Expiring Domain Name Sales Agreement
EXPIRING DOMAIN NAME SALES AGREEMENT
1.1. Fabulous.com has entered into agreements with Affiliates in relation to the provision by those Affiliates of certain domain name sale services.
1.2. This Agreement governs the terms and conditions on which Fabulous.com will procure the Expiring Domain Names Sales Service to be provided to you by an Affiliate.
1.3. This Expiring Domain Name Sales Service is an opt in service. You will only be eligible to sell your Expiring Domain Name(s) via this Service if you have opted in.
1.4. The Owner agrees to be bound by all rules, regulations and policies regarding the use of the Service which are posted on the Website. All such rules, regulations and 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.
1.5. 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.
1.6. By using the Expiring Domain Name Sales Service, 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, regulations or policies that are published on the Website from time to time.
2. DEFINITIONS AND INTERPRETATION
In this Agreement, unless a contrary intention appears:
Affiliate means a third party operator of an online domain name trading platform with whom Fabulous.com has a commercial agreement in relation to the provision by that third party of the Service.
Agreement means this Expiring Domain Name Sales Agreement, which specifically incorporates the rules, regulations and policies that are published on the Website and which may be amended from time to time by Fabulous.com without notice to the Owner.
Buyer means a person who purchases one or more of the Owners Expiring Domain Names through the Service.
Contract Price means the sale price of an Expiring Domain Name as specified in the Domain Sale Contract.
Day 33 means the day that falls 33 days after the Expiry Date.
Day 35 means the day that falls 35 days after the Expiry Date.
Domain Inventory means the list of Expiring Domain Names provided by Fabulous.com to Affiliates from time to time.
Domain Sale Contract means a contract entered into between the Owner and a Buyer in relation to one or more of the Owners Expiring Domain Names.
Expiry Date means the date of expiration of the registration period of a domain name.
Expiring Domain Name means one of the Owners Internet domain names that is due to have its registration expire and which is included in the Domain Inventory from time to time.
Expiring Domain Names Sales Service and Service mean the domain name listing, payment processing and escrow services and other associated domain name sales services to be provided by an Affiliate to the Owner.
Fabulous.com means Fabulous.com Pty Ltd ABN 64 094 218 443 of Level 10, 243 Edward Street, Brisbane, Queensland, Australia.
Owner or you means the registered owner of one or more Internet domain names included in the Domain Inventory from time to time.
Website means the Fabulous.com website located at www.Fabulous.com.
3. DOMAIN INVENTORY SERVICES
3.1. Fabulous.com will facilitate the listing of the Owners Expiring Domain Name(s) for sale on an Affiliates Website, while providing central administration via the Owners online account interface on the Fabulous.com Website (Owners Account).
3.2. At the Owners request, Fabulous.com will include the Owners Expiring Domain Names in the Domain Inventory. The Domain Inventory will be provided to the Affiliate, and provided the Expiring Domain Name(s) satisfy the listing criteria nominated by the Affiliate, Fabulous.com will procure the Affiliate to advertise the Expiring Domain Names for sale on the Affiliates Website(s).
3.3. The Owners Expiring Domain Name(s) may, at the sole and absolute discretion of the Affiliate(s), be prominently displayed for sale on the Affiliates Website for immediate viewing by prospective Buyers. The Owners Expiring Domain Name(s) may be sorted and displayed on the Affiliates Website in any manner determined by the Affiliate.
4. SALES PROCESS AND DOMAIN SALE CONTRACT
4.1. The Owner agrees that all of the Owners Expiring Domain Names on the Domain Inventory will have a starting sale price of USD$59.00 (List Price).
4.2. The Owner retains the right to withdraw the Expiring Domain Name from the Service at any time on or before Day 33.
4.3. A Domain Sale Contract becomes unconditional upon Fabulous.com receiving confirmation on Day 35 that a bid of equal to or more than the List Price has been received on an Expiring Domain Name.
4.4. The Owner warrants and represents that the Owner will not place, nor act in concert with any third party to place, a bid on the Expiring Domain Name.
4.5. If Fabulous.com receives confirmation on Day 35 that no bid of equal to or more than the List Price has been received in respect the Expiring Domain Name, the registration of the Expiring Domain Name will be cancelled and removed in accordance with the Owners Domain Name Registration Agreement.
|Time line for listing Expired Domain Names|
4.6. The Owner acknowledges that for the purposes of effecting a transfer of the Owners Expiring Domain Name(s) that are the subject of the Domain Sale Contract to the Buyer, Fabulous.com and the Affiliate have an arrangement whereby the Owners Expiring Domain Names are transferred by Fabulous.com into an account with Fabulous.com controlled by the Buyer. Accordingly, there is no requirement for either Fabulous.com to submit a form of authorization (FOA) to the Owner for the transfer of the applicable Owners Expiring Domain Name(s) under the terms of the ICANN approved Policy on Transfer of Registrations between Registrars effective 12 July, 2004 (Transfer Policy).
4.7. The Owner hereby agrees to waive and release Fabulous.com from and against all claims and liabilities that the Owner may have as a result of any deemed non-compliance with the Transfer Policy.
5. PAYMENT OF CONTRACT PRICE
5.1. Upon the Owner and the Buyer entering into a valid and binding Domain Sale Contract for one or more of the Owners Expiring Domain Names, the Affiliate shall contact the Buyer via email to notify the Buyer of the successful purchase of the Owners Expiring Domain Name(s) and to request payment of the Contract Price.
5.2. The Contract Price shall be payable in United States Dollars ($US) to the escrow account of the Affiliate processing the Domain Sale Contract , where it will be held until the Owners Domain Name(s) have been successfully transferred to the Buyer in accordance with the applicable Domain Sale Contract.
5.3. Upon Completion of the applicable Domain Sale Contract in accordance with Clause 5.2, the balance of the Contract Price will be remitted to the Owner after deducting the following amounts:
(a) The applicable Commission Fees payable to the Affiliate and/or Fabulous.com under Clause 6; and
(b) The fees payable by the Owner for extending the registration period of the Owners Expiring Domain Name(s) that are the subject of the Domain Sale Contract in accordance with Clause 7.3
5.4 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 be liable to indemnify or reimburse Fabulous.com and/or the Affiliate for any loss or damage sustained.
5.5. The Owner shall be required to return the Remitted Amount to Fabulous.com on the condition that Fabulous.com transfers ownership of the applicable Owners Domain Name(s) back to the Owner.
6. COMMISSION FEES
6.1. In the event that the Owners Expiring Domain Names are sold on an Affiliates Website, the Owner shall be required to pay a commission of 40% of the Contract Price, which shall be shared amongst Fabulous.com and the Affiliate (Commission Fees).
7. OWNERS WARRANTIES AND OBLIGATIONS
7.1. The Owner hereby warrants and covenants to Fabulous.com as follows:
(a) The Owner is the legal and beneficial owner of the Owners Expiring Domain Name(s) and the Owner has all right, title and interest in the Owners Expiring Domain Name(s) and has legal capacity to enter into the Domain Sale Contract;
(b) The Owners Expiring Domain Name(s) are not subject to any liens, encumbrances, charges, restrictions, licenses, or other security interests;
(c) The Owner has not taken any action that would impair the Owners ability or right to transfer the registration of the Owners Expiring Domain Name(s) and no such action has been taken against the Owner; and
(d) The Owners Expiring Domain Name(s) are not the subject of any litigation, arbitration or other judicial or administrative proceedings contesting the Owners right to register and/or use the Owners Expiring Domain(s).
7.2. The Owner warrants to Fabulous.com that the Owner shall at all times during the currency of this Agreement accurately describe the Owners Expiring Domain Name(s) and other details listed pertaining to the Owners Expiring Domain Name(s).
7.3The Owner warrants that the Owner shall not under any circumstances allow the inclusion in the Domain Inventory of any of the Owners Expiring Domain Name(s) that:
(a) the Owner does not have sufficient right to transfer or that it is illegal to transfer under applicable law, statute, ordinance or regulation;
(b) infringes or violates the intellectual property rights or other legal rights of any third party;
(c) is an intentional misspelling of generic or descriptive words;
(d) is an intentional misrepresentation or misspelling; or pseudo-trademark infraction of another popular website or brand;
(e) promote hatred, violence, child pornography, racial or religious intolerance, or are otherwise inflammatory or offensive (Offensive Behaviour); or
(f) promote organizations that endorse and/or encourage Offensive Behaviour.
7.4. Upon entering into a Domain Sale Contract for one or more of the Owners Expiring Domain Names(s) and prior to the Completion of the Domain Sale Contract, the Owner shall at the Owners expense, extend the registration period of the Owners Expiring Domain Name(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.
8. SUSPENSION AND TERMINATION
8.1. The Owner acknowledges and agrees that Fabulous.com may in its sole and absolute discretion, suspend, cancel, or modify the Service or the Owners use of the Service at any time without further notice to the Owner.
8.2. Fabulous.com may terminate this Agreement at any time without notice if it has reasonable grounds to believe that the Owner has breached the terms of this Agreement or the rules, regulations or policies of Fabulous.com as published on the Website.
8.3. If a Domain Sale Contract for the Owners Expiring Domain Name(s) 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 Commission Fees that would have been payable by the Owner to Fabulous.com and/or the Affiliate under Clause 6 of this Agreement, had completion taken place.
9. OBLIGATIONS SHALL SURVIVE
9.1. So far as is applicable, the provisions of this Agreement shall survive the termination of this Agreement.
10.1. The Owner shall not directly or indirectly interfere or attempt to interfere with the provision of the Expiring Domain Name Sales Service and/or the operation of the Website, including any action which may impose an unreasonable or disproportionately large load on Fabulous.coms 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.
11. PERSONAL INFORMATION AND PRIVACY
12. PUBLICATION RIGHTS
12.1. 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 Owners Expiring Domain Names sold through the Service (including the Contract Price), but shall not under any circumstances, publish the identity or other personal information of either the Owner or the Buyer.
13.1. All notices required to be sent under this Agreement shall be sent via e-mail:
(a) If to Fabulous.com, to firstname.lastname@example.org;
(b) If to the Owner, at the e-mail address nominated at the time the Owner registered with Fabulous.com or such other e-mail address as may be nominated from time to time.
13.2. 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.
14. DISCLAIMER OF WARRANTIES
14.1. The Owner agrees that use of the Expiring Domain Name Sales Service and the Website are for use at the Owners 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 Expiring Domain Name Sales Service and/or the Website.
14.2. 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 OR THE EXPIRING DOMAIN NAME SALES SERVICE SHALL BE UNINTERRUPTED, SECURE, OR FREE OF VIRUS OR ERROR.
14.3. Fabulous.com does not make any warranty as to the results that may be obtained from the use of the Expiring Domain Name Sales Service or as to the accuracy or reliability of any information obtained from the Website or the Affiliates websites.
14.4. No advice or information that you may obtain from the Website, an Affiliates website, through the Expiring Domain Name Sales Service or otherwise provided by Fabulous.com shall create any warranty not expressly stated therein.
14.5. Fabulous.com does not screen, review or control the content of the Owners Expiring Domain Name(s) that are being offered for sale on the Affiliates websites, nor does it screen review or control any of the activities or statements of Owners opting in to use the Services.
15. LIMITATION OF LIABILITY
15.1.To the maximum extent permitted by law, Fabulous.com and its related companies, the Affiliate and their directors, officers, employees and agents shall have no responsibility and shall not be liable to the Owner for any and all direct, indirect, incidental, special, exemplary or consequential loss or damage, whether caused by breach of contract, breach of statutory duty, tort (including negligence), wilful acts or omissions, strict liability, the unauthorised or illegal activity of a third party, that arises out of or in connection with the procuring of, provision of or use of the Services.
16.1. The Owner agrees to indemnify, keep indemnified and forever hold harmless, Fabulous.com and its related companies, the Affiliate and their directors, officers, employees and agents, from and against any and all claims, damages, liabilities, costs and expenses (including legal fees on a solicitor and own client basis) arising out of or in connection with the Owners use of the Service.
17.1. Headings are for the convenience of reference only.
18. FORCE MAJEURE
18.1. 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.
19. GOVERNING LAW AND JURISDICTION
19.1. This Agreement is governed by and construed in accordance with the laws of Queensland, Australia and you hereby submit to the non-exclusive jurisdiction of the courts of Queensland Australia.
20.1. If any provision of this Agreement is found to be unenforceable it shall be severed from this agreement and the remaining provisions will remain in full force and effect.
21. NO ASSIGNMENT
21.1. This Agreement and the rights and obligations under it are personal and may not be transferred, delegated, or assigned.
22.1. The waiver or failure of any party to exercise any rights under this Agreement shall not be deemed a waiver or other limitation of any other right or any future right.
23. COMPLIANCE CHECKS
23.1. Fabulous.com reserves the right to periodically monitor the Owners use of the 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.