RICK LATONA AUCTIONS, LLC
SELLER AGREEMENT FOR DOMAIN NAME SUBMISSIONS
THIS RICK LATONA AUCTIONS, LLC SELLER AGREEMENT (hereafter referred to as the “Agreement”) is entered into, by and between Domain Owner (hereafter referred to as “Seller”), and Rick Latona Auctions, LLC, a Georgia Limited Liability Company (hereafter referred to as “RLA).
WHEREAS, RLA is in the business of developing and hosting silent online and live internet domain name auctions;
WHEREAS, Seller is desirous of using the domain auction sales services of RLA to sell one or more domains of Seller;
WHEREAS, RLA is desirous of selling one or more domains owned by Seller in one of RLA’s domain auctions;
WHEREAS, it is the desire of Seller to grant to RLA the exclusive right and authority to sell the Internet domain names submitted via the RLA website at ricklatona.com using the form at ricklatona.com/auctions/submission-form/. The Domain Name Reserve may be selected on the form, but any future subsequent Agreement between RLA and Seller will establish the actual Reserve Price that the Domains will be sold for.
WHEREAS, it is the desire of RLA to use its commercially reasonable efforts sell the Domains in accordance with the terms and conditions contained herein; and,
NOW THEREFORE, the Parties do hereby agree as follows:
1. TERM: This Agreement shall become effective upon submission (hereafter referred to as “Effective Date”). During the term of this Agreement, Seller grants to RLA the EXCLUSIVE right and authority to sell the Domains for Auction set to end on the date of the next published RLA auction as posted at ricklatona.com/auctions (hereafter referred to as “Auction End Date”) for a period of sixty days (60) calendar days from the date of Auction End Date. During this sixty (60) day period only RLA may sell the Domains. Unless renewed or extended by mutual agreement of the parties, this Agreement shall expire sixty (60) days from the Auction End Date. Therefore, the “Term” of this Agreement begins on the Effective date and shall end sixty (60) days after the Auction End Date.
2. EXCLUSIVITY: During the Term of the Agreement, Seller agrees not to use, appoint, hire, retain or engage any person or entity, other than RLA, to act as Seller’s agent, sales representative or in a similar capacity with respect to the Domains. In the event that Seller sells or markets the Names directly to a buyer or through any person or entity other than RLA during the term of this Agreement, RLA shall be entitled to receive the Fee as set forth herein.
3. RLA FEE: For and in consideration of the services provided by RLA, Seller agrees that RLA is entitled to a Fee in amount as follows:
a. Seller agrees to pay RLA a fee for each or any Domain sold (hereafter referred to as the “Fee”) equal to fifteen percent (15%) of the Actual Sales Price of the Domain and this Fee shall be earned for when the Actual Sales Price of the Domain meets or exceeds any agreed upon reserve. RLA shall not be authorized to consummate the sale of a Domain on Seller’s behalf unless and until Seller has given its written consent to the proposed Actual Sales Price for such Domain if the reserve price has not been met.
b. Seller agrees and understands that RLA may take various actions to facilitate the actual purchase of a Domain from Seller during the Term and these actions include, but are not limited to, offering and facilitating financing, escrow or other services in an effort to help buyers buy the Domains.
c. The parties expressly agree and understand that the “Actual Sales Price” means the sum of the cash and the value of any other consideration that a buyer has agreed to pay, barter or exchange for the Domains.
d. The Fee shall be deducted from Actual Sales Price Buyer Payment which shall be made directly to RLA. RLA requests wire transfer no later than 72 hours from the end of the Auction, but exceptions arise that may extend this period. For example, on domain name sales in excess of 100,000 USD it is usual and customary for the transaction to take no less than 30 days.
e. Seller shall have no obligation to transfer any Domains or facilitate the transfer of any Domains until RLA has received and confirmed receipt of Full Actual Sales Price payment. Once RLA verifies that funds are on deposit, Seller shall transfer domain name(s) to Buyer. Upon completion and verification of transfer to Buyer, RLA shall wire transfer funds to Seller within 72 hours of verification of transfer.
4. INCORRECT SUBMISSIONS BY SELLER: If Seller submits a domain to RLA pursuant to this Agreement, which Seller does not own or otherwise have the right to sell, and such improper submission is not discovered prior to the sale of the name by RLA, Seller shall nonetheless be responsible to RLA for payment of the Fee hereunder.
5. RLA COVENANTS: RLA covenants and agrees to use commercially reasonable efforts to secure buyers for the Domains during the Term and may conduct a live or silent internet auction for the sale of the Domains. RLA agrees that its responsibilities shall be performed in a diligent, competent and professional manner. Seller acknowledges and agrees that this Agreement does not require RLA to render services solely to Seller or to devote RLA’s entire business time and effort to the performance of its duties in this Agreement. During the Term, RLA shall have the right to act as a sales representative, and/or marketing agent for persons and entities other than Seller, including, without limitation, persons and entities who are or who may be in competition with Seller.
6. SELLER COVENANTS: Seller agrees, that during the Term, Seller shall do the following:
a. Refer all previous, pending and future Domain purchase inquires from brokers, purchasers or other parties interested in purchasing the Domains to RLA;
b. Provide RLA with complete and accurate information regarding Seller and the Domains promptly upon request by RLA;
c. Assist RLA in the marketing and sale of the Domains as may reasonably be requested by RLA;
d. Provide to RLA such other information and data as RLA may reasonably request from time to time in order to permit RLA to perform its duties hereunder;
e. Transfer the Domains to the new owners as required herein.
7. SELLER’S REPRESENTATIONS: Seller represents and warrants to RLA that it owns, possesses, and has the authority to transfer, good, valid and marketable title to the Domains. Seller further warrants and represents to RLA that:
a. Seller is the sole owner of all right, title and interest in the Domains;
b. The Domains will be transferred to the buyer free of any liens, encumbrances, restrictions, licenses, or security interests;
c. Seller properly purchased and registered the Domains without committing fraud or misrepresentation;
d. The Domains do not infringe the rights of any third party; and
e. The Domains have not been, and are not currently the subject of any litigation, claims, arbitration or other legal proceeding, either pending, contemplated or threatened, nor has Seller received any notice of any such pending items.
8. OPTIONAL ESCROW SERVICES: Seller agrees and understands that, at the option of the buyer, the purchase of the Domains will close in escrow; with an authorized escrow service provider of RLA’s choosing. Seller agrees to be bound by the terms and conditions of the escrow service. RLA reserves the right to change escrow services and to exercise sole discretion in the choice of escrow services to be used in the sale of the Domains.
9. INDEMNIFICATION OF RLA: Seller agrees to indemnify and hold harmless RLA, its officers, directors, shareholders, employees and agents (collectively included herein when referring to “RLA”), from and against any and all loss, damage, liability or expense including reasonable attorneys’ fees and costs, to which RLA may be put or to which RLA may incur by reason of RLA’s performance of, this Agreement, other than through RLA’s gross negligence or willful misconduct.
10. RELATIONSHIP OF THE PARTIES: RLA is retained hereunder as an independent contractor and nothing herein contained shall create an employer/employee, principal/agent, partnership or joint venture relationship between the Parties.
11. CONFIDENTIALITY: Each Party agrees that it shall not disclose the terms of this Agreement to any person or persons except as required by applicable law or compelled by a court of competent jurisdiction. Notwithstanding the foregoing, this provision shall not apply to disclosures made by either party to their agents, employees and advisors to whom such disclosure is necessary in order to perform pursuant to this Agreement.
12. ATTORNEY’S FEES AND COSTS: In connection with any litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney’s fees, for services rendered in connection with such litigation, including appellate proceedings and post-judgment proceedings.
13. DISCLOSURE OF RELEVANT INFORMATION: Seller and RLA specifically acknowledge and understand that if either Seller or RLA knows of any information materially affecting the value of the Domains, whether said information is readily discernable or publically available, Seller or RLA, as applicable, shall disclose these facts to the other Party.
14. NOTICES: Any notice required or permitted to be delivered pursuant to this Agreement must be delivered by facsimile, U.S. Mail, certified or registered mail, or overnight courier, and addressed as set forth below the signature line of the Party to whom notice is being given, or to such other address as the Parties may from time to time designate by notice in writing to the other Party.
15. GOVERNING LAW: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without respect to its conflict of laws provisions. Venue for any litigation arising under, or in connection with, this Agreement shall be in Fulton County, Atlanta, Georgia. The parties agree to confer jurisdiction for any and all actions concerning this Agreement, upon the state or superior courts of Fulton County, Atlanta, Georgia.
16. ENTIRE AGREEMENT: This Agreement constitutes and represents the entire agreement between the Parties and supersedes any prior understandings or agreements, written or oral, between the Parties respecting the subject matter of this Agreement. This Agreement may be amended, supplemented or modified only upon an agreement in writing executed by all of the Parties. This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. If any provision of this Agreement shall be determined to be invalid, void or illegal, such provision shall be construed and amended in a manner which would permit its enforcement, but in no event shall such provision affect, impair or invalidate any other provision in this Agreement.
17. FORCE MAJEURE: RLA shall not be liable for any failure of performance due to causes beyond RLA’s control, including, but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, or governmental action, national emergencies, insurrections, riots or wars; unavailability of internet connectivity; however, RLA shall use commercially reasonable efforts to eliminate such event.
18. LIMITATION OF WARRANTY AND LIABILITY: ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND RLA EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. RLA DOES NOT WARRANT OR GUARANTY THAT THE AUCTION SERVICE WILL RESULT IN THE SALE OF THE DOMAINS NOR DOES RLA GUARANTEE THAT THE AUCTION WILL OPERATE WITHOUT FAULT, ERROR OR INTERRUPTION. SELLER’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE TO PROVIDE THE SERVICES PROMISED HEREIN IS TO TERMINATE THIS AGREEMENT. THE LIABILITY OF RLA FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS, REPRESENTATIONS, OR ARISING OUT OF THE FAILURE TO FURNISH SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, OR ANY OTHER DAMAGE OCCURING SHALL BE LIMITED TO THE FEE PAID BY SELLER TO RLA PURSUANT TO THIS AGREENMENT AND IN NO WAY SHALL RLA’S LIABILITY EXCEED THE FEE. RLA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF RLA’S EMPLOYEES OR REPRESENTATIVES, CULPABLE NEGLIGENCE, OR WILLFUL MISCONDUCT REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES.
19. ASSIGNMENT: Seller may not assign its rights and obligations under this Agreement without the express written consent of RLA, which will not unreasonably be withheld. Notwithstanding the foregoing, RLA may assign or transfer this Agreement without notice to an RLA affiliate or successor in interest.
20. SEVERABILITY: Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity and maintain the parties’ original intent.
21. HEADINGS AND COUNTERPARTS: As used in this Agreement, captions and paragraph headings are provided solely for convenience and shall not be deemed to restrict, limit or interpret the meaning of the text. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Photocopies, signatures reproduced by mechanical, digital or other means, and/or facsimile transmittal signature pages may be used instead of originals.
© 2010