of the Parties under this Agreement shall not be assignable except with the prior written consent of the other Party hereto.
8.8. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Illinois. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the State of Illinois in Kane County. Each of the parties hereby consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Service of any court paper may be affected on such party by mail, as provided in this Agreement, or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
8.9. Attorneys’ Fees and Costs. The prevailing party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorney’s fees, costs, and expenses in addition to any other relief to which a party may be entitled to. Further, in the event of any unpaid fees by Seller, Agent is entitled to all cost of collection fees as well.
8.10. Right to Audit. Seller shall allow Agent to audit Seller at reasonable times and on reasonable notice to verify compliance with Seller’s performance of its obligations under this Agreement.
8.11. Severability. If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.
8.12. Waiver. The failure of either Party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature.
8.13. Survival. The provisions of this Agreement which are, by their express or implicit terms, intended to survive termination or expiration of this Agreement, shall survive such termination or expiration and remain binding and enforceable.
8.14. Entire Agreement. This Agreement as well as any attached Exhibits contains the entire agreement of the parties with respect to the subject matter herein and no prior verbal or written promises or agreements, verbal or written, shall have any force or effect.
8.15. Signatures; Counterparts. This Agreement may be executed in counterparts, and signatures provided by email, PDF, or facsimile shall be binding.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first above written. Seller represents and warrants that all information submitted regarding their Route business opportunity is accurate.
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