pixelpadre

We really need to start and keep a thread on each of the big domain auction sites since some are good and some are bad.

Take a peak at the Moniker Auction contract they want you to sign. I own importationdotcom and wanted to list it with them but after reading the contract I was blown away.


THIS EXCLUSIVE RIGHT TO SELL AGREEMENT (this “Agreement”) is entered into this ____ day of _____****____, 2008, by and between __________________ (hereinafter referred to as “Seller”), and DomainSystems, Inc, a Florida corporation (hereinafter referred to as “Buyer/Seller Agent”) (Seller and Buyer/Seller Agent each a “Party” and may be collectively referred to as the “Parties”).

WHEREAS, it is the desire of Seller to grant to Buyer/Seller Agent the exclusive right and authority to sell the Internet domain names, assets or web sites listed on one or more of the ADDENDA hereto (the “Name or Names”), in accordance with the terms and conditions contained herein; and,

WHEREAS, it is the desire of Buyer/Seller Agent to use its commercially reasonable efforts to secure purchasers to purchase the Names in accordance with the terms and conditions contained herein; and,

NOW THEREFORE, the Parties do hereby agree as follows:

TERM OF THE AGREEMENT: Seller grants Buyer/Seller Agent the exclusive right and authority to sell the Name(s) for one hundred and twenty (120) calendar days from the date of submitting/declaring one of the Name(s) on the ADDENDA to this Agreement or sixty (60) days from the conclusion of any auction or private sale taking place after the submission/declaring of the Name(s) on the ADDENDA, whichever occurs later (the “Exclusive Sale Period”). The ADDENDA to this Agreement shall consist of, but are not limited to, those items submitted by Seller for selection and acceptance by Buyer/Seller Agent to secure purchasers. This exclusive right and authority to sell period will automatically renew at the end of each term unless Buyer/Seller Agent is notified by Seller in writing within 15 days of expiration that Seller is terminating the Agreement.

Once a Name is submitted by Seller, whether by ADDENDA or otherwise, the Name becomes subject to this Agreement, whether or not Seller is notified that the Name has been selected for the auction or private sale. If, however, Buyer/Seller Agent notifies Seller that a Name has not been selected for auction or private sale, Seller will be permitted to withdraw the Name from submission.

EXCLUSIVITY: During the Exclusive Sale Period, Seller agrees not to use, appoint or engage any person or entity other than Buyer/Seller Agent to act as its agent, sales representative or in a similar capacity with respect to the Names during the term of this Agreement. In the event that Seller sells or markets the Names directly to a buyer or through any person or entity other than Buyer/Seller Agent during the term of this Agreement, Buyer/Seller Agent shall be entitled to receive the Fee (as hereinafter defined).

NON CIRCUMVENTION: In addition to any other rights Buyer/Seller Agent may have, during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Seller shall not, directly or indirectly:

a.Make contact or attempt to make contact, solicit or attempt to solicit, negotiate
or attempt to negotiate, enter into or attempt to enter into any agreement, and/or transact or attempt to transact any business with any potential purchaser (or such purchaser’s attorneys, agents (other than Moniker), representatives, employees, officers, directors, principals, owners, shareholders, members, managers or any person or entity that is connected, directly or indirectly, with such purchaser) procured by or introduced to Seller by Moniker, except to the extent such contact is through, or with the prior written consent of, Moniker; and

b.Commit any other acts, directly or indirectly, which would affect in any way
whatsoever, circumvent the restrictive covenant stated in subparagraph 3(a) immediately above.

c.In the event that Seller violates the provisions of Section 3(a) or (b), Buyer/Seller
Agent shall be entitled to receive the Fee (as hereinafter defined).

BUYER/SELLER AGENT COMPENSATION:

a. Seller agrees to pay Buyer/Seller Agent a fee for each or any Name sold (the “Fee”) equal to fifteen percent (15%) of the Total Sales Price of such Name that meets or exceeds the agreed upon reserve. Buyer/Seller Agent shall not be authorized to consummate the sale of a Name on Seller’s behalf unless and until Seller has given its written consent to the proposed Total Sales Price for such Name if the reserve price has not been met. Seller understands that Buyer/Seller Agent actually purchases the domain from Seller and then resells the domain/s to the buyer through the sales and auction process.

b. Seller agrees that Buyer/Seller Agent may purchase a Name from Seller during the Exclusive Sale Period in an effort to consummate a sale with another party (For creative financing, special term sales, etc). DomainSystems, Inc./ Moniker.com does become the owner of each domain name in the sales and change of ownership process and through escrow. The Buyer/Seller Agent will not be a bidder at an auction.

c. For purposes hereof, “Total Sales Price” means the sum of the cash and value of any other consideration that a buyer has agreed to pay for the Name, excluding any escrow or finders fee paid by Buyer (as hereinafter defined).

d. The Fee with respect to each sale of a Name consummated during the Exclusive Sale Period shall be paid by Seller to Buyer/Seller Agent (by wire transfer from funds in escrow account).

e. The Buyer/Seller Agent shall have no obligation to deliver any transfer documents until Buyer/Seller Agent has received payment of the required Fee.

5. ERRONEOUS SUBMISSIONS BY SELLER: If Seller erroneously submits a domain to Buyer/Seller hereunder which Seller does not, in fact, own or otherwise have the right to sell, and such error is not discovered prior to the sale of the name by Buyer/Seller Agent, Seller shall nonetheless be responsible to Buyer/Seller Agent for payment of the commission hereunder.

6.REIMBURSEMENT OF COSTS: Buyer/Seller Agent shall bear all costs and expenses incurred by it in connection with the performance of its duties hereunder; provided, however, that Seller shall reimburse Buyer/Seller Agent for any reasonable travel expenses that are expressly pre-approved by Seller in writing and thereafter incurred by Buyer/Seller Agent to attend meetings at Seller’s request.
BUYER/SELLER AGENT RESPONSIBILITIES: Buyer/Seller Agent agrees to use commercially reasonable efforts to secure buyers for the Names during the Exclusive Sale Period. During the Exclusive Sale Period, Buyer/Seller Agent may conduct an auction or private/public sale of the Name via the Internet or other reasonable means. Buyer/Seller Agent agrees that its responsibilities shall be performed in a diligent, competent and professional manner. Seller acknowledges and agrees that this Agreement does not require Buyer/Seller Agent to render services solely to Seller or to devote Buyer/Seller Agent’s entire business time and effort to the performance of its duties hereunder. During the Exclusive Sale Period, Buyer/Seller Agent shall have the right to act as a sales representative, distributor 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.
????: NamePros.com http://www.namepros.com/domain-name-discussion/449617-moniker-auction-terms-outrageous.html

SELLER RESPONSIBILITIES: Seller agrees to do the following during the Exclusive Sales Period:

a. Refer all previous, pending and future inquires from brokers, Buyer/Seller Agents, purchasers or others interested in the Names to Buyer/Seller Agent;

b. Provide Buyer/Seller Agent with complete and accurate information regarding Seller and the Names promptly upon request by Buyer/Seller Agent;

c. Assist Buyer/Seller Agent in the marketing and sale of the Name as may reasonably be requested (such assistance shall be at Buyer/Seller Agent’s sole expense unless Seller provides express written authorization in advance); and

d. Provide to Buyer/Seller Agent such other information and data as Buyer/Seller Agent may reasonably request from time to time in order to permit Buyer/Seller Agent to perform its duties hereunder.

REPRESENTATIONS OF SELLER: Seller represents and warrants to Buyer/Seller Agent that it (i) has the authority to enter into this Agreement and (ii) possesses, and has the authority to transfer, good, valid and marketable title to the Name(s). Seller further warrants and represents to Buyer/Seller Agent that: 1) Seller is the sole owner of all right, title and interest in the Name(s); 2) the Name(s) are/is being transferred to Buyer/Seller Agent free of any liens, encumbrances, restrictions, licenses, or security interests; 3) Seller properly purchased and registered the Name(s) without committing fraud or misrepresentation; 4) the Name(s) do/does not infringe the rights of any third party; and 5) the Name(s) have/has not been, and are/is 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.

ESCROW: Except as otherwise agreed to in a writing signed by both parties, the contemplated purchase and sale of any Name(s) hereunder shall take place pursuant to Buyer/Seller Agent’s escrow procedures set forth in the terms and conditions contained on Buyer/Seller Agent’s website (which are incorporated herein), as amended from time to time.

INDEMNIFICATION: Seller hereby agrees to indemnify and hold harmless Buyer/Seller Agent, its officers, directors, shareholders, employees and agents, from and against any and all loss, damage, liability or expense (including reasonable attorneys’ fees and costs), to which they may be put or which they may incur by reason of, or in connection with, any misrepresentation made by Seller, any breach of any of warranties by Seller, Seller’s failure to fulfill any of its covenants or obligations under this Agreement, or any trademark, copyright or patent infringement arising out of or relating to the Name(s), or in any way arising out of Buyer/Seller Agent’s being a party to, or Buyer/Seller Agent’s performance of, this Agreement, other than through Buyer/Seller Agent’s gross negligence or willful misconduct. The foregoing obligation shall exist only if Buyer/Seller Agent (i) promptly notifies Seller of such claim, (ii) provides Seller with reasonable information, assistance and cooperation in defending the lawsuit or proceeding and (iii) gives Seller exclusive control and sole authority over the defense and settlement of such claim.

JOINT MATERIALS: The Parties agree that all marketing materials developed in connection with the services performed by Buyer/Seller Agent hereunder shall be the joint property of Buyer/Seller Agent and Seller and neither party shall use such materials after the Exclusive Sale Period without the prior written approval of the other Party.

RELATIONSHIP OF THE PARTIES; REPORTING OF INCOME. Buyer/Seller Agent 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. The Parties agree that Buyer/Seller Agent shall include all compensation it receives hereunder in its own books or account for inclusion on its own applicable tax return, that Buyer/Seller Agent shall be responsible for payment of all income and employment taxes thereon, and that such compensation will not be subject to any offset, employee payroll taxes or other deduction.

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 Section 12 shall not apply to disclosures made by a Party to its agents, employees and advisors to whom such disclosure is necessary in order to perform pursuant to this Agreement.

ATTORNEY’S FEES AND COSTS: In connection with any litigation arising out of this Agreement, the prevailing party, whether Seller or Buyer/Seller Agent, 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.
DISCLOSURES: Seller and Buyer/Seller Agent specifically acknowledge and understand that if either Seller or Buyer/Seller Agent knows of facts materially affecting the value of the Name(s), whether said facts are readily observable or not, Seller or Buyer/Seller Agent, as applicable, shall disclose these facts to the other Party.

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.

GOVERNING LAW: This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without respect to its conflict of laws provisions. Venue for any litigation arising under, or in connection with, this Agreement shall be in Miami-Dade County, Florida.

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.
Headings For Convenience: 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.
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

COUNTERPARTS: 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.

[remainder of page intentionally blank]

IN WITNESS WHEREOF, the undersigned have set their hands and seals on the date first written above.

SELLER:
By:
Name:
Title:
Moniker Account #:
Email:
Phone:
Fax:

Address:
BUYER/SELLER AGENT:
DOMAINSYSTEMS, INC.
By:
Name: Monte Cahn
Title President/CEO
Email: monte@moniker.com
Phone: 954-984-8445
Fax: 954-969-9155
Address: 20 SW 27th Ave.
Pompano Beach, FL 33069


ADDENDUM TO EXCLUSIVE RIGHT TO SELL AGREEMENT
Declaration / DESCRIPTION Of Assets (if applicable)

My Moniker.com Account Number is:____________


THIS IS AN ADDENDUM TO EXCLUSIVE RIGHT TO SELL AGREEMENT (this “Agreement”) is entered into this ___ day of _______, 2008, by and between _____________________ (hereinafter referred to as “Seller”), and DomainSystems, Inc, a Florida corporation (hereinafter referred to as “Buyer/Seller Agent”) (Seller and Buyer/Seller Agent each a “Party” and may be collectively referred to as the “Parties”) whereas, it is the desire of Seller to grant to Buyer/Seller Agent the exclusive right and authority to sell the Internet domain names, assets, or web sites listed hereto of which additional items may be added. This ADDENDUM represents the declaration and description of assets as described hereto.

1.Assets – Tangible:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________
1. Assets – Intangible:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________

2. The liens and or encumbrances and or options to purchase Assets described above consist of:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________

3. Please list all of the owners of the Assets described above?

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________

4. Documents of title ownership / leans, such as a UCC filing, are filed in the facility listed below on the date listed below:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________

5. If patents are listed above, can you provide due diligence they do not infringe on any other parties rights?

Yes - __________________________________________________ ______________________
No - __________________________________________________ ______________________

6. Please describe any current or pending litigation, decrees, judicial proceedings or judgments of courts related to the entities, corporate or personal, having interest in the Assets listed above:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
7.How many personnel, doing what, are required to support the Assets listed above on a weekly basis:

A. __________________________________________________ ______________________
B. __________________________________________________ ______________________
C. __________________________________________________ ______________________
D. __________________________________________________ ______________________

8.If / when the Assets above are sold, how would you foresee the transition process and what if any of the above personnel would contribute to the transition:

__________________________________________________ ____________________________

__________________________________________________ ____________________________

__________________________________________________ ____________________________


9.The monthly gross revenue produced by the Assets above consist of an average of

$_______________ .

10.The monthly net revenue produced by the Assets above consist of an average of

$_______________ .

11.The revenue amounts provided above are verified specifically by *********************_____________________________ ________________________________, yet it should be

known that: __________________________________________________ _________________.

12.It is also important to know that: ________________________________________________

__________________________________________________ ____________________________

__________________________________________________ ____________________________

Additional descriptions of items above and supporting documents may be added to this Addendum and become one and part of the whole.

This document is completed by one of the owners representing all owners of the Assets described above and the information provided is true and accurate to the best of my ability.

As owner this is submitted by:

Signed: __________________________________
Title: ____________________________________
Printed Name: ____________________________
Company: _______________________________
Date: ___________________________________

.jd.

Dang did you really have to copy paste the whole thing.... Most people know about the agreement.. Yet monikers auctions are still top of the line.

pixelpadre

Yup....but I used RED for guys like you with A.D.D.

Jake

And for guys like me
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

That is pretty crazy...

Jake

__________________
Dotster Coupon Codes
Dot Jake | Domaining Blog
Smokers Lungs
Smokers Lungs Pictures

TestCase

Yep! As much as I'd like to submit a few names to some of the Moniker auctions, every time I read their contract it just scares the living daylights out of me and I crawl back in to bed and pulls the covers over my head...

I'm one of the aforementioned A.D.D. types that will forget in a second that I just signed my life away (plus the next 3 incarnations...) just to sell a few domains -- and then watch it come back to bite me in the butt a few months later!

Never leave the bed, never leave the bed, never lea....

stub

You should have underlined them for the colorblind

Red Rock

LOL

ssamriga

nothing new...

__________________
SnowyRange.com 16 years old PR3 GEO name with traffic
My domains for sale: DNFit.com - Domain Names that Fit Your Business

Broker

Someone knows how to write a contract.

-REECE-

Thread stickied.

That's the most outrageous thing I've ever seen (right up their with NetSol) and deserves to be shamed.

MattheP

Noob question:
What do u see as a biggest problem in this contract? I dont like the 120 days period.

"two (2) years following the termination of this Agreement, Seller shall not, directly or indirectly (...)" looks nasty also, but i dont understand this

__________________
(:

pixelpadre

How about the part that you have a 15 day window to remember to send them a letter indicating your desire to not renew or its automatically renewed for 120 days and 2 years. Opt out is wrong. Should be opt in.

james2002

Yes, it is just radiculous terms and conditions. Sedo is not like that , I think.

Pred

i've gone from the biggest Moniker fan to really scratching my head recently on a number of things.
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

i knew about the auction debarcle conditions for some time and do not bother.

20% is taking the proverbial p*ss on its own anyway

keep talking about virtual real estate , but real estate brokers /e state agensts want 1% - 2%

dont expect that but 10% is more than enough and the conditions are ludicrous.

add that to the paypal fees, unauthorised by paypal and a host of other things and its not looking great

as a safe registar with good pricing and good staff they get big thumbs up, but the takeover from oversee.net will only bring bad things imo
the family feel will go

you don't make 200 million a year or before he was 30 without being totally ruthless. we saw that with snapnames and the stunts they have pulled

my 2 pence
if we dont as domainers speak out when we think things are wrong, nothing will change. simple. bite the hand that feeds you and people vote with feet. simple

Broker

If everyone would just park their domains with a "This domain is for sale by owner:" contact email, they all "monikers etc" would loose bigtime. Use escrow.com or related service and save yourself the commission fees. IMHO, these companies should be paying domainers with "highly profitable domains" a small fee to list on their sites for a chance at their big commissions. We work hard, they should too. Now, back to reality.

copper

I had few domains wanted to list at Moniker auctions, but, those terms stopped me. I don't really care too much about 20% fee since I can add those into reserved price.

But, terms are real bad. It's like Moniker saying "You won't let us sell your domains by setting reserve too high and we are going to punish you for LONG LONG time!".

__________________
30 Wordpress How-To Videos! - 50% off Limited Time Offer

nstalk

Moniker definitely protects themselves as much as possible with their carefully worded contract. It fully protects them with no regard for the customer. Too bad, because I have really grown to like them in their other domain businesses.
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

The parts of that contract I object to most is "authority to sell the Name(s) for one hundred and twenty (120) calendar days from the date of submitting", "or sixty (60) days from the conclusion of any auction or private sale taking place after the submission", and especially this part "In the event that Seller sells or markets the Names directly to a buyer or through any person or entity other than Buyer/Seller Agent during the term of this Agreement, Buyer/Seller Agent shall be entitled to receive the Fee (as hereinafter defined)".

Like myself, most domainers probably have their names listed for sale in many different places and that means if I sell one any place else OR EVEN MARKET THE NAME FOR SALE, I must still pay Moniker their fees of almost 20%....that really sucks imho. However, I really don't believe that part about "marketing the name" would be upheld in court.

equity78

The contract is over the top, 20 % is a joke. Then there is the thing that most people submitting domains to Moniker for the auction also have their domains listed at SEDO and Afternic. So with Moniker having exclusive for 120 days is everyone going in and deleting from SEDO and Afternic ? or do you pay SEDO 10 % and Moniker 20 % because it sold at SEDO and Moniker had an exclusive. If you use SEDO and Afternic IMO I would skip the outrageous contract Moniker offering. Only exception IMO would be if you had one great domain you thought would benefit from the exposure of a TRAFFIC live auction. 30 domains in the silent auction is not of a benefit. Again IMO

__________________
Congrats and Thank you to RJ

Protect your brand,secure your .sucks today

PowerUp

LOL, then these people would keep clicking on these words thinking they are hyperlinks.

bfluid

20% is a bit high imo.

Since we are dealing with virtual Real Estate I thought I would shed some light on Real Estate auctions.

In the real estate auction arena the auction firm usually receives an additional 10% from the purchaser and the and the seller pays a fee of $5,000-$25,000 depending on the worth of the property.

__________________
Have Questions Concerning Domaining? I'm Here to Help! :)

pixelpadre

There is definetly a bubble burst in the future for sedo, moniker, afternic auction sites. Open source software is readily available for online auctions of domain names and its free, or very cheap.

Anyone can now open up for business selling domains. Sedo never did anything for me and Im sure Moniker wouldnt do anymore either. Leaches, parisites and other predatory animals and birds will be left only to pick at bones if they aren't careful.

Overhead for an operation like this is relatively low. There is no need for greed.

We are all interested in paying a fair commission to facilitate a deal.

As a realtor I have to spend 500-1000 dollars in advertising in order to get 3% commission. Thats not even adding in my time and gas and dues and insurance and educational courses and electronic gadgets. AND...if I dont sell it I'm still out the $500-1000 in advertising. I don't see them (auction sites) risking any cash on the line on my behalf.
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

Before too much longer their bubble machine will be pumping out fa*ts instead of bubbles.

hawkeye

Now you done it pixelpadre, you've ruined it for them. They really didn't/don't expect people to actually read that contract. They just want domainers to be excited to have their names be accepted for auction, and not read what they are signing. That's why it's so long!! By making and having so many restrictions etc., they are holding unwitting domainers and their names hostage, so they can squeeze every cent out of someone elses domains. Don't be surprised if they actually put together a division to track these names, too. I agree, the addition of Oversee.net will only bring corporate greed with legal loopholes, to dupe the unsuspecting and uninformed domainers new and old, and will eventually kill Moniker as we know it today. Sad.

__________________

GeoOwners

I'm confused about the selling the name to moniker and they sell it to the buyer...but I'm sure you dont get the money the day you "give" the name to them...

the "auto-renew" is the worst part imo...that not needed since the seller is really concentrating on THAT exact auction date or dates and when that auction closes the contract should be expired.


.

__________________
MortgageandLoan.com

Rick Latona

There are other options.

__________________
Join the biggest mailing list in the domain business to find out about great names for sale at or below wholesale prices at www.ricklatona.com.

Borrow money on your domains through DigiPawn!

pixelpadre

You got balz...I got to give you that. Great color scheme. Your site is still in beta and will be for some time. Until you get it running you better drop your commission to 5%.
????: NamePros.com http://www.namepros.com/showthread.php?t=449617

I dont see a single domain listed for sale on your site.