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Domain Inventory Management Agreement

1. INTRODUCTION

1.1. This Domain Inventory Management Agreement ("Agreement") governs the terms and conditions on which:

(a) Fabulous.com Pty Ltd (“Fabulous.com”) agrees to provide you ("the Owner") with certain domain name inventory management and domain name distribution services, as well as the collection and analysis of domain name metadata, domain name price guidance, domain name ownership validation, trademark infringement checks and other associated services described in this Agreement (“Domain Inventory Services”); and

(b) Selected third parties operating online domain name trading platforms with whom Fabulous.com have a separate commercial arrangement (“Affiliates”) agree to provide you ("the Owner") with domain name listing and classified services, domain name transfer services, payment processing services, escrow services and other associated domain sales services (“Domain Listing Services”)

1.2. By using the Domain Inventory Services, you, the Owner hereby authorize Fabulous.com to include the Owner’s Domain(s) in the Domain Inventory to be distributed to the Affiliates for the purposes of enabling the Affiliates to provide you, the Owner with the Domain Listing Services in consideration for payment of the fees and charges described in this Agreement.

1.3. The Owner hereby also agrees to be bound by any other rules, regulations or policies regarding the use of the Domain Inventory Services and/or the Domain Listing Services, which are posted on the Fabulous.com Website. All such rules regulations or policies shall be binding on you and shall have the same effect as the terms of this Agreement and shall be incorporated into this Agreement by reference and may be subject to change by Fabulous.com without prior notice and in its sole discretion.

1.4. Fabulous.com reserves the right to amend the terms and conditions contained in this Agreement at any time by posting the amended Agreement in full, to the Website without further notice to you, with any such amended Agreement being effective immediately upon posting.

1.5. By using the Domain Inventory Services, the Owner acknowledges that they have read, understood, and agreed to be bound by the terms and conditions of this Agreement (as amended from time to time), as well as any additional rules or policies that are published on the Fabulous.com Website from time to time.

1.6. The Owner acknowledges and agrees that Fabulous.com may in its sole and absolute discretion, suspend, cancel, or modify the Domain Inventory Services or the Owner’s use of the Services at any time without notice to the Seller.

2. SUBSTANTIVE PROVISIONS

2.1. DEFINITIONS

(a) For purposes of this Agreement, capitalized terms shall have the meanings given below:

2.2. Participants

(a) “Affiliate(s)” means those third parties with whom Fabulous.com has a separate commercial arrangement whereby Fabulous.com has agreed to provide the Domain Inventory to the Affiliate in consideration for the Affiliate providing the Domain Listing Services to the Owner.

(b) “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, or an entity that has a contractual relationship with the relevant party.

(c) “Buyer” means a person who purchases one or more of the Owner’s Domain(s) through the Domain Listing Services.

(d) “Fabulous.com” means Fabulous.com Pty Ltd of Level 10, 243 Edward Street, Brisbane, Queensland. Australia.

(e) “Owner” means the party nominated as the Owner above, being the registered owner of one or more Internet domain names included in the Domain Inventory from time to time.

(f) “Owner’s Domain(s)” means one or more of the Owner’s Internet domain names included in the Domain Inventory from time to time.

2.3. Listing Definitions

(a) “Domain Listing” means each of the Owner’s Domain(s) included in the Domain Inventory as updated from time to time.

(b) “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;

(c) “Negotiable Price Listing” means a Domain Listing whereby the Owner has made an invitation to potential Buyers to submit offers to purchase the Owner’s Domain(s) that are the subject of the Negotiable Listing with the Negotiable Price displayed to provide potential Buyers with some price guidance as to the offers the Owner may consider.

(d) “Make Offer Listing” means a Domain Listing whereby the Owner has made an invitation to potential Buyers to submit offers to purchase the Owner’s Domain(s) that are the subject of the Make Offer Listing, which may or may not be displayed with a Offer Above Price to indicate to potential Buyers the minimum price the Owner is willing to consider.

2.4. Price Definitions

(a) “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, the Owner’s Domain(s) that are the subject of a Fixed Price Listing.

(b) “Negotiable Price” means the predetermined sales price nominated by the Owner for the Owner’s Domain(s) which are the subject of a Negotiable Price Listing. The Negotiable Price shall be displayed on the Affiliate’s Website in conjunction with a Negotiable Price Listing for the Owner’s Domain.

(c) “Waterline Price” means the predetermined minimum acceptable price nominated by the Owner for the Owner’s Domain(s) which are the subject of a Negotiable Price Listing, whereby all Buyer’s Offers with an Offer Price above the Waterline Price may be accepted by the Affiliate on the Owner’s behalf without requiring the Buyers Offer to be submitted to the Owner for their consideration.

(d) “Rejection Price” means the predetermined minimum price nominated by the Owner for the Owner’s Domain(s) that are the subject of a Negotiable Price Listing, whereby all Buyer’s Offers above the Rejection Price are submitted to the Owner for their consideration.

(e) "Offers Above Price” means the predetermined minimum price nominated by the Owner for the Owner’s Domain(s) which are the subject of a Make Offer Listing, whereby all Buyer’s Offers above the Offers Above Price are submitted to the Owner for their consideration.

(f) “Offer Price” in relation to the Buyer’s Offer means the price the Buyer is willing to pay to purchase the Owner’s Domain(s) that are the subject of a Negotiable Listing; or in relation to the Owner’s Counter-Offer means the price the Owner is willing to accept to sell the Owner’s Domain(s) that are the subject of a Negotiable Listing.

(g) “Agreed Price” means the Offer Price agreed to between the Buyer and Owner (or the Affiliate on the Owner’s behalf) for the sale of the Owner’s Domain(s) that are the subject of a Negotiable Listing.

(h) “Contract Price” means the price at which the Owner and the Buyer enter into a Domain Sale Contract for the Owner’s Domain(s) pursuant to this Agreement, being either the Fixed Price, the Negotiable Price or the Agreed Price (as applicable).

2.5. Offer Definitions

(a) “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 or a Negotiable Price Listing.

(b) “Buyer’s Offer” means an offer submitted by the Buyer to the Owner (or the Affiliate on the Owner’s behalf) for the Owner’s Domain(s) that are the subject of a Negotiable Listing.

(c) “Rejected Offer” means a Buyer’s Offer that is not accepted by the Owner.

(d) “Accepted Offer” means an Owner’s Offer that is accepted by the Buyer, a Buyer’s Offer that is accepted by the Owner or a Counter-Offer made by either the Owner or the Buyer that is accepted by the other party.

(e) “Counter Offer” means an offer submitted by the Owner (or the Affiliate on the Owner’s behalf) to the Buyer in response to a Rejected Offer.

2.6. Commissions and Remitted Amount

(a) “Base Commission” means that part of the Commission Fee calculated as a percentage (%) of the Fixed Price for a Fixed Price Listing or the Waterline Price for a Negotiable Listing (as applicable).

(b) “Bonus Commission” means that part of the Commission Fee calculated as a percentage (%) of the amount by which the Contract Price exceeds the Waterline Price for a Negotiable Listing.

(c) “Commission Fees” means the amount payable to Fabulous.com and/or the Affiliate under Clause 15.

(d) “Remitted Amount” means the balance of the Contract Price that the Affiliate is required to remit to Fabulous.com after deducting the Commission Fees payable to the Affiliate under Clause 15.

2.7. Services

(a) 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) via which the Affiliate(s) provide the Domain Listing Services.

(b) “Domain Inventory” means the database of Internet domain names made available for sale by Owners from time to time as maintained and operated by Fabulous.com.

(c) “Domain Inventory Services” means the maintenance and operation of the Domain Inventory database, the distribution of the Domain Listings to the Affiliates, as well as the collection and analysis of domain name metadata, domain name price guidance, domain name ownership validation, trademark infringement checks and other associated services provided by Fabulous.com.

(d) “Domain Listing Data” means the data contained in the Domain Inventory database including but not limited to, the identification of the Owner’s Domain(s), the Fixed Price, Waterline Price, Rejection Price, Negotiable Price and the Commission Fee percentages (%) for the Owner’s Domain(s).

(e) “Domain Listing Services” means the domain name listing and classified services and other associated domain sales services provided by the Affiliate comprising some or all of the following, Lead Generation Services; Financial Clearing House Services and Sales Agent Services.

(f) "Fabulous.com Website" shall mean the website located at http://www.fabulous.com (and all replacement or successor sites).

(g) “Lead Generation Services” means the active marketing of the Owner’s Domains for the purpose of generating Internet traffic comprising qualified Buyers of the Owner’s Domain(s).

(h) “Financial Clearing House Services” means the payment processing services, escrow services, domain name registration transfer services and other associated services provided by Fabulous.com and/or the Affiliate.

(i) “Sales Agent 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, processing orders from Buyers to purchase the Owner’s Domain(s), facilitating and assisting with the transfer of ownership of the Owner’s Domain(s) to the Buyer, and providing all necessary customer support.

2.8. Other Terms

(a) “Domain Sale Contract” shall means a valid, binding and enforceable contract entered into between the Owner and the Buyer as a result of using the Affiliate’s Domain Listing Service, for the sale of one or more of the Owner’s Domain(s) for the Contract Price and otherwise on the terms and conditions notified by the Affiliate.

(b) API (Application Programming Interface) means the interface that the Fabulous.com application provides in order to allow requests for services to be made of it by other computer programs, and/or to allow data to be exchanged between them.

3. DOMAIN INVENTORY SERVICES

3.1. Through the provision of the Domain Inventory Services, Fabulous.com offers the Owner the facility to multi-list the Owner’s Domain(s) for sale on Affiliate’s Website, while being centrally administered via the Owner’s online account interface on the Fabulous.com Website (“Owner’s Account”).

3.2. In order for the Owner to use the Domain Inventory Services, the Owner needs to provide to Fabulous.com, the applicable Domain Listing Data for each of the Owner’s Domain(s) to be included in the Domain Inventory, by inputting the required data into the Owner’s Account.

3.3. Subject to the Owner’s Domain(s) satisfying the listing criteria nominated by the Affiliate, the Owner’s Domain(s) shall be made available by Fabulous.com to the Affiliate for the purposes of advertising the Owner’s Domain(s) for sale on the Affiliate’s Website(s).

3.4. The Owner’s Domain(s) may, at the sole and absolute discretion of the Affiliate(s), be prominently displayed for sale on the Affiliate’s Website for immediate viewing by prospective Buyers. The Owner’s Domain(s) may be sorted and displayed on the Affiliate’s Website in any manner determined by the Affiliate.

3.5. The Affiliate may also, in their sole and absolute discretion, enable prospective Buyers to enter selected search terms into a search box facility on the Affiliate(s) Websites, using Fabulous.com’s search technology to locate those domain names in the Domain Inventory that are relevant to the Buyer’s search query (“Domain Search”).

3.6. Upon a Domain Search being conducted, each of the domain names in the Domain Inventory that are relevant to the Domain Search, based on Fabulous.com’s proprietary search algorithm and the listing criteria nominated by the Affiliate, shall be displayed for sale on the Affiliate’s Website.

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 either of the following:

(a) A “Fixed Price Listing”;

(b) A “Negotiable Listing”; or

(c) A “Make Offer 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 Affiliate’s 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. In the event that the Owner’s Domain(s) are for whatever reason, displayed or advertised for sale by the Affiliate at the Fixed Price but are sold for a price below the Fixed Price, the Remitted Amount calculated under Clause 14.4 shall be the amount calculated as if the Owner’s Domain had been sold for the Fixed Price (ie. the discount shall be accounted for as a reduction of the Commission Fee otherwise payable to the Affiliate under Clause 15).

5.5. Subject to the Fixed Price Listing Domain Listing not having been validly withdrawn by the Owner, the 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”).

5.6. An Owner’s Offer shall become unconditional after the Owner’s Domain(s) have been placed on hold by Fabulous.com in accordance with Clause 11 below (“Domain Hold”) and removed from the Domain Inventory.

5.7. Upon an Owner’s Offer being accepted by the Buyer in accordance with the procedure described on the Affiliate’s Website (“Accepted Offer”), the Affiliate shall immediately notify Fabulous.com of the Accepted Offer and request Fabulous.com to place the Owner’s Domain(s) on hold in accordance with Clause 11 below.

5.8. Upon the Affiliate receiving confirmation from Fabulous.com that:

(a) The Owner’s Domain(s) have not been validly withdrawn from sale by the Owner and that the Owner’s Domain(s) are otherwise available for sale; and

(b) That the Owner’s Domain(s) have been placed on Domain Hold; and

(c) The Buyer having been subsequently notified by the Affiliate of the Domain Hold,

the Owner and the Buyer shall be deemed to have entered into a valid, binding and enforceable contract for the sale of the Owner’s Domain(s) for the Fixed Price and otherwise on the terms and conditions notified to the Owner and the Buyer by the Affiliate (“Domain Sale Contract”).

6. NEGOTIABLE PRICE LISTING

6.1. The Owner may elect to list the Owner’s Domain(s) as a Negotiable Price Listing. In such event, the Owner shall nominate a Negotiable Price for each of the Owner’s Domain(s) that are the subject of a Negotiable Price Listing. The Owner may at their discretion, also nominate a Waterline Price and a Rejection Price for each of the applicable Owner’s Domain(s).

6.2. The Owner’s Domains that are the subject of a Negotiable Price Listing shall be displayed or advertised for sale on the Affiliates Website with the Negotiable Price together with the statement “Negotiable Price” or similar. Under no circumstances shall the Waterline Price or the Rejection Price be displayed on the Affiliate’s Website or otherwise disclosed by the Affiliate to potential Buyers.

6.3. A Buyer may submit to the Affiliate an offer to purchase the Owner’s Domain(s) the subject of the Negotiable Price Listing (“Buyer’s Offer”) for either the Negotiable Price or a price lower than the Negotiable Price (“Offer Price”).

6.4. Subject to Clause 6.5, the Buyer’s Offer shall be deemed to be a valid, binding and irrevocable offer by the Buyer to purchase the Owner’s Domain(s) that are the subject of the Negotiable Price Listing for the Offer Price.

6.5. The Buyer’s Offer shall remain open and capable of acceptance for seven (7) days from the date the Buyer’s Offer is submitted. During this time, the Buyer cannot withdraw the Buyer’s Offer or reduce the Offer Price.

6.6. In the event that the Offer Price is greater than or equal to the Waterline Price, the Affiliate may, for and on behalf of the Owner, either:

(a) Reject the Buyer’s Offer (“Rejected Offer”);

(b) Accept the Buyer’s Offer (“Accepted Offer”), or

(c) Submit a counter-offer to the Buyer, offering to sell the Owner’s Domain(s) to the Buyer for an Offer Price higher than the Buyer’s Offer Price (“Counter Offer”).

6.7. In the event that the Offer Price is less than the Waterline Price, but greater than or equal to the Rejection Price, the Affiliate may:

(a) Use its best endeavors to encourage the Buyer to increase the Offer Price above the Waterline Price; or

(b) At the Affiliate’s Discretion, forward the Buyer’s Offer to the Owner (via Fabulous.com) for the Owner’s consideration.

6.8. If the Owner negotiates a sale of the Owner’s Domain(s) after the Buyer’s Offer is forwarded to the Owner by the Affiliate under Clause 6.7(b) above, then the Affiliate shall be entitled to the Commission Fee at the Base Commission calculated on the Agreed Price under Clause 15 below.

6.9. If the Offer Price is less than the Rejection Price, the Buyer shall be notified by the Affiliate accordingly and invited to submit a higher Offer Price, but without disclosing the Rejection Price. All auto-response communications that fall below the Rejection Price require a 15 minute delay before any rejection communication can be sent.

6.10. In the event that the Buyer’s Offer is accepted by the Owner (or by the Affiliate on behalf of the Owner), or the Counter Offer is accepted by the Buyer (“Accepted Offer”), the Affiliate shall immediately notify Fabulous.com of the Accepted Offer and request that the Owner’s Domain(s) be placed under Domain Hold by Fabulous.com in accordance with Clause 11 below and removed from the Domain Inventory.

6.11. Upon the Affiliate receiving notice from Fabulous.com that:

(a) The Owner’s Domain(s) that are the subject of a Negotiable Price Listing have not been validly withdrawn from sale by the Owner and that the Owner’s Domain(s) are otherwise still available for sale; and

(b) That the Owner’s Domain(s) have been placed on hold in accordance with Clause 11 below (“Domain Hold”),

the Owner and the Buyer shall be deemed to have entered into a valid, binding and enforceable contract for the sale of the Owner’s Domain(s) for the Contract Price and otherwise on the terms and conditions notified to the Owner and the Buyer by the Affiliate (“Domain Sale Contract”).

7. MAKE OFFER LISTING

7.1. The Owner may elect to list the Owner’s Domain(s) as a Make Offer Listing. In such event, the Owner may at their discretion, nominate an Offers Above Price for each of the Owner’s Domain(s) that are the subject of a Make Offer Listing. Alternatively, the applicable Owner’s Domain(s) can be listed without an Offers Above Price.

7.2. Owner’s Domains that are the subject of a Make Offer Listing with a Offers Above Price shall be displayed or advertised for sale on the Affiliates Website with the Offers Above Price together with the statement “Offers Above”. If the applicable Owner’s Domain(s) are listed without an Offers Above Price, they shall be displayed with the statement “Make an Offer” or similar.

7.3. A Buyer may submit to the Affiliate an offer to purchase the Owner’s Domain(s) that are the subject of the Make Offer Listing (“Buyer’s Offer”) for either the Offers Above Price or a price higher than the Offers Above Price (“Offer Price”).

7.4. Subject to Clause 7.5, the Buyer’s Offer shall be deemed to be a valid, binding and irrevocable offer by the Buyer to purchase the Owner’s Domain(s) that are the subject of the Make Offer Listing for the Offer Price.

7.5. The Buyer’s Offer shall remain open and capable of acceptance for seven (7) days from the date the Buyer’s Offer is submitted. During this time, the Buyer cannot withdraw the Buyer’s Offer or reduce the Offer Price.

7.6. If an Offers Above Price has been nominated by the Owner, then each Buyer’s Offer greater than the Offers Above Price shall be forwarded by the Affiliate to the Owner (via Fabulous.com) for the Owner’s consideration.

7.7. If an Offers Above Price has been nominated by the Owner, then a Buyer’s Offer less than the Offers Above Price shall be automatically rejected by the Affiliate.

7.8. If no Offers Above Price is nominated by the Owner, then each Buyer’s Offer irrespective of the Offer Price shall be forwarded by the Affiliate to the Owner (via Fabulous.com) for the Owner’s consideration.

7.9. After receiving the Buyer’s Offer, the Owner may either:

(a) Reject the Buyer’s Offer;

(b) Accept the Buyer’s Offer, or

(c) Submit a counter-offer to the Buyer, offering to sell the Owner’s Domain(s) to the Buyer for an Offer Price higher than the Buyer’s Offer Price (“Counter Offer”).

7.10. If the Owner negotiates a sale of the Owner’s Domain(s) after the Buyer’s Offer is forwarded to the Owner by the Affiliate, then the Affiliate shall be entitled to the Commission Fee at the Base Commission calculated on the Agreed Price under Clause 15 below.

7.11. In the event that the Buyer’s Offer is accepted by the Owner, or the Owner’s Counter Offer is accepted by the Buyer in accordance with the procedure on the Affiliate’s Website (“Accepted Offer”), the Affiliate shall immediately notify Fabulous.com of the Accepted Offer and request that the Owner’s Domain(s) be placed under Domain Hold by Fabulous.com in accordance with Clause 11 below and removed from the Domain Inventory.

7.12. Upon the Affiliate receiving notice from Fabulous.com that:

(a) The Owner’s Domain(s) that are the subject of a Make Offer Listing have not been validly withdrawn from sale by the Owner and that the Owner’s Domain(s) are otherwise still available for sale; and

(b) That the Owner’s Domain(s) have been placed under Domain Hold,

the Owner and the Buyer shall be deemed to have entered into a valid, binding and enforceable contract for the sale of the Owner’s Domain(s) for the Contract Price and otherwise on the terms and conditions notified to the Owner and the Buyer by the Affiliate (“Domain Sale Contract”).

8. COMMUNICATIONS BETWEEN THE PARTIES

8.1. All communications with the Affiliates and Buyers regarding the sale of the Owner’s Domain(s) shall be made by Fabulous.com on behalf of the Owner, as intermediary, in order to protect the privacy of the Owner and to maintain the existing commercial relationship that Fabulous.com has with the Affiliates.

8.2. All communications received by the Affiliate from the Buyer pertaining to this Agreement shall be sent to Fabulous.com and then forwarded to the Owner.

8.3. All communications that Fabulous.com receives from the Owner pertaining to the Owner’s Domain(s) shall be sent to the Affiliate and then forwarded on to the Buyer.

9. RELATIONSHIP BETWEEN THE PARTIES

9.1. The Parties acknowledge and agree that the relationship between Fabulous.com and the Owner 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.

9.2. The Owner acknowledges and agrees that Fabulous.com and the Affiliate are both acting as independent agents for the Owner in regard to displaying or advertising the Owner’s Domains for sale on the Affiliate’s Website, forwarding the Owner’s communications in regard to the sale of the Owner’s Domain(s) to the Buyer and facilitating the sale of the Owner’s Domain(s) on behalf of the Owner.

10. SOLICITATION OF DOMAIN NAMES SALES OUTSIDE OF THE FABULOUS DOMAINS MARKETPLACE

10.1. The Owner and the Buyer shall not under any circumstances, communicate, negotiate or otherwise attempt to procure the sale and purchase of the Owner’s Domain(s) other than in accordance with the procedure contained in this Listing Agreement with the purpose, intention or result of circumventing the fees that would otherwise be payable to Fabulous.com under this Agreement (“External Negotiations”).

10.2. External Negotiations include:

(a) Using contact information of the Owner or the Buyer obtained from Fabulous.com or otherwise using the Services for the purpose of negotiating to sell or purchase any of the Owners Domain(s) included in the Domain Listings; or

(b) The Buyer contacting the Owner by any means after becoming aware of the Owner’s Domain(s) as a result of viewing the Domain Listings on the Website, using information available from any source, for the purpose of negotiating to purchase and sell the Owners Domain(s) outside of the Fabulous.com marketplace.

11. DOMAIN HOLD FACILITY

11.1. In the event that an Accepted Offer has been made in accordance with Clauses 5, 6 or 7 above, the Affiliate shall immediately notify Fabulous.com via the URL link provided by Fabulous.com, requesting that a hold be placed on the Owner’s Domain(s) that are the subject of the Domain Sale Contract, for the purposes of temporarily reserving and holding the Owner’s Domain(s) pending completion of the applicable Domain Sale Contract (“Domain Hold”).

11.2. Fabulous.com shall implement the Domain Hold as soon as practicable after receiving the request from the Affiliate.

11.3. The Domain Hold shall remain in place for a period of seventy two (72) hours (unless an extension is requested by the Affiliate due to circumstances beyond their control), after which time, the Domain Hold will automatically be withdrawn and the Owner’s Domain(s) that are the subject of the Domain Hold will revert back to being included in the Domain Inventory and be deemed to be available for sale.

11.4. A Domain Sale Contract shall only become unconditional upon:

(a) The Owner’s Domain(s) that are the subject of the Domain Sale Contract being put on hold and the Affiliate notified accordingly; and

(b) The Owner’s Domain(s) being removed from the Domain Inventory and the updated Domain Inventory database being distributed to all of Fabulous.com’s distribution partners, including but not limited to the Affiliate.

11.5. In the event that two or more of Fabulous.com’s distribution partners request a hold on the Owner’s Domain(s), Fabulous.com shall honour the request that it receives first in time.

12. REMOVAL OR MODIFICATION OF LISTINGS

12.1. At anytime prior to the Owner entering into a Domain Sale Contract for the Owner’s Domain(s), the Owner may remove or modify a Domain Listing for one or more of the Owner’s Domain(s) from the Domain Inventory via the Owner’s Account.

12.2. The Domain Inventory shall be updated within 24 hours of the Domain Listing being removed or modified in the Owner’s Account. The Owner shall be deemed to have revoked or modified the applicable Domain Listing immediately upon the Domain Inventory being updated.

12.3. The Owner shall be solely responsible for the privacy and security of the username and password login details used to access the Owner’s Account (“Login Details”). The Owner shall not disclose the Login Details to any third party or otherwise use it for any unauthorized purpose. Unless the Owner has previously notified Fabulous.com that the security of the Login Details have been compromised, the Owner shall be responsible for all actions and transactions on the Owner’s Account as a result of gaining access to the Owner’s Account using the Login Details.

13. COMPLETION OF DOMAIN SALE CONTRACT

13.1. Completion of a Domain Sale Contract shall be deemed to have occurred (“Completion”) when:

(a) Payment of the Contract Price has been made by the Buyer and is held by Fabulous.com or the Affiliate; and

(b) The Owner’s Domain(s) have been transferred into an account with an ICANN accredited domain name registrar under the sole and absolute control of the Buyer (or their nominee) and the WHOIS database has been updated to reflect the Buyer's registration data.

13.2. The Owner hereby acknowledges that for the purposes of effecting a transfer of the Owner’s Domain(s) that are the subject of the Domain Sale Contract to the Buyer, Fabulous.com and the Affiliate have an arrangement whereby the applicable Owner’s Domains are transferred by Fabulous.com into an account with Fabulous.com controlled by the Affiliate to be held by the Affiliate for and on behalf of the Buyer pending a subsequent transfer into an account under the sole and absolute control of the Buyer with either Fabulous.com or another ICANN accredited domain name registrar. Accordingly, there is no requirement for either Fabulous.com, the Affiliate or the Buyer’s sponsoring domain name registrar to submit a form of authorization (“FOA”) to the Owner for the transfer of the applicable Owner’s Domain(s) under the terms of the ICANN approved Policy on Transfer of Registrations between Registrars effective 12 July, 2004 (“Transfer Policy”).

13.3. The Owner hereby agrees to waive and release Fabulous.com, the Affiliate and the Buyer’s sponsoring domain name registrar, from and against all claims and liabilities that the Owner may have as a result of any deemed non-compliance with the Transfer Policy.

14. PAYMENT OF CONTRACT PRICE

14.1. Upon the Owner and the Buyer entering into a valid and binding Domain Sale Contract for one or more of the Owner’s Domain(s), Fabulous.com or the Affiliate shall contact the Buyer via email to notify the Buyer of the successful purchase of the Owner’s Domain(s) and request payment of the Contract Price.

14.2. The Contract Price shall be payable in United States Dollars ($US) to the escrow account of the Affiliate processing the Domain Sale Contract (“Escrow Account”), where it will be held until the Owner’s Domain(s) have been successfully transferred to the Buyer in accordance with the applicable Domain Sale Contract.

14.3. Failure by the Buyer to remit payment of the Contract Price in full to the Escrow Account within ten (10) business days of payment being requested, shall be a material breach of the applicable Domain Sale Contract and shall be grounds for termination.

14.4. Upon Completion of the applicable Domain Sale Contract in accordance with Clause 13 above, the balance of the Contract Price after deducting the following amounts:

(a) The applicable Commission Fees payable to the Affiliate and/or Fabulous.com under Clause 15 below; and

(b) The fees payable by the Owner for extending the registration period of the Owners’ Domain(s) that are the subject of the Domain Sale Contract in accordance with Clause 18.3 below,

shall be forwarded to the Owner, within ten (10) days after the end of the month in which Completion of the applicable Domain Sale Contract occurred.

14.5. In the event that after the Remitted Amount is forwarded to the Owner, a transaction is found to be fraudulent and/or payment of the Contract Price is subsequently repudiated, charged backed (within or after the expiration of the 6 month charge back period), or otherwise refunded to the Buyer (“Refund”), the Owner shall not be liable to indemnify or reimburse Fabulous.com and/or the Affiliate for any loss or damage sustained.

14.6. However, if the Owner has elected to become a preferred supplier of domain name inventory to the Affiliates (“Preferred Supplier Status”), then so long as the applicable Owner’s Domain(s) are under the control of Fabulous.com or its Affiliates as the sponsoring registrar at the time of the Refund, the Owner shall be required to return the Remitted Amount to Fabulous.com on the condition that Fabulous.com transfers ownership of the applicable Owner’s Domain(s) back to the Owner.

15. COMMISSION FEES

15.1. In the event that the Owner’s Domain(s) are sold on one of the Affiliate’s Websites, the Owner shall be required to pay one of the following fees to Fabulous.com for provision of the Domain Inventory Services (“Commission Fees”):

(a) Sales resulting from traffic generated by the Owner’s Domain(s) parked with Fabulous.com

A Commission Fee equal to ten percent (10%) of Contract Price for the provision of the Financial Clearing House Services, in the event that the Owner’s Domain(s) are parked with and monetized by Fabulous.com pursuant to Fabulous.com’s Domain Name Management Agreement and the Buyer types one of the Owner’s Domain(s) into the Buyers browser (ie. the Buyer directly navigates to the Owner’s Domain(s)) and the Buyer is redirected to Fabulous.com for processing of the sale via a linking mechanism clearly identified with the phrase “Click Here to Buy this Domain Name Now” (or similar wording).

The two percent (2%) Commission Fee otherwise payable to Fabulous.com for the provision of the Domain Inventory Services is waived for sales effected in accordance with this Clause 15.1(a).

(b) Sales resulting from Buyer interest generated by the Affiliates other than the Owner’s direct navigation traffic

A Commission Fee equal to the percentage of the Contract Price as nominated by the Owner via the Owner’s Account on a domain by domain basis (“Variable Commission”) for the provision of the Domain Listing Services and the Sales Agent Services (in addition to the Domain Inventory Services and the Financial Clearing House Services).

The Variable Commission is the basis by which the Fabulous.com inventory management technology enables the Domain Inventory to be sorted and distributed to the Affiliates. The Affiliates may in their sole and absolute discretion, only accept distribution of domain names in the Domain Inventory with a Variable Commission equal to or higher than the Variable Commission nominated by the Affiliate.

The total Variable Commission payable under this Clause 15.1(b) also includes the two percent (2%) Commission Fee payable to Fabulous.com for the Domain Inventory Services and the ten percent (10%) Commission Fee payable to Fabulous.com or the Affiliate (as applicable) for the Financial Clearing House Services.

For the sake of clarity, the Variable Commission fees payable to the Affiliate shall be calculated as follows:
Commission Structure Diagram

15.2. Notwithstanding any agreement between the Owner and Buyer to the contrary, the Owner shall be responsible for paying the Sales Commission to Fabulous.com and Affiliates. The Sales Commission shall be deducted from the Accepted Price paid by the Buyer to Fabulous.com, with the balance of the Accepted Price being remitted to the Owner after Completion.

16. OWNER REFERRAL / LEAD GENERATOR FEE

16.1. The Owner shall be entitled to a commission fee equal to 12.5% of the Contract Price (“Lead Generator Fee”) upon Completion of a Domain Sale Contract for one or more domain names in the Domain Inventory other than the Owner’s Domain(s) (“Third Party Domains”), which occurs as a direct result of the Buyer becoming aware of the Third Party Domains after the Buyer types one of the Owner’s Domain(s) into the Buyers browser (ie. the Buyer directly navigates to the Owner’s Domain(s)) and the Buyer is subsequently redirected to either Fabulous.com Website or the Affiliates Websites displaying the Domain Listings of the Third Party Domains (“Lead Generation”).

16.2. For the sake of clarity, the Lead Generator Fee shall only be payable to the Owner when the Owner has provided the most recent Lead Generation prior to the Buyer entering into a Domain Sale Contract for the Third Party Domains.

17. AUSTRALIAN RESIDENTS - TAXATION OBLIGATIONS

17.1. If the Owner is an Australian resident for taxation purposes, then the Owner is required to provide Fabulous.com with either an Australian Business Number (ABN) or a "No ABN Required Statement". If the Owner fails to provide Fabulous.com with an ABN or a "No ABN Required Statement", Fabulous.com shall on behalf of the Buyer, withhold 48.5% of the amount otherwise payable to the Owner under this Agreement (”Withholding Amount”) and remit the Withholding Amount to the Australian Taxation Office, pursuant to section 12-190 of Schedule 1 to the Taxation Administration Act 1953 (Cth).

17.2. If the Owner is an Australian resident for taxation purposes, then in addition to the Commission Fees payable by the Owner under Clause 15 for the provision of the Domain Listing Services and the Financial Clearing House Services , Fabulous.com shall also be entitled to charge and collect from the Owner, an amount equal to 10% of the Commission Fees on account of the Goods and Services Tax (“GST”) payable by Fabulous.com under the New Tax System (Goods and Services Tax) Act 1999 and the Regulations thereto ("the GST Act") for the supply of the Domain Listing Services and/or the Financial Clearing House Services to the Owner.

17.3. If the Buyer is an Australian resident for taxation purposes and 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 Owner’s Domain(s) under Clause 14, Fabulous.com as the agent for the Owner shall also be entitled to 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’s Domain(s) to the Buyer.

18. OWNERS WARRANTIES AND OBLIGATIONS

18.1. The Owner hereby warrants and covenants to Fabulous.com as follows:

(a) The Owner is the legal and beneficial owner of the Owner’s Domain(s) and the Owner has all right, title and interest in the Owner’s Domain(s) and has legal capacity to enter into the Domain Sale Contract.

(b) The Owner’s Domain(s) are not subject to any liens, encumbrances, charges, restrictions, licenses, or other security interests;

(c) The Owner’s Domain(s) are registered with an accredited domain name registrar or other registration authority;

(d) The registration of the Owner’s Domain(s) are current and not subject to deletion in the next 30 days, cancellation, rescission, or deactivation by the applicable domain name registrar or other registration authority;

(e) The Owner has not taken any action that would impair the Owner’s ability or right to transfer the registration of the Owner’s Domain(s) and no such action has been taken against the Owner;

(f) The Owner’s Domain(s) are not the subject of any litigation, arbitration or other judicial or administrative proceedings contesting the Owner’s right to register and/or use the Owner’s Domain(s);

18.2. The Owner shall at all times during the currency of this Agreement:

(a) Accurately describe the Owner’s Domain(s) and other details listed pertaining to the Owner’s Domain(s);

(b) Not describe or provide links in the Domain Listings, to any website, goods or services other than the Owner’s Domain(s);

(c) Not under any circumstances, include in the Domain Listings any of the Owner’s Domain(s):

(i) That the Owner does not have sufficient right to transfer or that it is illegal to transfer under applicable law, statute, ordinance or regulation;

(ii) That infringes or violates the intellectual property rights or other legal rights of any third party;

(iii) That is an intentional misspelling of generic or descriptive words;

(iv) That is an intentional misrepresentation or misspelling; or pseudo-trademark infraction of another popular website or brand;

(v) Which in Fabulous.com’s sole discretion, promote hatred, violence, child pornography, racial or religious intolerance, or are otherwise inflammatory or offensive (“Offensive Behavior”); or

(vi) Which in Fabulous.com’s sole discretion, promote organizations that endorse and/or encourage Offensive Behavior.

18.3. Upon entering into a Domain Sale Contract for one or more of the Owner’s Domain(s) and prior to the Completion of the Domain Sale Contract, the Owner shall at their expense, extend the registration period of the applicable Owners’ Domain(s) for an additional one (1) year from the date of the Domain Sale Contract (“Domain Renewal”). The Owner hereby authorizes Fabulous.com to undertake the Domain Renewal on behalf of the Owner and to charge the Owner for the Domain Renewal at the prevailing registration renewal fees charged by Fabulous.com for wholesale clients.

19. SUSPENSION AND TERMINATION

19.1. The Owner acknowledges and agrees that Fabulous.com may in its sole and absolute discretion, suspend, cancel, or modify the Domain Listing Services and/or Financial Clearing House Services or the Owner’s use of the Domain Listing Services and/or the Financial Clearing House Services, at any time without further notice to the Owner.

19.2. Fabulous.com may terminate this Agreement at anytime without notice if it has reasonable grounds to believe that the Owner has breached the terms of this Agreement or the policies of Fabulous.com as published on the Website.

19.3. If a Domain Sale Contract for the Owner’s Domains is terminated pursuant to the terms of the Domain Sale Contract as a result of Default by the Owner, then Fabulous.com reserves the right to recover from the Owner as a liquidated debt, the Sales Commission that would have been payable by the Owner to Fabulous.com and/or the Affiliate under Clause 15 of this Agreement, had Completion taken place.

19.4. If a Domain Sale Contract for the Owner’s Domains is terminated pursuant to the terms of the Domain Sale Contract as a result of Default by the Domain Buyer, then Fabulous.com may charge the Buyer an administration fee of the Purchase Price to reimburse for administration costs. The balance the Purchase Price shall be refunded to the Buyer after deducting the Administration Fee.

20. OBLIGATIONS SHALL SURVIVE

20.1. So far as is applicable, the provisions of this Agreement shall survive the termination of this Agreement.

21. NON-INTERFERENCE

21.1. Neither the Owner nor the Buyer shall directly or indirectly interfere or attempt to interfere with the provision of the Domain Listing Services, the Financial Clearing House Services and/or the operation of the Website, including any action which may impose an unreasonable or disproportionately large load on Fabulous.com’s computer servers and infrastructure (“Fabulous Network”), or installing or attempting to install any material that may contain any viruses, trojans, worms or other malicious code or software that may damage, interfere with, intercept or otherwise adversely affect the Fabulous.com Network.

22. PERSONAL INFORMATION AND PRIVACY

22.1. Information that Fabulous.com collects from you shall be dealt with in accordance with Fabulous.com’s Privacy Policy (a copy of which is located at http://www.fabulous.com/informationcenter/index.htm?formdata[qid]=714) and is incorporated in this Agreement by reference and contains terms you acknowledge you have read, and accept, and agree to and with which you will comply.

23. PUBLICATION RIGHTS

23.1. Subject to obtaining the prior written consent of both the Owner and the Buyer, Fabulous.com shall have the right to identify and publish on the Website, details of the Owner’s Domain(s) sold through the Domain Listing Services (including the Contract Price), but shall not under any circumstances, publish the identity or other personal information of either the Owner or the Buyer.

24. NOTICES

24.1. All notices required to be sent under this Agreement shall be sent via e-mail:

(a) If to Fabulous.com, to support@fabulous.com;

(b) If to the Owner or the Buyer, at the e-mail address nominated at the time the Owner and the Buyer registered with Fabulous.com (or as later updated by the Owner and the Buyer from time to time).

24.2. Any notice shall be deemed effective upon the logging by sender's server of confirmation of delivery of the email to the recipients email server.

25. DISCLAIMER OF WARRANTIES

25.1. The Owner agrees that use of the Domain Listing Services, the Financial Clearing House Services and the Website are for use at the Owner’s own risk and are provided on an “as is” and an “as available” basis. The Owner shall be solely responsible for any damage resulting from the use of the Domain Listing Services, the Financial Clearing House Services and/or the Website.

25.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FABULOUS.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, CORRECTNESS, ACCURACY, RELIABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, NOR THAT THE WEBSITE, THE DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES SHALL BE UNINTERRUPTED, SECURE, OR FREE OF VIRUS OR ERROR.

25.3. Fabulous.com does not make any warranty as to the results that may be obtained from the use of the Domain Listing Services, the Financial Clearing House Services, or as to the accuracy or reliability of any information obtained from the Fabulous.com or Affiliate Web sites or companies.

25.4. No advice or information that you may obtain from the Website, through the Domain Listing Services, the Financial Clearing House Services or otherwise provided by Fabulous.com shall create any warranty not expressly stated therein.

25.5. Fabulous.com does not screen, review or control the content of the Domain Listings and/or the Owner’s Domain(s) that are being offered for sale on the Website, nor does it screen review or control any of the activities or statements of users of its Domain Listing Services.

26. LIMITATION OF LIABILITY

26.1. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, FABULOUS.COM SHALL NOT BE LIABLE TO THE OWNER AND/OR THE BUYER, NOR ANY THIRD PARTY, NOR ANY OF ITS MEMBERS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, RESULTING FROM THE USE OR THE INABILITY TO USE THE DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE, THE DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF THE TRANSMISSION OF DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS PROHIBITED BY LAW, IF THE OWNER OR THE BUYER IS DISSATISFIED WITH THE DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES, THEIR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES.

27. INDEMNIFICATION

27.1. EACH PARTY TO THIS AGREEMENT (INDEMNITOR) SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY (INDEMNITEE), AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS, MEMBERS, AND OTHER OWNERS, FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DEMANDS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, JUDGMENTS, SETTLEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND INVESTIGATION COSTS), OR ANY OTHER LIABILITY WHATSOEVER (ANY OR ALL OF THE FOREGOING HEREINAFTER REFERRED TO AS 'LOSSES') INSOFAR AS SUCH LOSSES (OR ACTIONS IN RESPECT THEREOF) ARISING OUT OF OR RELATING TO THIS AGREEMENT, FOR THE INDEMNITOR'S BREACH OF THIS AGREEMENT AND FOR CLAIMS OF PRODUCT LIABILITY AND/OR MALPRACTICE OR MISFEASANCE IN THE PERFORMANCE OF DOMAIN LISTING SERVICES AND/OR THE FINANCIAL CLEARING HOUSE SERVICES OR OPERATION OF THE WEBSITE ('CLAIMS').

27.2. SHOULD ANY CLAIM GIVE RISE TO A DUTY OF INDEMNIFICATION UNDER THE PROVISIONS OF THIS AGREEMENT, THEN THE INDEMNITEE SHALL PROMPTLY NOTIFY THE INDEMNITOR, AND THE INDEMNITEE SHALL BE ENTITLED, AT ITS OWN EXPENSE, AND UPON REASONABLE NOTICE TO THE INDEMNITOR, TO PARTICIPATE IN, CONTROL OF THE DEFENCE, COMPROMISE AND TO DEFEND SUCH CLAIM. THE INDEMNITOR MAY NOT SETTLE ANY CLAIM WITHOUT THE CONSENT OF THE INDEMNITEE, EXCEPT UPON TERMS AND CONDITIONS OFFERED OR CONSENTED TO BY THE INDEMNITEE, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. NEITHER PARTICIPATION NOR CONTROL IN THE DEFENCE SHALL WAIVE OR REDUCE ANY OBLIGATIONS TO INDEMNIFY OR HOLD HARMLESS.

28. HEADINGS

28.1. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.

29. FORCE MAJEURE

29.1. 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, 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.

30. GOVERNING LAW AND JURISDICTION

30.1. 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 APPELLATE COURTS.

31. SEVERABILITY

31.1. 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.

32. NO ASSIGNMENT

32.1. This Agreement and the rights and obligations under it are personal and may not be transferred, delegated, or assigned.

33. WAIVER

33.1. The waiver or failure of any party to exercise any rights under this Contract shall not be deemed a waiver or other limitation of any other right or any future right.

34. COMPLIANCE CHECKS

34.1. Fabulous.com reserves the right to periodically monitor the Owner’s use of the Domain Inventory Services and/or the Domain Listing Services at any time without notice for the purpose of determining compliance with this Agreement and may request that the Owner provide all reasonable and necessary information required by Fabulous.com to determine such compliance.