This Agreement was last updated on June 1st, 2020.
BY PURCHASING A DOMAIN NAME THROUGH THE SITE, YOU REPRESENT AND WARRANT THAT (A) YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO AND ABIDE BY THIS AGREEMENT, (B) YOU ARE AT LEAST 18 YEARS OF AGE, (C) YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A "TERRORIST SUPPORTING" COUNTRY, AND (D) YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES. THE SITE IS INTENDED SOLELY FOR USERS WHO ARE 18 YEAR OF AGE OR OLDER. ANY REGISTRATION BY, USE OF OR ACCESS TO THE SITE BY ANYONE UNDER 18 IS UNAUTHORIZED AND CONSTITUTES A VIOLATION OF THE AGREEMENT.
1. Purchase and Payment.
(a) By submitting any order for one or more domain names owned, controlled and/or otherwise marketed for sale by us or any of our parents, subsidiaries or affiliates through the Site or otherwise (each, a Domain Name), whether by completing an order form on the Site or otherwise (each, an Order), you agree to purchase such Domain Name(s) (each, a Purchased Domain Name) and pay the listed or quoted price for such Purchased Domain Name(s), plus any service fees and/or other charges that may be identified on the Site or in the quote (collectively, the Purchase Price).
(b) If you selected credit card as your payment method, or any other method by which we are to charge or debit an account or card, you authorize DM to debit or charge such account or card the Purchase Price for each Purchased Domain Name.
(c) If you selected as your payment method wire transfer, PayPal or any other method whereby you send us payment, you shall (i) pay the Purchase Price for each Purchased Domain Name in United States dollars and in readily available funds to the account we specify on the Site or in the quote (as applicable) within four (4) calendar days from submission of the Order, (ii) pay all wire transfer, service, and/or other fees and charges assessed by your bank, credit union, PayPal or any other third party in connection with your payment of the Purchase Price and ensure that we receive the full amount of the Purchase Price for each Purchased Domain Name, and (iii) send an email from the email address you provided when submitting your Order to [email protected] after you have initiated payment, and include in the email your Order ID and the Purchased Domain Name(s) so we may track your payment.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, YOU ACKNOWLEDGE AND AGREE THAT ONCE YOU HAVE SUBMITTED AN ORDER AND PAID THE PURCHASE PRICE, YOU MAY NOT CANCEL OR RESCIND YOUR PURCHASE OF THE PURCHASED DOMAIN NAME OR REQUEST OR OBTAIN A REFUND OF ALL OR ANY PORTION OF THE PURCHASE PRICE FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DUE TO ANY MISTAKE OR MISUNDERSTANDING ON YOUR PART WITH RESPECT TO PRICING OR OTHERWISE. You represent and warrant that prior to submitting your Order, and again prior to paying the Purchase Price, you carefully reviewed each Domain Name covered by such Order and the Purchase Price for each such Domain Name and confirmed that they match your understanding and intention, and that you will not seek a refund, credit, chargeback, wire or payment reversal, or otherwise dispute any payment you may make or we may charge in accordance with this Purchase Agreement with your credit card company or other financial institution unless we fail to effect Transfer Completion (as defined below) for the relevant Purchased Domain Name(s) in the manner set forth in this Purchase Agreement, and such failure continues after thirty (30) days’ written notice to us expressly referencing the Purchased Domain Name(s) at issue and your intention to initiate such action or otherwise formally dispute such payment or charge with your credit card company or other financial institution at the end of such period if the failure is not cured. Notwithstanding the foregoing, DM reserves the right, in its sole, absolute, complete and subjective discretion, to voluntarily permit cancellation of any transaction and refund all or any part of any Purchase Price paid (less all bank and/or other transaction fees we may incur to provide such refund) on a case by case basis without any obligation to apply similar standards or exercise such discretion in any similar manner with respect to any other person or entity regardless of any similarity in facts, circumstances, domain names or otherwise.
(e) You acknowledge and agree that we do not guarantee the continued availability of any Domain Name, even after you have submitted an Order and paid the Purchase Price, and that until we effect Transfer Completion (as defined below) of a Purchased Domain Name, we have no obligation to complete any sale or transfer any Domain Name and reserve the right to sell, transfer, donate, withdraw from sale (and use for any purpose), delete the registration for, or otherwise dispose of any Domain Name (including by selling or transferring it to a third party), provided that if we do not effect Transfer Completion of a Purchased Domain Name for which you have submitted an Order and paid the Purchase Price due to lack of availability for sale, we will refund the Purchase Price received by us within seven (7) business days of determining such lack of availability.
2. Domain Name Transfer.
(a) Once you have submitted an Order and we have received the Purchase Price for a Purchased Domain Name, and provided such Domain Name is still available for purchase, we will facilitate transfer of the registration for such Purchased Domain Name to you by doing one of the following (each, a Transfer Method), depending on the then current registrar of the Purchased Domain Name (the Current Registrar), whether you already have an existing account with such registrar and other factors in our sole and absolute discretion:
(i) Creating a new account for you with the Current Registrar using the information you provided us in connection with your Order, transferring the Purchased Domain Name to such account, and then providing you with the login credentials for such account;
(ii) Directly transferring the Purchased Domain Name to an existing account you already have with the Current Registrar by following the Current Registrar’s process for direct transfers and using the existing account information with the Current Registrar you provide us; or
(iii) Providing you an "Auth-Info" code, "AuthInfo" code, "EPP" code, transfer key, transfer secret, EPPT authentication code, or other code or credential, that may be used by any registrar accredited by the Internet Corporation for Assigned Names and Numbers (ICANN) with whom you have an account (a Your Registrar) to effect a transfer of the registration for the Purchased Domain Name from the Current Registrar to Your Registrar (an AuthCode).
(b) We will inform you which of the above Transfer Methods will be employed for each Purchased Domain Name. You acknowledge and agree that (i) our sole obligation with respect to the transfer of any Purchased Domain Name to you is to use commercially reasonable efforts to take the steps outlined in one of the Transfer Methods, which we will endeavor to commence within seven (7) business days of our receipt of the entire Purchase Price for such Purchased Domain Name (which means payment has actually cleared in our account), (ii) your payment of the entire Purchase Price for such Purchased Domain Name is a condition precedent to such obligation and to your ability to take title and/or control of the Purchased Domain Name, (iii) automatically upon our completion of one of the Transfer Methods (which, for purposes of paragraph (a)(iii) above, means that we have provided you the AuthCode), the transfer of the Purchased Domain Name will be deemed complete (Transfer Completion) and you will have sole responsibility for taking all further actions necessary (including the payment of any registrar or other third party fees and/or charges) to (A) secure, take control of, use, maintain and, to the extent desired, renew the registration and ownership of each Purchased Domain Name, and (B) to replace all registrant, technical, admin and other contact and/or identification information associated with the registration as of Transfer Completion with that of your own so that the registration ceases to have any information associated with us and/or any of our affiliates, all of which you agree to do within five (5) business days of the date of Transfer Completion, (iv) if you fail to take all such necessary actions referenced in clause (iii)(A) above within such five (5) business day period, we reserve the right to either (A) rescind and/or make null and void the sale of any relevant Domain Name (in which case we will refund the Purchase Price, less any bank and/or other transaction fees we may incur to provide such refund), or (B) in the event such failure continues more than 14 calendar days following notice of such failure to you via email to the address you provided when you purchased the Purchased Domain, consider the Purchased Domain Name abandoned by you, in which case you will forfeit all rights to the Purchased Domain Name without further notice or refund of the Purchase Price, and all right, title and interest in and to the Purchased Domain Name will revert to us, and (v) we are not responsible for any delays, failures, acts or omissions of the Current Registrar, Your Registrar, ICANN or any other third party that may delay or prevent your ability to take ownership and/or control of the Purchased Domain Name.
(c) You acknowledge that (i) purchasing a Domain Name from us does not result in a renewal or extension of the then current registration term for such Domain Name, and (ii) it is your sole responsibility to determine and maintain awareness of the expiration date of the registration term for each Purchased Domain Name and to renew the registration for each Purchased Domain Name with the registrar of record prior to the then current expiration date for such registration.
(d) In the event any claim, lawsuit, investigation, dispute resolution action (including, without limitation, any action filed pursuant to the Uniform Domain Name Dispute Resolution Policy, the Uniform Rapid Suspension System, and/or any other dispute resolution or rapid takedown policy or procedure adopted or imposed by ICANN), or other legal action is made, brought or filed against us and/or any of our Related Parties (each, a Dispute) relating to any Purchased Domain Name for which we have effected Transfer Completion and for which you have failed to take all of the actions required pursuant to clauses (iii)(A) and (iii)(B) of paragraph (b) above, you acknowledge and agree that we reserve the right to handle such Dispute in any manner we choose in our sole and absolute discretion, including, without limitation, by taking any such actions ourselves, putting forth or filing a defense to the Dispute, settling the Dispute, deleting the registration for the Purchased Domain Name, transferring the Purchased Domain Name to the party initiating the Dispute or any third party, and/or depositing control of the registration for the Purchased Domain Name with any court or tribunal, any and all of which we may do on any terms we may consider necessary or appropriate in our sole and absolute discretion and in all cases with or without informing and/or coordinating with you or any of your representatives.
3. Disclaimer of Representations and Warranties.
(a) DM EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO ANY DOMAIN NAME, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY THAT DM IS THE OWNER OF ANY TRADEMARK OR OTHER RIGHTS ASSOCIATED WITH ANY DOMAIN NAME, ALL OF WHICH ARE BEING OFFERED FOR SALE ON AN "AS-IS" BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (ORAL, WRITTEN OR ELECTRONIC), AS TO WHETHER OR NOT YOU OR ANY THIRD PARTY HAS, MAY HAVE, AND/OR MAY BE ABLE TO ASSERT OR ACQUIRE ANY INTELLECTUAL PROPERTY OR OTHER RIGHT (INCLUDING, WITHOUT LIMITATION, TRADEMARK RIGHTS BASED ON FEDERAL, STATE, LOCAL, INTERNATIONAL OR TREATY REGISTRATION, COMMON LAW RIGHTS OR OTHERWISE) IN, RELATED TO, IDENTICAL TO, OR SIMILAR TO ANY DOMAIN NAME OR WHETHER ANY REGISTERED OR COMMON LAW TRADEMARK EXISTS THAT MAY BE IDENTICAL, RELATED OR CONFUSINGLY SIMILAR TO ANY DOMAIN NAME. IN NEGOTIATING THE PURCHASE OF AND/OR PURCHASING ANY OF THE DOMAIN NAMES, YOU ASSUME ALL RISK OF LIABILITY, INCLUDING WITH RESPECT TO TRADEMARK INFRINGEMENT, CONCERNING ALL SUCH DOMAIN NAMES.
(b) We strongly advise you to conduct a due diligence investigation to determine whether or not there are any legal risks connected to purchase or use of any of the Domain Names. You acknowledge and agree that you are not relying on any promise, guaranty, representation, statement, or warranty, express or implied (oral, written or electronic, and including those made by any customer service agent or other representative of DM), relating to any Domain Name in any way, and that you assume all risk of liability associated with or arising out of your purchase, ownership, registration and/or use of any Domain Name, including, without limitation, with respect to trademark infringement.
4. Your Representations and Warranties.
You represent and warrant that: (a) you have all necessary and sufficient right, power and authority to purchase any Domain Name you purchase on or through the Site, to enter into the Agreement, and to perform all of your obligations required hereunder and thereunder, (b) neither you nor any other person, entity or organization to the best of your knowledge, information or belief has any intellectual property (including, without limitation, trademark) or other right or claim in, similar to, identical to, or related to any Domain Name (each, a Conflicting Claim), (c) you will not ever allege, make or prosecute, or assist any other person, entity or organization in alleging, making or prosecuting, any claim, demand, suit, action or proceeding, in any way based on any Conflicting Claim, and (d) by purchasing a Domain Name, you irrevocably waive any and all Conflicting Claims relating to such Domain Name and forever release DM and our Related Parties from any and all such Conflicting Claims. To the extent that any of the foregoing is determined to be invalid or unenforceable in whole or in part for any reason, you agree that your ability to purchase the Domain Name for the price offered by DM constitutes sufficient consideration in settlement of all Conflicting Claims.
5. Indemnification; Release Limitation of Liability.
(a) You shall indemnify, defend and hold DM and its Related Parties harmless from and against all claims, actions, demands, causes of action, liabilities, losses, damages, expenses, and costs, including reasonable attorneys' and paralegal fees (including on appeal), including, without limitation, those imposed by any governmental body, agency, or authority or other force of Law, arising out of, resulting from, or relating to any of the following (collectively, Claims): (i) your consideration, evaluation, purchase, marketing, use, registration, and/or subsequent offer for sale, sale, or other disposition of any Purchased Domain Name, (ii) your failure to abide by or other breach of any term, condition, covenant, warranty, or obligation set forth, referenced or required in or by this Purchase Agreement or otherwise in or by the Agreement, and/or (iii) the failure of any representation made or deemed to be made by you in this Purchase Agreement or otherwise in the Agreement or otherwise in connection with your purchase of a Purchased Domain Name, to be true and correct in all respects. We reserve the right to take exclusive control and defense of any claim subject to indemnification by you, in which event you will cooperate fully with us in asserting any available defenses.
(b) NEITHER DM NOR ANY OF ITS RELATED PARTIES WILL BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIMS, AND YOU HEREBY FOREVER RELEASE AND DISCHARGE DM AND ITS RELATED PARTIES FROM ALL CLAIMS YOU HAVE OR MAY HAVE FROM THE BEGINNING OF TIME THROUGH THE DATE OF TRANSFER COMPLETION, ARISING FROM OR RELATING TO ANY MATTER DESCRIBED IN CLAUSES (i)-(iii) OF PARAGRAPH (a) ABOVE, AND/OR OUR OR ANY OF OUR RELATED PARTY’S OWNERSHIP, REGISTRATION, OPERATION, SALE, OFFER FOR SALE, AND/OR TRANSFER OF ANY DOMAIN NAME, WHETHER BASED IN TORT, CONTRACT, OR ANY OTHER THEORY OF LIABILITY OR ANY LAW, INCLUDING, WITHOUT LIMITATION, CLAIMS UNDER THE UNITED STATES ANTICYBERSQUATTING CONSUMER PROTECTION ACT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) YOU EXPRESSLY WAIVE ANY AND ALL RIGHTS AND BENEFITS THAT YOU MAY HAVE (IF APPLICABLE) UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE (AND/OR ANY SIMILAR APPLICABLE LAW UNDER THE SAME OR ANY OTHER JURISDICTION), WHICH STATES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
(c) NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, (I) EXCEPT FOR ANY REMEDIES EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT OR ELSEWHERE IN THE AGREEMENT (WHICH ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS YOU MAY HAVE AGAINST DM AND/OR ANY OF OUR RELATED PARTIES ARISING OUT OF OR RELATING TO ANY DOMAIN NAME, THE SITE, AND/OR THE AGREEMENT), UNDER NO CIRCUMSTANCES WILL DM OR ANY OF ITS RELATED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST DATA OR PROFITS, ARISING OUT OF OR RELATING IN ANY WAY TO ANY DOMAIN NAME, THE SITE, AND/OR THE AGREEMENT, EVEN IF ONE OR MORE OF DM AND/OR ANY RELATED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND (II) IN NO EVENT WILL DM’S AND/OR ANY OF OUR RELATED PARTY’S LIABILITY HEREUNDER (COLLECTIVELY), EXCEED THE AMOUNT OF PURCHASE PRICE ACTUALLY PAID BY YOU AND RECEIVED BY DM FOR ANY PURCHASED DOMAIN NAME THAT IS THE SUBJECT OF ANY CLAIM YOU MAY HAVE AGAINST DM OR ANY OF ITS RELATED PARTIES. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, DM’s liability and that of its Related Parties is limited to the greatest extent permitted by applicable Law.
6. Governing Law; Venue.
This Purchase Agreement is governed by and will be construed in accordance with the internal laws of the State of Maryland applicable to contracts made and to be performed entirely therein, and, where applicable, the federal Laws of the United States of America, without reference to and wholly excluding any conflict or choice of law rule or principle that otherwise might refer construction, interpretation or enforcement of this Purchase Agreement to the substantive of Laws of any other jurisdiction, foreign or domestic. All proceedings, disputes, claims and/or controversies in any way relating to or arising out of any Purchased Domain Name, any matter addressed in this Purchase Agreement, the Site, and/or the Agreement otherwise (collectively, Disputes) must be pursued, prosecuted and conducted on an individual basis only and not in a class, consolidated or representative action. In addition, no Dispute between DM and another person or entity may be consolidated by any person or entity other than DM with any other Dispute between DM and any other person or entity. All Disputes must be brought and heard exclusively (a) for those brought by you, in the state courts located in Rockville, Maryland, or, if a basis for federal jurisdiction exists, in the United States District Court for the District of Maryland, Greenbelt Division, and (b) for those brought by us or any of our Related Parties, in the courts referenced in clause (a) above, or in any other court located in a jurisdiction in which you reside, are organized or are incorporated (if applicable), and/or from where you accessed the Site and/or effected the purchase of any Domain Name. You hereby irrevocably consent to the personal and subject matter jurisdiction of such courts and waive any claim that such courts represent an inconvenient or otherwise inappropriate venue or forum. DM controls and operates the Site and makes all decisions relating to Domain Names offered for sale on or through the Site from our offices in Rockville, Maryland and Boca Raton, Florida.
7. Assignment; Successors.
Neither this Purchase Agreement nor any of your duties or obligations under this Purchase Agreement may be assigned by you without our prior written consent. This Purchase Agreement will be binding on you and your successors and assigns and inure to the benefit of you and those assigns we may permit in accordance with the preceding sentence. This Purchase Agreement will be binding on and inure to the benefit of DM, its successors and assigns.
8. Entire Agreement.
This Purchase Agreement and the other elements of the Agreement contain the sole, complete and entire agreement between the parties hereto regarding the subject matter hereof and supersede all prior and contemporaneous negotiations, agreements, commitments, promises, understandings, writings, proposals, representations and communications (whether oral, written or electronic, and whether express or implied) of either party relating to any subject matter contained in, addressed or referenced in any part of the Agreement. No modification or amendment of the Agreement will be effective against DM or any of its Related Parties unless and only to the extent it is set forth in a writing signed by an authorized representative of DM, which authorization must be confirmed by you prior to any reliance thereon. The section titles in this Purchase Agreement are for your convenience only and do not have any legal or contractual effect.
(a) All notices and other communication required or permitted to be given by you under this Purchase Agreement must be in writing, in English, and delivered to us (i) personally, (ii) by certified US mail, postage prepaid, return receipt requested, or (iii) by express mail via an internationally recognized express mail carrier, in each case to the following address, which notices and communications will be effective on the date of delivery or refusal of delivery as confirmed by the return receipt or tracking information (as applicable): DomainMarket, LLC, 102 NE 2nd Street #217, Boca Raton, FL 33432-3908.
(b) All notices and other communication required or permitted to be given by us under this Purchase Agreement must be in writing, in English, and delivered (i) personally, (ii) by certified US mail, postage prepaid, return receipt requested, or (iii) by express mail via an internationally recognized express mail carrier, or (iv) via electronic mail, in each case to any physical or electronic mail address you provided us or on or through your use of the Site or in any other correspondence, which notices and communications will be effective (A) for methods (i) through (iii), on the date of delivery or refusal of delivery (as confirmed by the return receipt or tracking information, as applicable), and (B) for method (iv), one business day after they are sent by us, as evidenced by our electronic mail records.