Stupid situation with Moniker. Please advice

[DNP]

Hi guys,

I have listed and sold xx,xxx domain @ Sedo that hasn't been paid for 4 weeks after the end of the auction.

I have submitted it to Moniker Live auction and surprisingly next day or so Sedo received the full payment for the domain and transaction was completed there.

Moniker doesn't want to hear anything and claiming their 15% now with CCing their Legal Department.

Did anyone came across the situation like that or know the work around? How serious are they with those 4-5k comission fees.

Thx
-DNP-

 

[domain newbie]

Moniker still owes me domain reg money

 

[Brady]

Oops, disregard the PM I just sent you (I think about this name)... I didn't see this post until I sent you the message

 

[DNP]

Oops, disregard the PM I just sent you (I think about this name)... I didn't see this post until I sent you the message

ok. PM replied anyway. Thx, bud.

 

[BLazeD]

Hmm, that's strange mate

So I take it you signed all the docs that Moniker sent you?

It's pretty clear they had absolutely NO INVOLVEMENT with the sale and in fact I don't see how they can get anything from you.

 

[Creature]

That company are totally inflexible sometimes. They once insisted I pay the 15% for a name that I hadn't even submitted to their auction.

 

[Theo]

When you submitted the domain to Moniker's live auction, you had a prior pending contract with Sedo. In other words, the domain was not yours to delete, dispose of, resell or list at another venue until the Sedo contract was complete (either by means of receiving payment or by Sedo stating it's null and void). The problem is that Moniker's contract contains specific language that a) puts the burden on you to confirm you are the rightful owner of the domain at the time of the listing b) the domain is listed exclusively on Moniker c) there is a clause about 120 days of contractual agreement (that's also automatically extended unless it's ended in writing). During these 120 days, any sale of such a domain automatically entitles Moniker to their 15% fee, as if they performed the sale. While this practice is draconian, it's still part of the contract.

 

[theinvestor]

after 4 weeks of non payment you should have emailed sedo and made sure to cancel. They do that apparently after 5 days.

 

[DNP]

after 4 weeks of non payment you should have emailed sedo and made sure to cancel. They do that apparently after 5 days.

3 emails have been sent with no reply. I think I am not the only one here who is not getting prompt reply from Sedo office...

 

[BLazeD]

When you submitted the domain to Moniker's live auction, you had a prior pending contract with Sedo. In other words, the domain was not yours to delete, dispose of, resell or list at another venue until the Sedo contract was complete (either by means of receiving payment or by Sedo stating it's null and void). The problem is that Moniker's contract contains specific language that a) puts the burden on you to confirm you are the rightful owner of the domain at the time of the listing b) the domain is listed exclusively on Moniker c) there is a clause about 120 days of contractual agreement (that's also automatically extended unless it's ended in writing). During these 120 days, any sale of such a domain automatically entitles Moniker to their 15% fee, as if they performed the sale. While this practice is draconian, it's still part of the contract.

So essentially the contract is invalid since legally he didn't have the right to put it up for sale with Moniker etc. I guess Moniker could then sue him for misrepresentation etc, but then what would damages be? Zero, cause they haven't done jack shit to sell the domain yet. You were essentially holding the domain on trust for the Sedo buyer all this time.

How long from when you signed the Moniker docs did the Sedo buyer send the money and did you inform Moniker they had?

From a PR standpoint Moniker also need to back up, everyone already knows how overbearing their sales contracts are.

 

[Theo]

You can take the "I don't give jack shit" approach or we can discuss the legal obligations of a contract. I am not a lawyer, I simply took notice of the timeline of events. There are many ways to tweak and weave a contract but once it's signed it becomes a legal document.

 

[BLazeD]

I am discussing the law, his contract with Moniker has a major defect - he had no right to enter into it.

 

[Theo]

If you and I sign a contract while my sale is pending at Sedo, am I simply wasting your time? The problem with contracts is that they require - by signing them - that the terms set forth are valid e.g. I can't list domains I don't own. However, common sense and the law are two distinct beasts. This is clearly a matter that requires legal advice.

 

[BLazeD]

They're called warranties and representations and AFAIK when you breach them the other party gets damages - so damages for wasting Moniker's time.

Anyway, as you say I reckon finding a good contract lawyer would be best - should be fairly straight forward.

 

[onlinetv]

The problem is that Moniker's contract contains specific language that a) puts the burden on you to confirm you are the rightful owner of the domain at the time of the listing b) the domain is listed exclusively on Moniker c) there is a clause about 120 days of contractual agreement (that's also automatically extended unless it's ended in writing). During these 120 days, any sale of such a domain automatically entitles Moniker to their 15% fee, as if they performed the sale. While this practice is draconian, it's still part of the contract.

There is also a clause about non-disclosure of terms in the agreement, but seeing that it is exposed here I think I can comment also. Thank you Acroplex for pointing out some very interesting things in that contract. I have taken the liberty of bolding some very important parts.

It is my understanding that Monty views the contract as starting on submission to be "considered" and never ends. When you see this automatically extended into perpetuity I think you can see the issues that will arise above and beyond the one experienced by our Italian.net friend.

I have argued with Monty that the contract starts upon authorization for the auction and not on submission of complete portfolios for consideration, but he has that auto-renew and can reach into pockets years later if he wants to try. I think people should be aware of the automatic renewal of their proprietary rights forever and the time when that contract actually starts for any particular domain.

How many people understand they must send them in writing (not email) that notice after each auction in order to even list anywhere else?

I would say your word "draconian" is fitting and each should be careful to read that contract many times over.

 

[MacyT.]

You say it was accepted into the auction, right? So, there was no offer or transaction in process...meaning, it would really be in Moniker's best interest to let it go. It's not worthwhile to intimidate or harass you into paying them a 15% transaction fee they did not earn.

Contract or not...if you (or lawyer) can prove you didn't understand all terms, than they don't necessarily have a case.

They didn't piss off or waste another buyer's time since no one bid - which should be more of their concern than pocketing a couple of grand. 1) If they're smart then they'll recognize that you made an unintentional mistake (one you won't do again), 2) You've been around and have a valuable portfolio that they can continue to profit from in future auctions if they're smart and let this particular situation go. In the end, they could gain a lot more than 4 or 5K and bad blood.

 

[sashas]

I think it'll be the best for Moniker to let go of the 15% fee. Surely Moniker can't be so stupid to insist on getting the 15% fee only to miss out on several much larger 15% fees in the future, considering the kind of names DNP has.

Why don't you simply tell them that you will not be selling or registering names through them in the future if they continue to act like assholes? It would be in Moniker's best interest to keep you as a customer in the future too with the quality names you sell regularly...

 

[Yofie]

After 10 days the Sedo sale is considered Void. So you did have the right to submit the domain to Moniker auction.

Moniker will stand behind the 15% fee, so you might as well make them work for it! Decline the payment at Sedo since the payment was made After the 10 day window and let the domain go to auction via Moniker Live Auction IMO.

 

[Theo]

Decline the payment at Sedo since the payment was made After the 10 day window

That equals to opening up another front with the Sedo legal dpt this time.

 

[A D]

3 emails have been sent with no reply. I think I am not the only one here who is not getting prompt reply from Sedo office...

Funny, I just emailed Sedo to cancel an auction because I have heard nothing from Sedo or the winner and its been a while.

-=DCG=-