Moniker auction terms Outrageous

[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.

EXCLUSIVE RIGHT TO SELL AGREEMENT​

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.

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.

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: [email protected]
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: ___________________________________

 

[verbster]

no one is forcing you to sell through tem.
Nailed it.

The contract may be troubling for some of you. But don't forget you do have
other choices out there, albeit they may not be as "good" as Moniker.

This argument is somewhat valid, but also sort of misses the point. Why should an above-board company need to include such God-awful provisions in a legalese document in the first place? Such extreme demands are beyond the scope of protecting themselves against outside sales during and immediately after the auction. It boils down to an unscrupulous way to exert control over sellers who simply want to auction a domain, nothing more....and are willing to pay Moniker a fair fee to do so.

Instead, it's a sneaky way to manipulate a situation so that they stand to profit from a seller's ignorance of the TOS. And, yes, you can say ignorance is no excuse, but in my mind if the nonsense clauses weren't in the TOS to begin with, if a company like Moniker could be trusted in the first place, there would be no need for scrutinizing their TOS, and the general outrage of most people who really want to use Moniker...who want to trust them, would quickly fade away.

 

[NewWorldArk]

Why should an above-board company need to include such God-awful provisions in a legalese document in the first place? Such extreme demands are beyond the scope of protecting themselves against outside sales during and immediately after the auction. It boils down to an unscrupulous way to exert control over sellers who simply want to auction a domain, nothing more....and are willing to pay Moniker a fair fee to do so.

Instead, it's a sneaky way to manipulate a situation so that they stand to profit from a seller's ignorance of the TOS. And, yes, you can say ignorance is no excuse, but in my mind if the nonsense clauses weren't in the TOS to begin with, if a company like Moniker could be trusted in the first place, there would be no need for scrutinizing their TOS, and the general outrage of most people who really want to use Moniker...who want to trust them, would quickly fade away.

This is Exactly the Point of this Thread.

I myself have never actually used Moniker in the past and therefore have nothing to base the TOS that I recently read with any past TOS that they may have had beforehand.

I had every intention of using their services.

Until I read their Contract.

 

[Dave_Z]

Why should an above-board company need to include such God-awful provisions in a legalese document in the first place?

Why, to protect their arses, of course. But you knew that, right?

Of course, it's one thing to know, it's another to accept. One can always read
or ask questions before jumping in, though, before possibly agreeing to it.

I guess it boils down to how one feels about it, depending on what side of the
fence one is on. This contract, though, isn't necessarily any different from all
the others in terms of...hmm...not sure what's the right word...

Until I read their Contract.

Note that the contract here is for their auction service. If you're going to hold
this "against" Moniker while not considering their registration agreement, then
you might want to read other registrars' as they have similar terms anyway.

 

[DomainPawnshop]

I didn't see any of it that is domainer-friendly.

As a Realtor, I don't contractually tie my Sellers up nearly that tight when I sell the roofs over their heads!

To protect myself against a Seller circumventing a sale, I incorporate a clause in my listing contracts that entitles me to a commission should the property be sold within 90 days after expiration to person/s who viewed the property during my listing period. If I want this clause to be put into effect, I must provide this list of prospects to my Seller via Certified Mail within 5 days after expiration.

In my opinion, entitling a broker to compensation 2 years after a contract expires is absolutely ridiculous.

Exactly. I've been a domain name owner since 1995 and an investor since 1996. It became clear pretty quick that there are only three types of people making money in the world domain names:

(1) people that own good business-oriented domain names;

(2) scammers

(3) people that make money from helping the first two types of people

Of course, type one and three are often a subset of type two.

One good thing is that I do believe people are becoming more sophisticated. And now that click business valuations have all but collapsed, many "domainers" are realizing they were sold a bill of goods.

Unfortunately, as these domainers restructure, the new people drawn in by today's financial despair (and the real success experienced by the owners of good domain names) are likely to be paying some expensive dues as they speed around the learning curve.

I say unfortunately, not just because it extends the "shady and misleading" reputation of the domain name "industry", but also because it makes it much more difficult for investors that actually conduct end user sales to real businesses (as opposed to reselling to each other).

Anyway, yes, I laughed out loud when they sent that contract to me.

But that's just me.

 

[mwzd]

It became clear pretty quick that there are only three types of people making money in the world domain names:
(1) people that own good business-oriented domain names;
(2) scammers
(3) people that make money from helping the first two types of people
Of course, type one and three are often a subset of type two.

So you're saying all people making money in domaining are scammers?

I would say you're more than slightly mistaken.

But then thats just me.

 

[DomainPawnshop]

So you're saying all people making money in domaining are scammers?

Okay... more accurately, MEMBERS of type one and three are often a subset of type two.

 

[gingeman]

I haven't seen a moniker rep active on the forums for a while weeks now... they have come under fire for some accusations of netsol style whois checks recently but nobody came to answer, now this, which is, frankly old news, but still, you'd think they would have something to say.
I sincerely hope the oversee.net takeover won't ruin this superb registrar, but I am sorry to say a few alarm bells are ringing...

 

[Pound]

All I can say is I am glad there is Fabulous for a domain registrar and that the domain auction market is becoming much more competitve, thus giving more options and reducing their monopoly.

 

[Charley]

Forums are by definition a place specifically for comments of all persuasions.

Right, it doesn't give anyone the privlege/power of abuse.

Asking someone to withhold comments because you may not agree with them, and while you express yours, is a bit narrow.

There isn nothing wrong with my comment. Just supporting Monte. How many sales would you have seen had he not been conducting auctions ?

Success doesn't necessarily define character.

Agree with you here.

 

[RogueWriter]

In business in general, contracts are usually negotiated. I am sure that if you have good domain names for sale, you can modify that contract and submit it to them, negotiating for the best deal for yourself.

They may ignore you, but then again, if they want your business, they may be open to negotiation.

But, as part of that negotiation, they would probably require you to keep silent about the process, so others don't reject the contract out of hand.

Think about it, they would obviously want to be involved in high profile auctions, but at the same time, I doubt that someone owning, say, a domain like business dot com would ever consider giving them 20%, that would be silly.

It's not a contract until both sides agree to the listing of terms. So, edit the contract and submit it for their perusal.

 

[Charley]

Think about it, they would obviously want to be involved in high profile auctions, but at the same time, I doubt that someone owning, say, a domain like business dot com would ever consider giving them 20%, that would be silly.

20 % of 350 million. The broker will be a multi millionaire. In this case the commission would be 5 % or less.

 

[oldtimer]

It is one thing for a company to try to protect their ligitimate interest, but it is a different matter when they try to take advantage of their customers by gaining undue control over them specially when it is not necessary for the ligitimate operation of their business. If they are willing to negotiate a contract with you that is fair on an individual basis then why not have that from the start to begin with, everyone would understand if they came up with different commission scales or different time periods for exclusivity of sales depending on the value or the reserve that is determined for the domain, but even then they still don’t have the right to tie you up indefinitely.

And then there is still the matter of not replying to emails when you have questions about the auctions, if they are going to make so much on commissions why not hire a few more people so that they won’t have to ignore their customers emails.

 

[SharonTucci]

The problem is that there is nothing at all reciprocal in their agreements - either on the buying or selling side.

Here are some personal experiences:

1. At the last traffic auction, I purchased 2 domains with someone else. It took 3 1/2 weeks after payment was made for them to just push the domains to us. They had been sitting in their escrow account all that time. It took MULTIPLE emails to get the domains pushed.

2. At the fall Traffic, I had a 2 word generic domain in silent. At Traffic itself, I asked my rep to please add the traffic information and other details which had been submitted along with the domain. No go. I had had 2 prospective end user buyers contact me prior to the auction with interest in buying the domain. I introduced them to a Moniker contact since I was under contract. One did not receive any word back and just commented to me that it was unprofessional and they'd find an alternate domain name. The other had been told he'd need to pay in order to place a bid at silent. The domain went unsold - thankfully because the reserve was well under market value for the domain and a fraction of what either end user would have paid.

It's a shame because they are in such a great position but unless their communication system is improved upon and they actually start to work ON sellers' behalfs, they are going to have problems ahead IMHO.

 

[hawkeye]

If you dont think that they are reconsidering their contract after reading this trhead then you are very nieve.

Maybe yes...maybe not. (more likely)

This thread is the top sticky, started five days ago, has 86 posts, 1800 views, is a pretty strong condemation of their practices and, not one reply of justification or 'thanks for your concerns', or..... anything! Perhaps...... "Another one bites the dust!"???

 

[mcahn]

Just a reminder folks - if any of you have ever auctioned anything through Christie's or Sotheby's, then you would fall off your chair if you think our agreement is that bad. The agreement is pretty standard and covers and protects your interests as well as ours. think of this as a real-estate sale and then this agreement will not look so bad. Exclusivity is common and accepted if we are going to draw thousands of live and online bidders at each of these events. Non Circumvent agreements are also standard so that no buyer goes directly to a seller when we introduced those parties through our efforts - again standard protection...and if you get a sale as a result of our efforts either this year or next, what is the real issue here if we were responsible in any way for that transaction. Auto renewal is also standard on just about anything you sign these days, but we do allow you to strike that clause if you do not want us to keep marketing and selling your domains.

now with more ways to market and sell your domains than any other organization - live, silent, extended, online, snapnames, marketplace, private, and direct corporate domain sales efforts, i would say your best bet is to work with the process. Obviously names have to be good, desirable and reserves set properly to get best results so please work with your Sr. Account Execs here and you should be good to go.

Also - regarding auction processing, it does take time when you deal with multiple buyers and sellers of names, epp codes, and many different registrars. From now on, we are gong to basically require that seller names be transferred to Moniker if they are selected for auction - this will speed up processing by weeks once funds are received in escrow. Snapnames did this at their last auction and it worked well.

regarding commissions, Christies and sotheby's charge 35%. Our commissions will be moving up to 20% very soon as we will be offering more channels to sell domains through our network. This is the same percentage we already charge for our private sales.

submission process will soon be more automated with status of your submission, acceptance verifications and what auction accepted to.

and finally - we have NEVER taken advantage of our customers or this auction process that we brought to the entire industry. although its not been perfect, it has proven that domains are assets, have a market, and it legitimized our industry one more level that was not here prior. Ever sale we make and now that any other auction makes as a result of our creation of the live domain auciton, helps all of you regardless if you participate in our auctions or not. Your assets are growing in value as a result of our efforts....so becare what you are knocking.

we are improving the process and will continue to do so through customer feedback and results.

Thank you for your support.

 

[pixelpadre]

Just a reminder folks - if any of you have ever auctioned anything through Christie's or Sotheby's, then you would fall off your chair if you think our agreement is that bad. The agreement is pretty standard and covers and protects your interests as well as ours. think of this as a real-estate sale and then this agreement will not look so bad. Exclusivity is common and accepted if we are going to draw thousands of live and online bidders at each of these events. Non Circumvent agreements are also standard so that no buyer goes directly to a seller when we introduced those parties through our efforts - again standard protection...and if you get a sale as a result of our efforts either this year or next, what is the real issue here if we were responsible in any way for that transaction. Auto renewal is also standard on just about anything you sign these days, but we do allow you to strike that clause if you do not want us to keep marketing and selling your domains.

now with more ways to market and sell your domains than any other organization - live, silent, extended, online, snapnames, marketplace, private, and direct corporate domain sales efforts, i would say your best bet is to work with the process. Obviously names have to be good, desirable and reserves set properly to get best results so please work with your Sr. Account Execs here and you should be good to go.

I started this post monte after I got a take it or leave it response from one of your guys. And you know who he is since he told you about this thread. I knew that sooner or later you would have to make an appearance here to defend yourself.

As far as 2 years protections goes.....that a deal killer.. I am a realtor and we are lucky to get 90 days. And its rarely enforced.

If someone were to see my domain name and didnt want to pay the reserve today, but 1 year from now, for whatever reason, better cash flow, more necessity, decides hes gonna call me on the phone.....you think you should get a cut? I dont think so dearie. One or two years later would hardly qualify as deal circumvention. Give our pea brains a little more credit than that.

A very small minority may try to beat the system, as they do in real estate, but we are talking a number in the 1-3 percent range, by my best guess. Is your profit margin that fine? I doubt it.

And how about you pay out of your pocket for air time or trade magazines like I do as a REALTOR? Its only fair if you are seeking 15-20% commission. I do it and my commission is only 3% to 6%.

BTW thats very humble of you to compare yourself to Southeby (est. 1744) or Christies (est. 1766). I think I see where you are coming from now.

Steve

P.S. I question weather Florida Statutes would even allow for a 2 year protection after the close of an auction.

 

[dag]

I started this post monte after I got a take it or leave response from one of your guys. And you know who he is since he told you about this thread. I knew that sooner or later you would have to make an appearance here to defend yourself.

No, he found out via my e-mail this morning to my Moniker rep to ask for feedback from someone there. She's among the best and most responsive customer reps I've ever come across in any industry, so I'm predisposed to feeling positive about Moniker.

And for what it's worth, I do believe that Moniker's contract language isn't intended to take advantage of domainers.

 

[pixelpadre]

Here is the text of the last message that I sent to my rep at Moniker after being described as having bad things to say about Moniker.

Its not bad mouthing....if you read everything I had to say you would know
that. I simply made others aware of the terms and conditions.

Everything I had to say was objective, nothing subjective. This is how
issues get resolved in america. People throw it out on the news channel and
things happen really quickly. As long as there is unchecked onerous
behavior by corporations, there will be grassroots movements for change.

I have effected change, with a simple phone call or a short letter to the
right people, all of my life. If we all did this, life would be much better
for all of us. Unfortunately, most people dont want to be bothered with
involving themselves, others believe that they can do nothing. But I
learned at a very young age that a simple frown can cause major changes, for
the good.

If you think that I am the first one to cut and run after viewing your terms
and conditions, you are seriously underestimating your business losses. You
may get 100,000 domains for each auction. Would you rather have 100,000
$2,000 domains or 2,000 $200,000 domains?

The quality of your domains is deteriorating in my humble opinion. And that
is directly attributed to your staggering demands. No intelligent person
would agree to your terms as they currently stand. IN the long run Moniker
is only hurting themselves by devaluing domains as a result of low quality
domain name sales. I reviewed your last t.r.a.f.f.i.c. results and I was
totally unimpressed in what was listed and how much they actually brought
in. I am amazed that people actully attend these conventions for such low
grade domain names. Moniker's best times may be behind them with more and
more competition appearing.

If you expect people to agree to your terms then you better be prepared to
advertise in major magazines and on tv with the risk of no sale......just as
I do with the homes I have to sell as a REALTOR. I think Moniker would
never risk cash outlay on the chance of a sale. Moniker simply wants the
money and lots of it.

If you can't hear what folks are sayin in this thread, then your greed has
simply blinded you.

Steve

 

[verbster]

Why should an above-board company need to include such God-awful provisions in a legalese document in the first place?

Why, to protect their arses, of course. But you knew that, right?

You left out the point of that contextual question: That the provisions go far beyond the reasonable boundaries necessary to cover their ass, which was the whole point of the post... but you knew that, right?

 

[NewWorldArk]

Just a reminder folks - if any of you have ever auctioned anything through Christie's or Sotheby's, then you would fall off your chair if you think our agreement is that bad.

This is comparable to saying "If you think our used cars are bad you should go two car lots down the street, Now those are some REAL CLUNKERS" Is this what your trying to sell to the Domaining Community Monte, or any Person or Business that would like to Use your Very Well Known Live Auction Service?

The agreement is pretty standard and covers and protects your interests as well as ours.

No where in that Contract do I read anything that comes accross as protecting My Interests or the Interest of any Seller for that matter, it only Reads to Me as Protecting the Interest of the Attorney that wrote up the Contract, but then again that's just Me, and evidently there are quite a few others that feel the same way about your contract. I've never used your services prior, but You have a Please sign this contract if you wish to Proceed any further clause on your front door and it certainly doesn't come accross as very welcoming.

regarding commissions, Christies and sotheby's charge 35%. Our commissions will be moving up to 20% very soon as we will be offering more channels to sell domains through our network. This is the same percentage we already charge for our private sales.

Usually when someone charges or expects a service percentage, the seller would actually get a service. Everyone is aware of your Auction Service, but what about Actual Customer Service Monte? No Consistency in your Customer Service if you read other posts other than Dag's Positive Experience with one of your Rep's.

and finally - we have NEVER taken advantage of our customers or this auction process that we brought to the entire industry.

this is your take, your contract however clearly doesn't come accross this way Monte.

it has proven that domains are assets, have a market, and it legitimized our industry one more level that was not here prior.

Even more reason for the Attorney's that write up Contracts such as these, to reach in and legally acquire a piece of it.

And Even more Reason for the Domaining Community and Abroad to Scrutinize any Contracts written up that come accross as outlandish and unrealistic.

If your comparing Domains to Real Estate, and yet there are plenty of Real Estate Agents that are equally Scruntinizing your terms of service do you think we all should be greatful of your Auction Service and just deal with the terms that go along with it?

 

[oldtimer]

Auto renewal is also standard on just about anything you sign these days, but we do allow you to strike that clause if you do not want us to keep marketing and selling your domains.

Please note that I do not want this contract to renew automatically for any domains that I might have submitted to your auctions and unless you change the contract to be fair to all sides involved I will not use your services in the future and I will not consider you a positive influence in the domain industry any longer.

 

[RogueWriter]

I don't see where the comparison between Monicker and Sotheby's/Christies holds up. How about comparing Monicker to a real estate company? Most charge the seller 5%-7%, I believe, and you know what, I'd be willing to bet there is one heck of a lot more effort put into the marketing/selling of a house than a domain name.

 

[Dave_Z]

You left out the point of that contextual question: That the provisions go far beyond the reasonable boundaries necessary to cover their ass, which was the whole point of the post... but you knew that, right?

Well, how does one define "reasonable boundaries" then? Various people have
various definitions or thresholds for such depending on circumstances, but we
both knew that, right? :D

Now, I haven't found occasion to use their auction service just yet. But from
what I've read and learned so far, apparently it's for "very" serious people and
to lessen potential abuse by, say, deadbeat sellers.

Monte already gave his side. Of course, whether people agree with it or not is
up to them, but no one's forced into anything here unless one chooses to do
so.

Just read the print, ask questions, then weigh what you folks know and maybe
believe to make your decision. You've all the time in the world.

 

[dag]

Well, how does one define "reasonable boundaries" then? Various people have
various definitions or thresholds for such depending on circumstances, but we
both knew that, right? :D

Now, I haven't found occasion to use their auction service just yet. But from
what I've read and learned so far, apparently it's for "very" serious people and
to lessen potential abuse by, say, deadbeat sellers.

Monte already gave his side. Of course, whether people agree with it or not is
up to them, but no one's forced into anything here unless one chooses to do
so.

Just read the print, ask questions, then weigh what you folks know and maybe
believe to make your decision. You've all the time in the world.

Well said, and that's the thing -- whatever you may think simply from reading the contract text, have you ever actually heard of anyone getting screwed over by Moniker due directly to this contract? Would the bigtime domainers entrust their domains and their money with Moniker time after time if Moniker was anything less than honorable in their intentions?

I'm not saying to accept it all blindly based on that alone either, but unless you've heard of abuse of this contract specifically, you need to weigh it all in your reactions.

 

[pixelpadre]

Well said, and that's the thing -- whatever you may think simply from reading the contract text, have you ever actually heard of anyone getting screwed over by Moniker due directly to this contract? Would the bigtime domainers entrust their domains and their money with Moniker time after time if Moniker was anything less than honorable in their intentions?

I'm not saying to accept it all blindly based on that alone either, but unless you've heard of abuse of this contract specifically, you need to weigh it all in your reactions.

"Bigtime?"

Have you even looked at their last auction results?

http://marketplacepro.moniker.com/auction/events/188/results.html

I don't see where the comparison between Monicker and Sotheby's/Christies holds up. How about comparing Monicker to a real estate company? Most charge the seller 5%-7%, I believe, and you know what, I'd be willing to bet there is one heck of a lot more effort put into the marketing/selling of a house than a domain name.

I guess I should use less sarcasm............