Domain Distribution Affiliate Agreement
This Domain Name Aftermarket Sales Distribution Agreement is made between Fabulous.com Pty Ltd ACN 094 218 443 ("Fabulous.com") and you the Affiliate ("Affiliate")
Collectively referred to as the "Parties".
A. Fabulous.com maintains and operates a centralized database of internet domain names made available for sale by their respective owners, as well as the collection and analysis of domain name metadata, domain name price guidance, domain name ownership validation and other associated services.
B. Affiliate operates an online website, including the provision of domain name listing and classified services, and other associated domain sales and management services.
C. Affiliate wishes to access the Domain Inventory information for the purpose of including the domain name listings contained in the Domain Inventory on the Affiliate's Website.
D. Fabulous.com hereby agrees to provide the Affiliate with access to the Domain Inventory and to provide the Domain Inventory Services to the Affiliate on the terms and conditions contained in this Agreement.
For purposes of this Agreement, capitalized terms shall have the meanings given below:
(i) "Affiliate" means the party identified and described on page 1 of this Agreement as the Affiliate.
(ii) "Associates", in relation to a party to this Agreement, includes a person who has an ownership interest in the relevant party, or an entity that is either a subsidiary corporation, sister corporation or has some other form of ownership in common with the relevant party.
(iii) "Buyer" means a person who purchases one or more of the Owner's Domain(s) through the Domain Listing Services.
(iv) "Fabulous.com" means Fabulous.com Pty Ltd of Level 1, 91 Bridge Street, Fortitude Valley, Queensland. Australia.
(v) "Owner" means the registered owner of one or more internet domain names included in the Domain Inventory from time to time.
(vi) "Owner's Domain(s)" means one or more of the Owner's internet domain names included in the Domain Inventory from time to time.
(i) "Domain Listing" means each of the Owner's Domain(s) included in the Domain Inventory as updated from time to time.
(ii) "Fixed Price Listing" means a Domain Listing whereby the Owner has made an offer to sell the Owner's Domain(s) that are the subject of the Fixed Price Listing to potential Buyers at a predetermined Fixed Price as nominated by the Owner;
(i) "Fixed Price" means the predetermined price nominated by the Owner at which the Affiliate shall display or advertise for sale on the Affiliate's Website.
(ii) "Contract Price" means the Fixed Price at which the Owner and the Buyer enter into a Domain Sale Contract for the Owner's Domain(s) pursuant to this Agreement.
(i) "Owner's Offer" means an offer made by the Owner to sell the Owner's Domain(s) that are the subject of a Fixed Price Listing.
Commissions and Remitted Amount
(i) "Base Commission" means that part of the Commission Fee calculated as a percentage (%) of the Fixed Price for a Fixed Price Listing.
(ii) "Commission Fee" means the amount payable to the Affiliate under Clause 9 for the lead generation upon Completion of the Sale of one or more of the Owner's Domain(s) facilitated by Fabulous.com through the use of the Domain Listing Services.
(i) "Affiliate's Website" means one or more of Affiliate's websites (and all sub-sites, replacement sites or successor sites as notified by the Affiliate from time to time).
(ii) "Domain Inventory" means the database of internet domain names made available for sale by the Owners from time to time as maintained and operated by Fabulous.com.
(iii) "Domain Inventory Services" means the maintenance and operation of the Domain Inventory database, as well as the collection and analysis of domain name metadata, domain name price guidance, domain name ownership checks, trademark infringement checks and other associated services provided by Fabulous.com.
(iv) "Domain Listing Data" means the data contained in the Domain Inventory database including but not limited to, the identification of the Owner's Domain, the Fixed Price and the Commission Fee percentages (%) for the Owner's Domain(s).
(v) "Domain Listing Services" means the domain name listing and classified services, domain name transfer services, and other associated domain sales services provided by the Affiliate to Fabulous.com.
(vi) "Fabulous.com Website" shall mean the website located at http://www.fabulous.com (and all replacement or successor sites).
(vii) "Lead Generation Services" means the active marketing of the Owner's Domains for the purpose of generating internet traffic comprising of qualified Buyers of the Owner's Domain(s).
(viii) "Payment Processing Services" means managing and processing payment of the Accepted Offer, including receipt of funds from the Buyer by Fabulous.com.
(ix) "Sales Services" means displaying the Owner's Domain(s) for sale on the Affiliate's Website, receiving offers to purchase the Owner's Domains from potential Buyers and forwarding those offers instantly to Fabulous.com.
(i) "Domain Sale Contract" shall means a valid, binding and enforceable contract entered into between the Owner and the Buyer as a result of FabulousDomains.com's website and the terms and conditions contained therein.
2. DOMAIN LISTING DATA FEED
2.1 Fabulous.com shall provide to the Affiliate, an API data feed of the Domain Listing Data contained in the Domain Inventory database, which shall be downloaded by the Affiliate not less than once per week.
2.2 The Affiliate shall update the Domain Inventory that is displayed on the Affiliate's Website or otherwise accessible through the Affiliate's Website as soon as practicable, upon downloading the updated Domain Listing Data.
2.3 The Domain Listing Data shall not be disclosed, redistributed or otherwise made available to any third party.
2.4 Fabulous.com at its sole discretion maintains the right to include or exclude domain names in the Domain Inventory from the Domain Listing Data according to its own internal policies and practices.
3. DOMAIN SALE PROCESS
3.1 Facilitating the sale and purchase of the Owner's Domain(s) through the provision of the Domain Listing Services shall comprise of the following steps:
(i) Lead Generation Services (Affiliate); and
(ii) Sales Services (Fabulous.com).
(iii) Payment Processing Services (Fabulous.com).
3.2 The Affiliate hereby undertakes and agrees to provide all of the Lead Generation Services for the payment of the Commissions Fee in accordance with Clause 9 below.
4. DOMAIN LISTINGS
4.1 Each of the Owner's Domain(s) included in the Domain Inventory as updated from time to time ("Domain Listing") shall be nominated by the Owner as a Fixed Price Listing.
4.2 All prices nominated in the Domain Listings shall be in United States Dollars ($US) unless otherwise expressly stated.
5. FIXED PRICE LISTINGS
5.1 The Owner may elect to list the Owner's Domain(s) as a Fixed Price Listing. In such event, the Owner shall nominate the price for the Owner's Domain(s) that are the subject of the Fixed Price Listing ("Fixed Price").
5.2 Fixed Price Listings shall be clearly displayed or advertised for sale on the Affiliates Website for the Fixed Price.
5.3 Under no circumstances shall the Affiliate display or advertise for sale the Owner's Domain(s) that are the subject of a Fixed Price Listing at a price other than the Fixed Price.
5.4 Subject to a Domain Listing not having been validly withdrawn by the Owner, a Fixed Price Listing shall be deemed to be a valid, binding and irrevocable conditional offer by the Owner to sell the Owner's Domain(s) that are the subject of the Domain Listing for the Fixed Price ("Owner's Offer").
6. COMMUNICATIONS WITH THE PARTIES
6.1 All communications with the Owner regarding the sale of the Owner's Domain(s) shall be made by Fabulous.com, as intermediary, in order to protect the privacy of the Owner and to maintain the existing commercial relationship that Fabulous.com has with the Owner.
7. RELATIONSHIP BETWEEN THE PARTIES
7.1 The Parties acknowledge and agree that the relationship between Fabulous.com and the Affiliate is that of independent contractors, and nothing in this Agreement shall be construed as making either Party or any of its employees an employee, agent or representative of the other Party, except as may be expressly provided in this Agreement.
7.2 The Affiliate acknowledges and agrees that the Affiliate will display or advertise the Owners Domains for sale on the Affiliate's Website, forwarding the Owner's communications in regard to the sale of the Owner's Domains to the Buyer, and Fabulous.com to provide support services.
7.3 Under no circumstances shall the Affiliate or their Associates purchase the Owner's Domain(s) and subsequently resell or attempt to resell the Owner's Domain(s) at a price greater than the Contract Price for a period of thirty (30) days from the date the Owner entered into the Domain Sale Contract.
8. COMPLETION OF DOMAIN SALE CONTRACT
8.1 Completion of a Domain Sale Contract shall be deemed to have occurred ("Completion") when:
(i) Payment of the Contract Price has been made by the Buyer to Fabulous.com; and
(ii) The Owner's Domain(s) have been transferred into a Fabulous.com account under the sole and absolute control of the Buyer.
9. COMMISSION PAYMENTS
9.1 Throughout the Term of this Agreement, Fabulous.com shall pay to the Affiliate a fee for the provision of the Domain Listing Services upon satisfactory Completion of the Sale of the Owner's Domain(s) facilitated by the Affiliate through the use of the Domain Listing Services ("Commission Fee").
9.2. The Commission Fee for the sale of the Owner's Domain(s) that are the subject of a Fixed Price Listing shall be calculated as the base commission percentage (%) as nominated by the Owner (on an individual domain name basis) multiplied by the Fixed Price for the applicable Owner's Domain ("Base Commission").
9.3 The Commission Fee payable to the Affiliate under this Clause 9 will be credited to the Affiliates Fabulous.com account and remitted to the Affiliate fifteen (15) days after end of each calendar month.
9.4 All Affiliate Payments shall be made in U.S. dollars ($US). Fabulous.com takes no responsibility for currency fluctuations as well as any payment processing fees.
9.5 Fabulous.com reserves the right to demand refund and return of any Commission Fee or other amounts payable that Fabulous.com determines, upon reasonable grounds, were derived as a direct or indirect result of the Affiliate breaching of the terms and conditions of this Agreement, until such time as the Affiliate remedies the alleged breach or provides Fabulous.com with a satisfactory explanation for the alleged breach.
9.6 The minimum Commission payable to the Affiliate is 12.5% of the Contract Price for the fixed price listing.
10. CHARGE BACKS AND REFUNDS
10.1 In order to provide additional protection for both the Owner and the Affiliate in the event that the Buyer repudiates payment of the Contract Price for the Owner's Domain(s) the subject of a Domain Sale Contract, whether by cancelling or charging back payment made by credit card, Paypal or otherwise ("Repudiated Contract").
10.2 The Affiliate will be required to pay back to Fabulous.com any commissions it has received for the Repudiated Contract.
11. AUSTRALIAN RESIDENTS - TAXATION OBLIGATIONS
11.1 If the Affiliate is an Australian resident for taxation purposes, then in addition to the Commission Fee payable to the Affiliate under Clause 11 above for the provision of the Domain Listing Services, the Affiliate shall upon providing Fabulous.com with a valid Tax Invoice, also be entitled to charge and collect from Fabulous.com, an amount equal to 10% of the Commission Fee on account of the Goods and Services Tax ("GST") payable by the Affiliate under the A New Tax System (Goods and Aftermarket Sales Services Tax) Act 1999 and the Regulations thereto ("the GST Act")
11.2 If the Buyer is an Australian resident for taxation purposes, then subject to the Owner being registered or required to be registered for GST under the GST Act, then, in addition to the Contract Price payable by the Buyer for the purchase of the Owner's Domains, the Affiliate as the agent for the Owner shall also charge and collect from the Buyer, an amount equal to 10% of the Contract Price on account of the Goods and Services Tax ("GST") payable by the Owner under the GST Act for the supply of the Owner' Domain(s) to the Buyer.
12. TRACKING & REPORTING SALES
12.1 In order to ensure accurate tracking and reporting of data regarding the Sales of the Owner's Domain(s) made by the Affiliate, the Commissions earned by the Affiliate and the amounts payable to the Affiliate will be shown in the Affiliates Fabulous.com account.
13.1 The Domain Inventory, the Domain Listing Data, Domain Inventory Services, and all other services are provided by Fabulous.com to the Affiliate on a non-exclusive basis.
13.2 Fabulous.com reserves the right to provide the Domain Inventory, the Domain Listing Data, the Domain Inventory Services and all other services to selected third parties, notwithstanding such third parties may be an associate of Fabulous.com and/or a competitor of the Affiliate.
14. MARKETING & PUBLICITY
14.1 During the Term of this Agreement, the Affiliate shall use commercially reasonable efforts to market the Owner's Domains to its customers and prospective customers.
15.1 Either Party may terminate this Agreement, with or without cause, thirty (30) days after providing written notice of termination in accordance with Clause 23 below.
15.2 Fabulous.com will have the right to terminate this Agreement immediately if:
(i) Affiliate breaches any term or condition of this Agreement and fails to remedy such breach within ten (10) days after receipt of written notice of the same; or
(ii) Affiliate becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, administration, receivership, liquidation, or composition for the benefit of creditors;
16. EFFECT OF TERMINATION
16.1 Upon the effective date of expiration or termination of this Agreement:
(i) The Affiliate shall within twenty four (24) hours after such expiration or termination, remove all Domain Listings from the Affiliate's Website(s);
(ii) The Parties shall within thirty (30) days the Parties shall return to each other or destroy all Confidential Information received from the other Party in their possession or control and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements.
17. DISCLAIMER OF WARRANTIES
17.1 ALTHOUGH FABULOUS.COM SHALL EXERCISE ALL DUE CARE AND TAKES ALL REASONABLE STEPS TO ENSURE THAT AT ALL APPLICABLE TIMES, THE OWNER COMPLIES WITH THE WARRANTIES AND OBLIGATIONS OF THE OWNER AS CONTAINED IN THE DOMAIN NAME INVENTORY MANAGEMENT AGREEMENT TO BE PROVIDED OR MADE AVAILABLE TO THE AFFILIATE UPON THEIR REQUEST ("INVENTORY MANAGEMENT AGREEMENT"), FABULOUS.COM DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES REGARDING THE OWNER'S DOMAINS OR ANY INFORMATION OR MATERIALS PROVIDED BY THE OWNER TO FABULOUS.COM IN CONNECTION WITH THE SALE OF THE OWNER'S DOMAINS PURSUANT TO THE LISTING AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE OR ANY WARRANTIES AND REPRESENTATIONS CONCERNING OWNERSHIP, ENCUMBRANCES AND/OR TRANSFERABILITY OF THE OWNER'S DOMAINS ("OWNERS WARRANTIES").
17.2 FABULOUS.COM DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES REGARDING THE DOMAIN INVENTORY SERVICES OR ANY MATERIALS PROVIDED BY THE AFFILIATE PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE OR ANY WARRANTIES.
17.3 FABULOUS.COM MAY ELECT TO, BUT SHALL NOT BE OBLIGED TO COMMENCE ENFORCEMENT ACTION AGAINST THE OWNER FOR A BREACH OF THE OWNER'S WARRANTIES. IN THE EVENT THE AFFILIATE SUFFERS LOSS OR DAMAGE AS A RESULT OF A BREACH OF THE OWNERS WARRANTIES, THE AFFILIATE MAY REQUEST FABULOUS.COM TO COMMENCE ENFORCEMENT ACTION AGAINST THE OWNER UNDER THE TERMS OF THE LISTING AGREEMENT FOR AND ON BEHALF OF THE AFFILIATE ON THE CONDITION THAT THE AFFILIATE INDEMNIFY FABULOUS.COM FOR ALL COSTS INCURRED.
18. LIMITATION OF LIABILITY
18.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, NOR TO ANY OF THE OTHER PARTY'S MEMBERS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR SALES OF THE OWNER'S DOMAINS, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
19.1 Each Party (the "Indemnifying Party") shall, at their own expense, indemnify, defend and hold each other, including its stockholders, directors, officers, employees, agents and other representatives (collectively "Party Representatives") harmless from and against any claim, suit, damages, or other liabilities or proceedings (each a "Claim") brought or threatened against the other Party and any of its Party Representatives, to the fullest extent permitted by law, arising out of or in connection with:
(a) any breach by the Indemnifying Party of any term or condition of this Agreement;
(b) the Indemnifying Party's products or services but only to the extent related to or arising in connection with the subject matter of this Agreement;
(c) an assertion that the information, content or other materials or services provided or made available by the Indemnifying Party (other than information, content or other materials or services provided by the Party seeking indemnification), or the use thereof, infringe any copyright or trademark rights or other intellectual property rights of any third party, or are a misappropriation of any third party's trade secret, or contain any libelous, defamatory, disparaging, pornographic or obscene materials; or (d) any content of the Indemnifying Party's website(s) or statements made by such Party (other than information, content or other materials or services provided by the Party seeking indemnification).
20. GOVERNING LAW AND JURISDICTION
20.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF QUEENSLAND, AUSTRALIA. YOU HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF QUEENSLAND, AUSTRALIA AND ALL APPELATE COURTS.
21.1 If any provision of this Agreement is found to be unenforceable it shall be severed from this agreement and the remainder will remain in full force and effect.
22.1 The Parties shall not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, except that this Agreement may be assigned in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets, provided that it notifies such other Party at least fourteen (14) days prior to the effective date of such event. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each Party's successors and permitted assigns.
23. ENTIRE AGREEMENT
23.1 This Agreement constitutes the entire agreement between Fabulous.com and the Affiliate in relation to or in connection with the subject matter contained herein and supersedes all prior agreements between the Parties in this regard.
24.1 The waiver of any breach or default of this Agreement shall not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
25. FORCE MAJEURE
25.1 Neither Party will be in default or otherwise liable for any delay or failure in its performance under this Agreement where such delay or failure arises by reason of an Act of God, or any government or governmental body, acts of war, the elements, strikes or labor disputes, power or system failures, failure of the internet, computer hacking, or other causes beyond the reasonable control of such Party.