NAMEDRIVE
GENERAL TERMS OF SERVICE
These terms and conditions (“Agreement”) apply to and upon your access
and/or use of the NameDrive, LLC (“ND”, “us” or “we”) website at namedrive.com
or any affiliated website (each such site a "Site") and/or use of any
of our services available under or through the site ("Services").
“You” and “your” refer to you or the person/entity on whose behalf you are
acting.
1. AGENTS. If you are acting as an agent of another, you
are representing that you have the authority to bind your principal to all
terms and conditions in this Agreement. A breach of this Agreement by your
principal or licensee will be considered a breach by you. If you are acting through an agent, you are
agreeing that, if your agent (e.g., employee, legal counsel, investigator,
etc.) used our Service(s) on your behalf, you are bound as a principal by all
in this Agreement. Your continued use of
our services will ratify any unauthorized actions of your agent. You are
responsible for any errors made by your agent and a breach of this Agreement by
your agent will be considered a breach by you.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT, THEN DO NOT USE OR ACCESS OUR SITE/SERVICES.
Upon opening an account you will be provided with a user name and
password. It is your responsibility to
protect this information and prevent unauthorized use of your account. You will be responsible for all activities
undertaken using the Site and/or Services, including those undertaken by others
using your user name and password.
2. INCORPORATION OF OTHER
DOCUMENTS. These are general terms and are supplemented
by the terms described in the [Privacy Policy], [NDX Market Platform Terms], [Sellers’ Listing Policies], [Buyer’s Policies],
[Parking Rules],
and [Infringement Notification Policy]
(each an “Other Document”), each of which are incorporated herein by reference.
3. LANGUAGE. The
English version shall control as to any conflicts amongst any various language
translations that may be provided.
4. ELIGIBLE USERS. You may not use our Site or Services if:
(a) you are not at least 18 years old, (b) you lack legal capacity to enter
into legally binding contracts, or (c) use of the Site or Services is
prohibited by law in the country where you are located. We may require further information or your
satisfaction of our NDX Market Certified Trader
policies prior to use of certain Services.
ND reserves the right to limit or refuse access to the Site or
any Service.
5. ACCEPTABLE USE OF THE SITE AND OUR SERVICES. You may not use a Site or any Services provided
through or in connection with a Site to: (a) defame, abuse, harass, threaten or
otherwise violate the legal rights (such as rights of privacy and publicity) of
others; (b) conduct or forward illegal contests, pyramid schemes, or chain
letters; (c) publish, post, distribute, disseminate or link to any: (i)
inappropriate, profane, defamatory, infringing, obscene, adult content, nude,
indecent or unlawful topic, name, material or information; (ii) software or
other material protected by intellectual property laws, copyright licenses,
rights of privacy or publicity, or other proprietary rights, unless you own,
control such rights or have received all necessary consents for your use of
such software and other materials; (iii) software or other material that
contains viruses, corrupted files, or that may or are intended to damage the
operation of another’s computer (e.g., "cracks," "hacks,"
or other programs written to defeat the security measures of any computer, system
or program(s)); (d) sell, distribute, disseminate or link to any sites for
marketing, sales or distribution of: firearms, explosives, ammunition, liquor,
tobacco products, food that is not packaged or does not comply with all
applicable laws for sale to consumers by commercial merchants, pharmaceuticals
and controlled substances, counterfeit, pirated or stolen goods, fraudulent
goods, any goods or services that infringe or otherwise violate a third party’s
rights, registered or unregistered securities, goods or services that: (i) you
cannot legally sell, (ii) are misrepresented, and/or (iii) if sold, would cause
ND to violate any law, statute or regulation; (e) harvest or otherwise collect
information about third parties, including email addresses, without the express
consent of such third parties; (f) restrict or inhibit any other user from
using and enjoying its rights in the Services or the Site, interfering with or
disrupting the Services or the Site service or servers or network connected to
the Site; (g) use a Domain in connection with your use of the Site that is
confusing or misleading to other Site users or to the public; (h) email or
otherwise transmit, distribute, publish or disseminate any junk email, spam,
chain letters, pyramid schemes, or any other form of duplicative or
inappropriate solicitations or messages (commercial or otherwise); (i) violate
the rights of any third parties, including, but not limited to, trademark,
naming or publicity rights, or (j) violate any applicable government laws or
regulations. ND does not condone or allow spam. You may not use the Site or our Services to
advertise, promote, market or solicit offers to acquire goods/services that
compete with our Services or Site. ND
will cooperate with legal authorities and Internet service providers in
releasing information about users who violate this Agreement or any
incorporated terms and conditions.
6. PRIVACY AND
CONFIDENTIALITY. We make every effort to respect privacy
rights. Solely to enable ND and its
affiliates to use your information without violating any rights you might have
therein, you hereby grant us a non-exclusive, worldwide, perpetual,
irrevocable, royalty-free, licensable right to exercise the copyright,
publicity, and database rights (but no other rights) you have in your information,
in any media now known or not currently known, with respect to your
information. ND shall use personal
information obtained from you in accordance with its [Privacy
Policy]. ND reserves the right
to disclose any information, communication, or materials as necessary to
satisfy any applicable law, regulation, legal process or government request, or
to edit, refuse to post or to remove any information or materials, in whole or
in part, from a Site, in ND’s sole discretion, without notice at any time. Except as expressly permitted, you shall not
share any information provided to you by or on behalf of ND with any third
party.
7. FEES. Access
to the Site and many of our Services may be without charge but that will not
alter the binding effect of this Agreement.
Fee-based Services are provided at rates periodically published on the
Site. Unless otherwise specified in any
Other Document, fee
modifications are effective and binding as of the date published. No advance notice is required for any
prospectively effective change in Services offered or fees charged
therefore. Before using any of our
chargeable Services, you will be asked to review and accept the fees applicable
to that particular Service. Unless
otherwise stated, all fees are due in United States Dollars. Fees are non-refundable and due in advance of
Services or upon presentation of invoice and must be paid in valid funds
without offset or deduction of any nature.
You are responsible for all sales, use, value-added and other taxes
(“Taxes”) (other than those assessed solely on the basis of ND’s income) which
are applicable to you or the Services provided and you agree to accurately and
timely report and pay all such taxes, regardless of when assessed.
8. TERM AND TERMINATION. You remain bound
by this Agreement until and unless this Agreement is properly terminated. ND may terminate this Agreement and/or your
access to the Site or any Services at any time, with or without cause or notice,
and without liability. You may terminate
the Agreement provided that you have no outstanding payment or other
obligations due to ND or any other user regarding any Services provided. Notwithstanding termination of this Agreement
by ND or you, the provisions of Sections 3, 6, 7, and 9 through 17 shall
continue in full force and effect. Upon
termination, you will no longer have access to any data or information you had
previously created, maintained, managed, or stored in or through the Site and
ND is under no obligation to maintain any such data or information.
9. LIABILITY DISCLAIMER AND INDEMNIFICATION. ND will not be responsible for any act or
omission of you or any third party, including, without limitation, any failure
of any person to perform any contractual or other obligations to you, ND or any
third party and any violation of intellectual or privacy rights.
Although ND may periodically monitor the Site, user behavior, intellectual
property, or privacy matters, you agree that ND has no obligation to do so or
to take any action whatsoever, including verification of ownership of, or
non-infringement of any intellectual property or privacy right. You agree not to sue ND in connection with
any domain name ownership dispute or any claim that a domain name violates the
intellectual property rights of you or any third party.
ND is not responsible for the content or your use of any web site linked to
or from the Site or Services (even if such link is provided by ND). ND does not make any warranty or representation
regarding any listed Domain Name, including, without limitation, ownership or
revenue or traffic statistics. Any
revenue, traffic or other statistics or information is provided “as-is” and
without representation or warranty of any nature and ND may not be held liable
for any inaccuracy thereof, even if such information was provided regarding a
Domain Name monetized using any Service.
YOUR USE OF THE SITE AND/OR
SERVICES, INCLUDING ANY DATA PROVIDED, IS AT YOUR SOLE RISK. THE ACCURACY, CONDITION AND AVAILABILITY OF
THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY
KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ND
MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR NEEDS, OR BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
ND MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED, ACCURACY OR
RELIABILITY OF ANY INFORMATION OBTAINED, OR ENFORCEABILITY OF ANY CONTRACT
PROVIDED FOR USE BETWEEN YOU AND ANY THIRD PARTY.
IN NO EVENT SHALL ND, ITS
AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS
BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, OR THIS AGREEMENT
(HOWEVER ARISING, INCLUDING GROSS NEGLIGENCE). WITHOUT AFFECTING THE
LIMITATIONS OF LIABILITY IN THIS SECTION, THE LIABILITY OF ND, AND/OR ITS
AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND
SUPPLIERS, TO YOU OR ANY THIRD PARTIES IS LIMITED IN ALL CIRCUMSTANCE TO THE GREATER OF (A) THE AMOUNT OF FEES
YOU HAVE PAID TO US IN THE six (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO
LIABILITY, OR (B) $100.
YOU AGREE TO INDEMNIFY,
DEFEND, AND HOLD ND AND ANY PARENT, SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR,
AGENT, AND EMPLOYEE (EACH AN “INDEMNITEE”) HARMLESS FROM ANY LOSS, LIABILITY,
EXPENSE, CLAIM OR DEMAND (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY
“CLAIM”), ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH (i) ANY
ACT OR OMISSION BY YOU, INCLUDING, YOUR USE OF THE SITE OR ANY SERVICES OR YOUR
BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT WITH ANY THIRD PARTY OR WITH ND
, INCLUDING ONE INCORPORATED BY REFERENCE, (ii) YOUR VIOLATION OF ANY LAW OR
THE RIGHTS OF ND OR ANY THIRD PARTY, INCLUDING ANY ALLEGED OR ACTUAL VIOLATION
OF ANY INTELLECTUAL PROPERTY OR PRIVACY RIGHTS, AND/OR (iii) ANY ACT OR
OMISSION ON THE PART OF ANY INDEMNITEE (PROVIDED THAT YOU SHALL NOT BE
OBLIGATED TO INDEMNIFY AS TO ACTS OR OMISSIONS BY INDEMNITEES TO THE EXTENT
SUCH CLAIM AROSE AS A DIRECT CONSEQUENCE OF AN INTENTIONAL ACT BY SUCH
INDEMNITEE).
If ND elects to control its defense ND may settle or resolve such Claim in
its sole discretion and foregoing indemnification shall still apply. If ND elects not to control its defense you
will do so. However, you may not settle
or resolve any such Claims without our express written consent unless the
resolution requires a withdrawal or dismissal (with prejudice), or full and
final release in our favor of all Claims asserted against us), all without
admission of liability, payment obligation, or agreement to refrain from any
undertaking, on the part of ND or any Indemnitee.
Any claim or cause of action arising out of or related to this Agreement,
the Site, or any Services, must be commenced within one (1) year after the
cause of action arose; otherwise, such cause of action is permanently barred.
NO STATEMENTS, ADVICE OR
INFORMATION PROVIDED TO YOU BY ANY ND EMPLOYEE OR REPRESENTATIVE MAY CREATE ANY
OTHER WARRANTY OR ALTER THE PROVISIONS OF THIS SECTION.
The provisions in this Section shall apply to the fullest extent permitted
by law.
10. INTELLECTUAL PROPERTY. Except materials provided by you and accepted by us (“your data”), you may not
modify, copy, distribute, transmit, display, perform, reproduce, publish,
license, create derivative works from, transfer, or sell any information,
software, products, services or benefits obtained from the Site, except as
expressly provided herein. Except as to
your data, all content, database information, data and services available on,
and collected as a whole through this Site, are property of ND, its affiliates,
advertisers and licensors, and are protected by copyrights, trademarks, service
marks, patents, trade secrets, and other proprietary rights and laws in the
United States and internationally.
“NameDrive,” and “NDX Market” are trademarks of NameDrive, LLC. Other names, products or services that may be
mentioned in the Site may be the trademarks of their respective owners. All rights reserved.
If you believe that the Site or any third party using the Site or Services
is infringing or violating your intellectual property rights, you must follow
the instructions in our [Infringement Notification Policy].
11. YOUR REPRESENTATIONS AND WARRANTIES. In addition to those stated elsewhere, you
represent and warrant to ND that: (a) you
have all necessary legal, corporate or other
power and authority to make, execute, deliver and consummate this Agreement and
perform all of your stated obligations; (b) this Agreement is valid and binding
upon you; and (c) you will not use the Site or Services in violation of any
applicable law, rule, regulation, or agreement with any third party (including
any ICANN policy), or in any manner that infringes upon the contractual,
intellectual property or privacy rights of any third party.
12. MODIFICATIONS. Although
we will generally strive to
provide 10 calendar days notice of any amendments, ND may amend or replace this
or any incorporated terms and conditions at any time without notice. Changes will be posted on the Site and shall
become automatically be effective on the earlier
to occur of (i) 12:01 AM on the date posted by ND, or (ii) upon your accessing
the Site and/or use of any Services following the date of posting. Other than posting amendments on the Site,
ND shall not be obligated to provide any other form of notice and you should
carefully review the Site periodically to alert yourself to any possible
changes. Except as noted in this Section
above, this Agreement may not be amended or modified except in a writing signed
by you and ND.
13. TIMING.
Submittals of
information to the Platform or to any user account, including, without
limitation, domain name listings. Pricing, auction bids, Offers,
Counter-Offers, and acceptances, as well as any deadlines or beginning and
ending dates and times for auctions, are all effective upon the date and time
applied by ND in its operation of the Platform regardless of the date or time
in your specific location. Dates and
times are generally the date and time of posting as recognized by ND in
Vancouver, British Columbia, Canada (or such other location as ND may locate
its relevant servers). Any date or time
indications, including, without limitation time-remaining information as to
auctions is provided without warranty of any nature. ND assumes no responsibility for failure to
accurately or otherwise time-stamp any information submitted, including,
without information, any auction bids, Offer, Counter-Offer or acceptance or to
timely or otherwise publish or communicate any Offer, Counter-Offer or acceptance.
14. CONTACTING EACH OTHER. You accept notices (including service of process) by any of the following means: (i) posting on the Site or within a notification system associated with your account, (ii) to the address, email or fax listed in your account, or (iii) transmission to the address, fax or email address contained in the WHOIS associated with any domain name associated with or listed in your account. Notice to you will be effective immediately upon personal delivery, 24 hours following posting to the Site or transmission by email or fax, and 72 hours following delivery to a governmental postage service or commercial courier (provided we have paid all fees for first-class or next-day service).
You may contact us using the information
below. For infringement matters you must
follow the instructions in the [Infringement
Notification Policy]. Your notice
to us is effective only upon our confirmation of our actual receipt.
General
Inquiries: Mail:
NameDrive LLC, 2141 Wisconsin Ave, Suite C-2, Washington, DC, 20007, USA, Tel:
+1 585 672 5108, Fax: +1 585
672 5108, Email: info@namedrive.com
User Service
& Support: Tel: +1 585
672 5108, Fax: +1 585 672
5108, Email: info@namedrive.com
15. DISPUTES – ANY DISPUTE UNDER
$10,000 SHALL BE ARBITRATED IN MONTGOMERY COUNTY MARYLAND USING THE MONTGOMERY
COUNTY MARYLAND CIRCUIT COURT ARBITRATION SYSTEM.ALL HEARINGS SHALL BE HELD IN
SAID COURT. ANY DISPUTER WHERE THE CASE IN CONTROVERSY IS EQUAL TO OR IN EXCESS
OF $10,000 SHALL BE DECIDED BY A COURT OF LAW.
THE ONLY COURT OF LAW SHALL BE THOSE IN MONTGOMERY COUNTY MARYLAND
UNLESS THE DISPUTE MUST BE VENUED IN A FEDERAL COURT IN WHICH CASE IT SHALL TAKE
PLACE IN GREENBELT, MARYLAND.
DISPUTES UNDER $10,000 - DEMAND FOR ARBITRATION
SHALL BE MADE WITHIN A REASONABLE TIME AFTER THE CLAIM, DISPUTE, OR OTHER
MATTER IN QUESTION HAS ARISEN (AND IN NO EVENT AFTER ONE (1) YEAR FOLLOWING
DATE UPON WHICH THE CLAIM FIRST AROSE). NOTICE SHALL BE SERVED UPON ALL PARTIES
AND THE ARBITRATION SERVICE. ANY
ARBITRATOR SHALL BE EXPERIENCED IN THE SUBJECT MATTER CONCERNED. IN REACHING THEIR AWARD, THE ARBITRATORS
SHALL FOLLOW AND BE BOUND BY THE SUBSTANTIVE LAW OF MARYLAND TO THE SAME EXTENT
AND AS IF THEY WERE JUDGES IN A COURT OF LAW THEREIN; PROVIDED NO AWARD MAY
INCLUDE PUNITIVE OR EXEMPLARY DAMAGES (OR THOSE CALCULATED APPLYING ANY
MULTIPLIER), OR DAMAGES FOR EMOTIONAL DISTRESS OR IN EXCESS OF ANY STATUTORY
MINIMUM. THE AWARD SHALL BE IN WRITING,
SHALL CONTAIN FINDINGS OF FACT AND CONCLUSION OF LAW, AND SHALL SET FORTH THE
NATURE, AMOUNT, AND MANNER OF CALCULATION OF DAMAGES. THE AWARD SHALL BE FINAL AND
NON-APPEALABLE. ACCORDINGLY, THE PARTIES
HEREBY EXPRESSLY WAIVE THEIR CONSTITUTIONAL AND OTHER RIGHTS TO A TRIAL BY
JUDGE AND/OR JURY AND THEIR RIGHT(S) TO RECOVER PUNITIVE, MULTIPLE OR EMOTIONAL
DISTRESS DAMAGES.
DISPUTES EQUAL TO OR IN EXCESS OF $10,000 - NO
COURT MAY ISSUE AN AWARD WHICH NAMEDRIVE MUST PAY THAT INCLUDES PUNITIVE OR
EXEMPLARY DAMAGES (OR THOSE CALCULATED APPLYING ANY MULTIPLIER), OR DAMAGES FOR
EMOTIONAL DISTRESS OR IN EXCESS OF ANY STATUTORY MINIMUM. NAMEDRIVE MAY ASK FOR
PUNITIVE OR EXEMPLARAY DAMAGES.
16. BREACH.
Any failure of performance by you under this agreement may be considered
by us to be a material breach of this Agreement. In event of your breach, we may take any
action allowed by law, including, without limitation, termination of access or
withholding of funds or further service, all without liability to you. We may (but are not required to) give you
written notice describing the breach and give you an opportunity to cure or
establish to our satisfaction that you have not in fact violated your
obligations. Giving such notice is a courtesy
shall not require that we refrain from undertaking any action. If you are paid
an amount which is a mistake and is demanded back by NameDrive and you fail to
comply then this shall be considered breach.
Accordingly, you agree to assist
and sign any documents necessary to facilitate the return of any mistake
funds. You specifically grant to NameDrive personnel the right to sign any such
documents necessary to fix any of such problems. If you fail to facilitate the return of any
funds directed to your account by mistake then you understand and agree that
you will be liable for said funds, associated interest as well as attorneys
fees, costs and any punitive damages awarded by a Court or Arbitrator.
17. GENERAL.
This Agreement is governed by the laws of Maryland, USA, without regard
to its choice of law rules. You consent to the jurisdiction of, and venue in,
courts located in montgomery County Maryland or Greenbelt Maryland as to any
disputes arising out of or relating to the Site or your use of any Services. Use of the Site is unauthorized in any
jurisdiction that does not give effect to all provisions of this
Agreement. We are independent
contractors only and you agree that notwithstanding any other statement in the
Site or in any Agreement provided to you, no joint venture, partnership,
employment, or agency relationship exists between you and ND. Our performance of this Agreement is subject
to existing laws and legal processes, and nothing contained in this Agreement
is in derogation of our right to comply with governmental, court and law
enforcement requests or requirements relating to your use of the Site,
Services, or information provided to or gathered by ND with respect therewith.
If any part of this Agreement is determined to be invalid or unenforceable
pursuant to applicable law, including, but not limited to, the warranty
disclaimers and liability limitations set forth above, then the invalid or
unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision and
the remainder of the Agreement shall continue in effect. Unless otherwise
specified herein, this Agreement constitutes the entire agreement between you
and ND with respect to the Site and Services and supersedes all prior or contemporaneous
communications and proposals, whether electronic, oral or written, between you
and ND with respect to the Site or Services. A printed version of this
Agreement and of any notice given in electronic form shall be admissible in
judicial or administrative proceedings based upon or relating to this Agreement
to the same extent and subject to the same conditions as other business
documents and records originally generated and maintained in printed form, and
any such printed, true, and accurate copy shall be deemed an original document
for evidentiary purposes. No waiver is
caused by any failure or delay to exercise or enforce any right or provision of
this Agreement. You may not assign or delegate all or any part of your rights
or obligations hereunder to any third party (including receipt of any moneys
due) absent our express consent and any such assignment shall not relieve you
of your obligations. ND may freely
assign or delegate all or any part of its rights or obligations under this
Agreement without prior notice or consent.
NAMDRIVE DOMAIN PUBLISHING PROGRAM TERMS
NameDrive's
Domain Publishing Program (“DPP”) allows you to park your domains. For a domain
to be listed with the DPP, the domain must be enetered in your account and directed to the DPP either via a
URL or Nameserver. The forwarding URL address is
http://www.ndparking.com/domainname.com where domainname.com is replaced by the
user’s domain. The Nameservers for DNS change are: ns1.fastpark.net
ns2.fastpark.net. By forwarding your domains to the DPP, you understand that
NameDrive (“ND”) or any of its partners will put advertisements on them and you are liable for any and all consequences that has.
1)
TRAFFIC: Traffic
on domains in the DPP can originate from two sources only: Type in (direct
navigation) traffic and existing search engine results / expired traffic. ND
reserves the right to exclude domains with non-converting traffic from the
system at any time.
2)
TRAFFIC SOURCES:
Traffic promotional methods not allowed include, but are not limited to: Blog sites / forums, TGP Gallerys, bought
traffic (PTR/PTC), Arbitrage traffic
driven by PPC campaigns (Adwords etc.), traffic directed from hyperlinks etc.
are not permitted. If your traffic originates from any sources other than
type-in and search engine traffic, it must first be approved by ND. Regular
checks are carried out and ND reserves the right to suspend any domain from its
DPP if the traffic on that domain is believed to be bought, generated or
redirected in any way that contravenes these terms and conditions. Users may
periodically view their parked pages to ensure they are correctly set up but
are not permitted to click any of the advertising links. Traffic may not be
redirected from another domain to a domain parked on the DPP. All traffic to a
domain must either be type in traffic or link traffic for that specific domain,
not redirected from another domain, either on the DPP or another domain outside
the DPP. Clicks made on parked pages can ONLY originate from real, unique visitors
clicking on the advertising. Clicks can in no way be incentivized Clicks may not be generated by asking
friends, family, members of the public or anyone else to click on the
advertising links on your parked page. You may not use robots, software systems,
arbitrage or any other method to artificially modify the number of views,
clicks, CTR, PPC, RPM or revenue away from that driven by regular Internet
users (not including, but not limited to, yourselves, employees, associates,
partners, etc.). Evidence of this will result in the domain immediately being
blocked and the earnings withheld. Neither traffic nor clicks may be generated
by any non-human source – e.g. bots. ND
wishes to maintain a fair, transparent platform. However click fraud and
parking fraud are not tolerated. Any major breach of these terms will result in
an account being suspended and the earnings being withheld in persistent
cases. If ND believes that there might
be fraud then ND reserves the right to withhold any funds which might result
from the fraud for a period of no less then six months in order to ascertain if
there really has been such fraud and permanently if such fraud is ascertained. ND is partners with a third party from
whom it obtains its advertising feed. This third party has reserved the right
to claim that traffic is fake or fraudulent and to retain earnings, whether
already paid to a customer or pending payment, in its sole discretion. You agree that the decision as to whether there is or is not fraud shall
be decided by ND and/or its advertising partners’ sole discretion.
3)
DISPLAY METHODS:
Domains in the DPP must be displayed as delivered by ND and advertising partners. Pages may
occasionally be displayed in I-frames or with other embellishments. However,
all alterations to a parked page must be approved BEFOREHAND by ND.
4) DOMAINS: Domains listed in a user's NameDrive account must be the property of
that user or their direct partner. Users found to be listing other persons'
domains may have their accounts suspended and earnings withheld.
Welcome to the NameDrive, LLC (“ND”) NDX Market Services. This document sets forth the terms generally applicable to your use of the NDX Market Platform (“Platform”) and any NDX Market Services including those available at namedrive.com (the “Site”). These Terms incorporate by reference the [ND General Terms], [Sellers’ Listing Policies], [Buyer Policies], and [Offensive Domain Policy] as if each were stated in full herein and by using any of the NDX Market Services you agree to be bound thereby.
GENERAL DESCRIPTION. The NDX Market Platform is a neutral marketplace location where NDX Market
Users may use various formats to buy or sell domain names subject to compliance
with applicable rules found herein and in any incorporated agreements, terms or
conditions. Although we may use terms
such as “auction” and we may assist in the smooth transfer of domain names and
funds, we are not an auctioneer or escrow provider. Rather we provide a neutral platform and
transaction management in connection with transfer of funds and domain
names.
As a neutral provider ND is not a party to any relationship as between any
Buyer or Seller. Notwithstanding that we
may at any point exercise control over a domain name or funds during the transaction,
we are not the Buyer, Seller, lessee, or lessor. As such ND will have no liability to you or
any third party as to the registration or use of any domain names while they
are listed, sold or being processed for transfer.
Use of the Site (but not all Services) is generally free of charge. However, to access actual Services you must be an “NDX Market User” and have a user name and password. You must be a Certified Trader to make bids or offers over limits established by ND, participate in auctions or use the “Fixed” or “Buy-Now” pricing functions. Certified Trader status requires you to submit an NDX Market Certified Trader application to be approved or rejected in our discretion.
Using the Platform you may buy or sell a domain name using our NDX Market
Direct Sales or NDX Market “Auction” Services.
Each Service has specific rules that may apply. ND may post other or different rules
regarding particular Auctions and you must agree to such specific rules as a
condition to participation.
Those listing domain names for sale on the Platform are “Sellers” and those
making offers to purchase domain names listed by Sellers are “Buyers” or
“Bidders”.
Communications regarding domain names and transactions are generally by
email using information provided by the NDX Market User. Buyers and Sellers may only communicate with each other using the Platform notification
system. Buyer and Seller may not communicate outside of the Platform regarding any Listed
Domain or any offers or pending transaction.
In using the Platform notification system, users may communicate
publicly (seen by all Users viewing the listing) or privately (directed only to
a specific user regarding the Listed Domain).
We do not guarantee that any particular bid or response will be transmitted
to the intended recipient.
ND will not be liable or otherwise responsible for any information
provided, or any communications as between Buyer and Seller. Buyer and Seller are responsible for having
conducting all research necessary to satisfy themselves regarding any Listed
Domain, including without limitation, any revenue, traffic statistics and
ownership, and any applicable agreements, rules, regulations and fees
applicable to the acquisition and transfer of any domain name. Information regarding a Listed Domain is
provided by the listing User and ND has neither verified nor will be liable for
any inaccuracy.
These terms and linked documents may be provided in various languages but
the English language versions shall control in the event of any conflict.
LISTING DOMAINS. Subject
to these Terms, any user may list Domain names for sale using Direct Sales
Services or Auction Services. Upon
acceptance into the Platform, the domain name becomes a “Listed Domain”. ND reserves the right, but not the
obligation, to refuse or reject any domain name for listing or to remove any
previously Listed Domain. Listing domain
names is also subject our [Sellers’ Listing Policies],
[Buyer Policies], and [Offensive Domain Policy].
Sellers may remove a Listed Domain they have listed in the Platform at any
time by deleting the domain name from their account. A Listed Domain may not, however, be removed
if it is a “Restricted Domain”. A
Restricted Domain is one that is subject to an outstanding Offer or
Counter-Offer (see below) or as to which there is a commitment to buy/sell, or
a pending auction or transfer. See below regarding Fees and exclusivity.
Sellers shall at their own cost renew and maintain registrations for all
Listed Domains while they are Restricted and shall remove from their account
all Listed Domains they no longer own.
ND may, without obligation, pay registration fees as to any Restricted
Domain name and if paid may recover same from (in ND’s sole discretion) either
Seller or Buyer.
You may use Direct Sales Services to sell domain names at a “Fixed”, “Buy
Now” or “Minimum” price for any Listed Domain.
However, any such listing is a binding Offer by you to sell the Domain
at the stated price and such Offer will be irrevocable until modified and
such modification is reflected in the Platform (regardless of when modified by
you). Fixed, Buy-Now, or Minimum prices
may not be modified if such has been accepted by another NDX Market User prior
to the modification being reflected on the Platform.
In using Auction Services to sell domain names, you may specify a “Reserve”
bid but if you do so, such is a binding Offer by you to sell the Domain at the
stated price. Any such Offer is
irrevocable during the pendency of any Auction.
Consider your actions carefully as you will be obligated to sell the
Listed Domain to the User having placed the highest bid as of the end of the
auction; provided in any case, however, that a Seller is under no
obligation to sell the domain name to any User whose bid did not exceed the
Reserve or Minimum price..
All Offers, Counter-offers and all Fixed, Buy-Now and Reserve pricing is
not inclusive of all sales, use, value-added or other taxes that may be due,
save only those taxes assessed on income retained by ND.
The absence of a Fixed, Buy Now or Reserve price indicates only that the
Domain listing is an invitation for other NDX Market Users to submit offers.
As a Seller you are solely responsible for any information provided as to
any Listed Domain, including, without limitation, any revenue or traffic
statistics, even if the Listed Domain is being monetized through an NDX Market
Service or such information was obtained as a result of any ND Service. By entering any Listed Domain, you are making
the representations and warranties regarding the Domain found in these terms,
including those set forth in the [ND General Terms]
and the [ND Domain Transfer Agreement].
MAKING OFFERS/COUNTER-OFFERS. Subject
to these Terms, any NDX Market User may search the database and make offers to
purchase any Listed Domain (“Offer”).
Offers are made by following the relevant instructions presented and
specific auction rules may apply. All
Offers and Counter-Offers shall be stated in whole numbers only. You must review your offers carefully. Offers
are made upon entry and remain binding and irrevocable for the relevant “Offer
Period” (defined below). Except as
noted in Listing Domains, above, any NDX Market User may respond to an Offer
with a rejection or Counter-Offer. A
Counter-Offer constitutes a rejection of any prior Offer and the presentment of
a new Offer for the purposes of this Section.
Offers are not inclusive of all sales, use, value-added or other taxes that
may be due, save only those taxes assessed on income retained by ND.
By submitting any Offer, the party making the Offer is agreeing to purchase
the Listed Domain at the price and Currency stated in the Offer, and pursuant
to the ND Domain Transfer Agreement.
Once made, an Offer may be accepted by the Seller at any time during the
Offer Period.
The Offer Period shall continue and remain binding and irrevocable until
the earlier of: (i) 168 hours
after being posted on the Platform; (ii) rejection by the Seller; or (iii)
Seller’s providing a counter-offer.
Offers made during Auctions shall remain binding through the ending of
the auction; at the close of the auction, the highest Offer shall be deemed
accepted by the Seller. Upon expiration
of the Offer Period, the Offer shall automatically expire and become void and
without effect - thus no longer binding upon the party having submitted it.
For avoidance of doubt, a Fixed, Buy-Now or Reserve price is a binding
Offer by the Seller and any response of a Buyer agreeing to the stated price
and currency constitutes a binding acceptance.
A belated attempt to accept an Offer or a Counter-Offer shall be considered
to be a new Offer.
Mistake does not relieve an NDX Market User from their obligations to
purchase or sell a Domain once a binding offer has been made and/or accepted.
CURRENCY.
Currency is selected by the Seller during the listing process and may
not be changed by Buyer or Seller during the course of negotiations. Seller may
change the Currency as to any Listed Domain if there are no then pending Offers
or the Listed Domain is not subject to a Pending Auction. ND may provide a currency conversion tool for
your use. However, results from such
tool are not official and ND shall not be responsible for any currency loss or
conversion.
A WORD ABOUT TIMING. Offers, Counter-Offers and communications of acceptance can be made by any
NDX Market User and ND does not guaranty acceptance or success as to any
Offer/Counter-Offer. NDX Market makes
reasonable efforts to process information received by NDX Market in a timely
manner and on a first-come-first-served basis.
Thus, for example, while you may undertake to submit information such as
an Offer, Counter-Offer or acceptance to a Fixed or Buy-Now price, your
response may not be the first made and although binding upon you, it may not be
binding upon the Seller (who may have accepted or become bound by another
offer/counter-offer bearing an earlier time-stamp).
Submittals of information to the Platform or to any user account,
including, without limitation, domain name listings. Pricing, auction bids,
Offers, Counter-Offers, and acceptances, as well as any deadlines or beginning
and ending dates and times for auctions, are all effective upon the date and
time applied by ND in its operation of the Platform regardless of the date or
time in your specific location. Dates
and times are generally the date and time of posting as recognized by ND in
Vancouver, British Columbia, Canada (or such other location as ND may locate
its relevant servers). Any date or time
indications, including, without limitation time-remaining information as to
auctions is provided without warranty of any nature. ND assumes no responsibility for failure to
accurately or otherwise time-stamp any information submitted, including,
without information, any auction bids, Offer, Counter-Offer or acceptance or to
timely or otherwise publish or communicate any Offer, Counter-Offer or
acceptance.
ACCEPTANCE AND AGREEMENT. Acceptance occurs the moment that a Buyer and
Seller reach agreement as to the Price and Currency for any Listed Domain. In a Direct Sales context, this occurs upon
acceptance of an outstanding Offer during the Offer Period. In the Auction context, acceptance occurs
upon the end of the Auction whereupon the highest bid exceeding any stated
Reserve is deemed accepted. As noted
above, you will become bound to purchase a Listed Domain name at Auction if a
Bidder having submitted a higher Bid does not timely complete the transaction
and your Bid exceeds the stated Reserve.
All acceptance and all sales are concluded using the [ND Domain
Transfer Agreement] (“DTA”) which you should read carefully. You will be required to agree to the terms of
the DTA before submitting or accepting any offer. ND reserves the right to require that you
sign a printed version of the DTA in addition to any click-through
version. Notwithstanding a request for
physical signatures, by submitting a Fixed or Buy-Now price, by indicating
acceptance of an offer, or otherwise clicking an “I Agree” or “Confirmation”
button on the Platform, such party has become legally bound by the ND Domain
Transfer Agreement in all respects as if and to the same extent as if such
party had signed the ND Domain Transfer Agreement in writing. The DTA is subject
to change and the published version existing as of the formation of any
agreement will be controlling.
Buyer and Seller agree to cooperate fully and timely with each other and
with ND, to respond to ND requests and to fully perform their respective obligations
under the ND Domain Transfer Agreement.
EXCLUSIVITY AND
NON-CIRCUMVENTION. Subject to certain conditions, our Services
are not exclusive and you may list your domain names for sale with other
services.
Whenever a domain name becomes a Restricted Domain, you are agreeing that
for 60 days thereafter, you will exclusively use our NDX Market Services in
connection with the purchase or sale thereof.
Once a domain name has become a Listed Domain as to any Auction
conducted through the NDX Market Platform, you may not remove the listing
(unless requested by ND) and are granting ND an exclusive right and authority
to sell the Listed Domain through the Auction process.
You may not attempt to directly or indirectly circumvent our Services,
including, by undertaking to: contact or solicit, negotiate or enter into any
agreement regarding any Restricted Domain outside of the NDX Market Platform
with any actual or potential buyer who became known to you in connection with
any announced or pending Auction or negotiations using Direct Sales Services.
FEES. Fees are generally paid by Sellers although
in certain cases we may collect fees from either party. ND’s fees are published elsewhere on the Site
and are subject to change at any time.
ND fees are those published on the Site or Platform as of the moment of
acceptance when the agreement is formed between Buyer and Seller and shall be
applied to the agreed-upon price and Currency.
Fees become due upon the moment of acceptance and unless otherwise agreed
in writing and consented to by ND, are due and payable by Seller and may be
deducted from any amount otherwise due to Seller. If Seller violates these Terms or if Seller
or Buyer fail to complete any sale, ND shall be entitled to all applicable fees
that would have been due in absence of such conduct and reserves the right to
assess and collect any such amounts from Seller or Buyer.
Sales, use or value-added taxes (“VAT”) may apply to ND Fees depending upon
your location.
Seller and Buyer each authorize ND to withhold its fees from any amounts
otherwise due Seller or Buyer in connection with any Service provided by
ND. All payments charged and
collected by ND are non-refundable.
LIMITED ON USE; TERMINATION OF AUCTIONS; NUMBER OF
OPEN OFFERS. ND reserves the right to suspend
operation of the Platform and terminate any pending negotiations or auction (or
any part thereof) at any time and for any reason, all without obligation or
liability of any nature to any NDX Market User or third party. If any auction or negotiation is terminated,
ND may re-start a new auction or negotiation process at any time and shall in
no event be responsible for any pricing differential or claims by participants
in any prior terminated Auction or negotiation that their Bid/Offer was higher
than any subsequently obtained. ND
reserves the right to limit access, including the number of Listed Domains as
to which you may have simultaneous open offers.
LEGAL RELATIONSHIP. NameDrive is a neutral platform and neither owns the Domains listed on the
Platform, nor has any influence or control on the business conducted among NDX
Market Users. The responsibility for the content of Domain listings, including
the accuracy of any statistics, whether measured and displayed by ND or
otherwise, lies exclusively with the respective Sellers, Buyers, and
Users. This agreement is solely between
ND (and its affiliates) and you and our respective successors and permitted assigns,
and no other person or entity shall have or acquire any right or benefit by
virtue of this agreement.
LIMITATIONS OF LIABILITY. ND’s liability to any NDX Market User, including a Buyer or Seller
in connection with any Listed Domain or the purchase/sale/lease thereof, is
further set forth in the [ND General Terms] and [ND Domain Transfer Agreement], which is incorporated
herein. In addition to the limitations
stated therein, ND makes no
representations or warranties regarding the features of Listed Domains or the
successful operation of the Platform or the ability of any NDX Market User to
actually complete the sale, purchase or lease of any Listed Domain. For avoidance of doubt, ND shall in no event
be responsible for any information related to any Listed Domain, even if
supplied through use of ND Services or the Site, including, without limitation,
revenues, visitor statistics, traffic statistics, and the precise
alpha-numerical composition of a Domain.
ND shall not be liable for legal transactions or other acts of NDX Market
Users (or any visitor to the Site). This also applies to any violations of
rights of a third party through the listing of a Domain on the Platform, in
particular his/her/its intellectual property rights, rights of the use of a
name, and trademark rights. Buyer and Seller agree that ND shall not be held
responsible for the failure of either party to a purchase and sale agreement to
follow through with their obligations under such an agreement, and that ND, as
the neutral facilitator of the Platform and associated Services shall not be
subject to any claims arising from the attempted purchase and sale of Domains.
ND will always try to complete the purchase and sale of a Domain. If an
agreement has been made over the Platform, between a Buyer and a Seller, absent
an applicable court order, ND will strive to make every commercially reasonable
effort move forward with a domain transaction.
For example, if we hold both the full payment and Domain in our control,
the Domain will be forwarded to the Buyer and the payment to the Seller
consistent with the ND Domain Transfer Agreement. If any NDX Market User asserts breach or
failure to perform, it is that person’s obligation to seek legal redress separately
as against the other (but not as against ND).
In the event of any dispute, each NDX Market User agrees to honor the
limitations of liability stated or incorporated elsewhere in these terms.
ND may delay, extend or terminate and/or restart any auction if in its sole judgment such action is warranted and ND shall not be liable to any user for such action, even if mistaken, including any claim that any bid in any effected auction was the highest as of the point of delay, extension or termination, or was higher than the ultimate bid achieved. ND shall be deemed in default hereunder, nor shall be held responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: server failure, internet disruption, communications errors, earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over ND, or any of its affiliates or those providing services in connection with any party of the NDX Market Platform, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond our reasonable control.
The foregoing shall apply even if ND has been made aware of the presence or
inaccuracy of any information contained in the Platform or Site, or the acts or
omissions of any NDX Market User.
REJECTED AND/OR BLOCKED
LISTINGS. We reserve the right, at any time, and without reason or
prior notice, to reject (or refuse to reject) the listing of any Domains on the
Platform or to remove and blacklist (or refuse to remove or blacklist) any
previously Listed Domains and/or any NDX Market Users. Although we will make reasonable efforts to
advise users as to reasons for our actions (or inactions), we are not required
to do so. Typical reasons for rejection,
removal or blacklisting include (without limitation) violation of these terms
or any other terms linked herein or published on the Site. If you think that any Listed Domain violates
your intellectual property or other rights, please review and follow the
instructions in our [Infringement
Notification Policy].
If you are
making an offer to purchase a Domain Name (“Domain”) listed for sale with
NameDrive, LLC (“ND”) using any of our offered services (including by auction, NDX
Market Platform or Broker Services), then in addition to our [NameDrive General Terms of Service]
and other applicable terms, the following listing requirements and obligations
apply to you.
(a) You agree to set up a user account and to fill out any registration
form(s) completely and accurately.
(b) You acknowledge that Domains are the result of, and are subject to, all
of the conditions, limitations, and restrictions contained in their
registration agreement with the registrar and/or policies of any registry or
ICANN. The transferability of any Domain
registration may be limited, prohibited, or otherwise subject to conditions
imposed by the registrar, registry, ICANN, or applicable law. When referencing a Domain as the object of a
purchase and sale, such shall refer to only to any rights the Seller may
possess with regard to the registration of the particular Domain under the
registration agreement with its registrar.
Any materials or rights other than registration rights (e.g. trademarks
or content or material associated with a developed website) that is the object
of a purchase and sale agreement must be sufficiently described in writing to
be subject to the relevant purchase and sale agreement.
(c) As a Buyer of a Domain listed for sale on the Site or through our
Services (including auction, NDX Market Platform or Broker Services), then in
addition to other representations and warranties stated elsewhere, you
represent and warrant that: (i) any offer or acceptance you make to purchase a
Domain is bonafide; (ii) that you are ready, willing and able (and have the
financial and other resources necessary) to complete the transaction on the
terms you have offered or accepted; (iii) you will not take any action (and are
not subject to any restriction) that would impair your ability to complete any
transaction or to accept the transfer of any Domain registration; (iv) Upon
acquisition by you, the Domain will not be used in any manner to infringe the
rights of any third party, including, but not limited to, trademark, naming or
publicity rights; (v) your acquisition of any Domain and performance of any
agreement will not conflict with any legal obligation to which you are subject,
including, without limitation, any contract or court order; and, (vi) if any offer or acceptance of purchase of any
Domain is accepted, you will complete the transaction in accordance with its
terms, including the terms provided in the Site and any associated [ND Domain Transfer Agreement].
All transactions will be completed using the [ND Domain Transfer Agreement]
which is presented in “Click-Through” form and must be consented to by clicking
the appropriate “I Agree” or “confirmation” option on the relevant webpage at
the Site. ND reserves the right to
require that you sign and return a physical agreement in addition to any
click-through version and you agree to do so upon request.
(d) You will not directly or indirectly enter bids for the same Listed
Domains using different user accounts, or request or cooperate with others to
do so. You may not manipulate or provide
false information relative to any offer for a Listed Domain, including, without
limitation, manipulating or otherwise falsely issuing claims as against the
Domain or Seller, or any other user making offers as to the Domain.
(e) You will not yourself, nor will you allow or enable another, to
directly or indirectly interfere or attempt to interfere with the operations of
the Site or the Services, including interfering with access or use by any other
user.
(f) You agree that any comment system provided by ND will be used only to
communicate with other users regarding the sale or purchase of Listed Domains using
the Site. You may not solicit the
purchase or sale (or modification of any terms of the purchase or sale) of any
Listed Domain outside of our Site or Services.
This includes, for example, directly or indirectly communicating with
any other person or entity to offer to buy or sell any domain that is a Listed
Domain other than through the use of our Site or Services. If you undertake such prohibited conduct, we
reserve the right to assess and collect from you any fees that would have been
due had you properly used our Site and Services to complete the transaction
(even if such fees would have been otherwise paid by the Seller).
(g)You will keep any data which you have added to your account
up-to-date. You agree to cooperate fully
with ND as to any decision we may make regarding the removal or suspension of
any Listed Domain or user account, or the investigation of any third party
complaint regarding any Listed Domain in your account.
(h) You agree that ND may, without liability, suspend or terminate your
account or user status at any time, with or without notice or cause.
(i) If you
have a complaint to make regarding any Listed Domain or the activities of any
ND User, please contact your account representative or email us at our “Contact
Us” link on our Home Page.
If you think that any Listed Domain violates your intellectual property
or other rights, please review and follow the instructions in our [Infringement Notification Policy].
(j) Any price stated for a Domain Name is not inclusive of any sales or value added taxes that otherwise may be due. Seller and Buyer shall properly report any and all applicable taxes and to timely report and pay same. All fees due to ND are not inclusive of any sales or value added taxes.
If you are listing
a Domain Name (“Domain”) for sale with NameDrive, LLC (“ND”) using any of our
offered services (including by auction, NDX Market Platform or Broker
Services), then in addition to other applicable terms in our [NameDrive General Terms of Service]
and other applicable terms, the following apply to you.
(a) You agree
to set up a user account and to fill out any registration form(s) completely
and accurately. You must be the verified
owner of the domain name listed for sale and may be required to confirm such
ownership separately (for example if WHOIS privacy is used or the WHOIS
information does not otherwise reflect the information in your user account).
You must promptly upon request by ND provide ND with complete and accurate
information regarding Seller, the Domain and such other information and data as
ND may reasonably request from time to time in order to permit ND to perform
its duties hereunder.
(b) Domains
are the result of, and are subject to, all of the conditions, limitations, and
restrictions contained in their registration agreement with the registrar
and/or policies of any registry or ICANN.
The transferability of any Domain registration may be limited,
prohibited, or otherwise subject to conditions imposed by the registrar,
registry, ICANN, or applicable law. When
referencing a Domain as the object of a purchase and sale, such shall refer to
only to any rights the Seller may possess with regard to the registration of
the particular Domain under the registration agreement with its registrar. Any materials or rights other than
registration rights (e.g. trademarks or content or material associated with a
developed website) that is the object of a purchase and sale agreement must be
sufficiently described in writing to be subject to the relevant purchase and
sale agreement.
(c) As a
Seller of a Domain listed for sale on the Site or through our Services
(including auction, NDX Market Platform or Broker Services), then in addition
to other representations and warranties stated elsewhere, you represent and
warrant that: (i) you have registered the Domain with the appropriate Domain
registrar or other registration authority; (ii) your registration of the Domain
is current with all fees paid and not subject to deletion, cancellation,
rescission, or deactivation by the applicable Domain registrar or other
registration authority; (iii) you have not taken any action that would impair
your ability or right to transfer the Domain registration and no such action
has been taken against you; (iv) the Domain has not been used in such a manner
as to infringe the rights of any third party, including, but not limited to,
trademark, naming or publicity rights; (v) the Domain is not the subject of any
legal disputes or proceedings challenging your right to register or use the
Domain; (vi) you will accurately describe the subject listing; (vii) you will
disclose to ND any facts regarding the Domain that may have arisen or of which
you become aware before, during or after submission of a name for listing;
(viii) you own and have the right to sell any other rights or materials
described as being for sale in your Domain listing; and (ix) if your offer to
sell and transfer the Domain is accepted, you will complete the transaction with
a ready, willing, and able Buyer in accordance with its terms, including the
terms provided in the Site and any associated [ND Domain Transfer Agreement].
All
transactions will be completed using the [ND Domain Transfer Agreement]
which is presented in “Click-Through” form and must be consented to by clicking
the appropriate “I Agree” or “confirmation” option on the relevant webpage at
the Site. ND reserves the right to
require that you sign and return a physical agreement in addition to any
click-through version and you agree to do so upon request.
You will not
under any circumstances list or transfer the any Domain as to which you do not
have sufficient rights to transfer, or that is illegal to transfer under
applicable law.
(d) The
Seller agrees not to list any Domains which violate the [ND Offensive Domain Name Policy],
incorporated by reference. Seller agrees
not to list any Domains (i) which may infringe upon or violate the intellectual
property rights of other persons, (ii) for which Seller does not have right,
title and interest to, or the authority to sell to third parties free and clear
of all liens, claims, encumbrances, licenses and security interests, or (iii)
which are the subject of litigation, arbitration, claims, disputes or other
legal proceeding, either pending or threatened. We may refuse to list, or
remove the listing for, any Domain which, in our sole discretion, may
potentially infringe or violate the proprietary or other rights of any third
person or any other Domain, or which is inflammatory, offensive, or
inconsistent with our general policies or terms.
(e) You will
not directly or indirectly enter a bid for your own Listed Domains or request
or cooperate with others to do so. You
may not manipulate or provide false information relative to any Listed Domain
listing, including, without limitation, manipulating or otherwise falsely
inflating traffic statistics displayed on the Site or otherwise provided to any
other User during the course of any negotiation.
(f) You will
not yourself, nor will you allow or enable another, to directly or indirectly
interfere or attempt to interfere with the operations of the Site or the
Services, including interfering with access or use by any other user.
(g) You agree
that any comment system provided by ND will be used only to communicate with
other users regarding the sale or purchase of Listed Domains using the
Site. You may not solicit the purchase
or sale (or modification of any terms of the purchase or sale) of any Listed
Domain outside of our Site or Services.
This includes, for example, directly or indirectly communicating with
any other person or entity to offer to buy or sell any domain that is a Listed
Domain other than through the use of our Site or Services. If you undertake such prohibited conduct, we
reserve the right to assess and collect from you any fees that would have been
due had you properly used our Site and Services to complete the transaction.
(h)You will
keep any data which you have added to your account up-to-date. If a Domain has been sold, you will remove it
from their User Account. You agree to
cooperate fully with ND as to any decision we may make regarding the removal or
suspension of any Listed Domain or user account, or the investigation of any
third party complaint regarding any Listed Domain in your account.
(i) You agree
that ND may, without liability, suspend or terminate your account or user
status at any time, with or without notice or cause.
(j) If you
have a complaint to make regarding any Listed Domain or the activities of any
ND User, please contact your account representative or email us at our “Contact Us”
link on our Home Page. If you think that any Listed Domain violates
your intellectual property or other rights, please review and follow the
instructions in our [Infringement
Notification Policy].
(k) Any price for a Domain is not inclusive of any sales or value added taxes that otherwise may be due. Seller shall properly report any and all applicable taxes and to timely report and pay same. All fees due to ND are not inclusive of any sales or value added taxes.
This Privacy Policy
applies to Services provided by NameDrive, LLC (“ND”) via the domain and
sub-domains of www.namedrive.com. By visiting a ND website you agree to be
bound by the terms and conditions of this Privacy Policy and you expressly
consent to ND’s use and disclosure of your personal information in accordance
therewith. This Privacy Policy is incorporated into and subject to the terms of
the [NameDrive General Terms of Service]. If you do not agree to all of our terms and
conditions you may not use or access our site.
1. Information We Collect
ND only collects
personal information about users that we consider necessary for providing our
Services in an efficient, customized, and user-friendly manner, including your
name, address, phone number and email address.
We collect payment information (such as credit cards) for similar
purposes including considering NDX Market Certified Trader applications.
2. Information from Children
If you are under
the age of 18, you may only use our Site in conjunction with and under the
supervision of your parents or guardians, and with express permission from ND.
For this reason, we ask that children do not submit any personal information to
ND.
3. Our Use of Your Information
For some of our
Services, we may require you to provide contact and identity information,
billing information, and other personal information. Under some circumstances,
we may also require additional financial information, including, without
limitation, your billing address, bank account information, a credit card
number and expiration date, and tracking information from funds transfers.
When you access a
ND website, we may automatically collect certain information based upon your
behavior on the site. We use this information to do internal research on our
users' demographics, interests, and behavior to serve our users better. This
information may include the URL that you come from or go to (whether this URL
is on the site or not), your computer browser information, and your IP address.
If you list or make
an offer to buy or sell a Domain Name via a ND site, we may collect information
about your buying or selling behavior and transactions.
If you send us
personal correspondence, such as emails or letters, or if other users or third
parties send us correspondence about your activities on the site, we may
collect such information into a file specific to you or the subject of your
correspondence.
We use your
information and other information we obtain from your current and past
activities on the site to resolve disputes, troubleshoot problems, collect fees
owed, pay amounts due you, verify your account data, measure user interest in
ND’s products and services, inform you about online and offline offers,
products, services, and updates, customize your experience, detect and protect
us against error, fraud and other criminal activity, and enforce our General
Terms of Use. At times, we may look across multiple users to identify problems
or resolve disputes, and we may examine your information to identify users
using multiple login names. We may compare and review your information for
resolving or investigating mistakes, conflicts, and accuracy.
We provide you the
opportunity to opt-out of having your personally identifiable information used
for certain purposes when we ask for this information. By way of example only (and not limitation),
if you register for a user account but do not wish to receive any additional
marketing material from us, you can generally indicate your preference on the
registration form. If you no longer wish to receive news or promotional
materials, you may opt-out of receiving them by following the instructions
included in each news release or communication.
We will let you
know if and when your personal information is collected by any third party that
is not our agent/service provider so that you can make a considered decision as
to whether or not to share your information with that party.
“Cookies”
We use data
collection devices such as "cookies" on certain pages of the site to
help us in our analytics, effectiveness, and promote trust and safety. "Cookies"
are small files placed on your hard drive that assist us in providing our
services. We may offer certain promotions or other benefits that are only
available if you have an active “cookie” provided through our Site. Cookies may also allow you to enter your
password less frequently during a session.
Cookies also assist us in presenting you with information we believe is
well targeted to your interests.
Information we gather from use of cookies may also be linked with
personal information we have about you.
Some cookies last only for your current visit to our Site and are
automatically deleted by your computer when your visit comes to an end. Depending upon the browser you use, you may
be able to decline or delete cookies.
Doing so, however, may limit your use and enjoyment of our Site and
Services.
Some of our
business partners (e.g., advertisers) may use "cookies" on our site.
We have no access to or control over these "cookies." This privacy
statement covers the use of "cookies" by ND only and does not cover
the use of "cookies" by any advertisers.
You agree that we
may use your information to contact you and deliver information to you that we
believe is well suited or otherwise targeted to your perceived interests,
including advertisements, notices, product offerings, and communications
relevant to your use of the site. By accepting this Agreement, you expressly
agree to receive this information.
4. Our Disclosure of Your Information
We do not (and will
not) sell or rent any of your personal information to third parties for their
marketing purposes without your explicit consent. However, the following
describes some of the ways that your personal information may be disclosed in
the normal course of business as part of Services provided through our Site.
Advertisers. We gather up data across numerous
registered user accounts and disclose such information in a non-personally
identifiable manner to advertisers and other third parties for their marketing
and promotional purposes. For such purposes, we do not disclose any information
that we believe could be used to identify ND users personally. ND may receive a fee or other benefits for
providing such information.
Our Site.
Although we undertake reasonable efforts to prevent it, others may
illegally attempt to automatically collect your email address from the site. If
you are involved in a transaction, we have features that may allow other users
to view your email address and obtain your contact and other information to
help complete the transaction. Further, we may send out notices to you or other
users regarding suspicious activity or policy violations on the site.
Affiliates for
Our Operations. We may
use third parties ("affiliates") to facilitate or outsource one or
more aspects of the Services that we provide to you (e.g., Transfer services
related to payments and domain name transfers, domain name search technology,
advertising provisions, and other services) and therefore we may provide some
of your information directly to these affiliates. We may or may not hold an ownership interest
in these affiliates. Affiliates are
subject to confidentiality agreements with us and other legal restrictions that
restrict or prohibit their use of the information we provide them for any other
purpose except to facilitate the specific outsourced service, unless you have
explicitly agreed or given your prior permission to them for additional uses.
In some instances, the affiliate may collect information directly from you. In
these cases, we will strive to tell you of the involvement of the affiliate,
but what information you provide them will be up to you.
Agents and
Business Entities. We
share some of our data, including personal information about you, with our
affiliates, subsidiaries, and joint venturers that are committed to serving
your online needs and providing related services throughout the world. For example, we use a third party company
(NDX Market SA) and banking institutions to process all funds transfers related
to the purchase and sale of domain names and we use third party registrars for
the transfer of domain names. These
companies do not retain, share, store, or use personally identifiable
information for purposes other than as related to their service or as otherwise
required by law. To the extent that these entities have access to your
information, they have assured us that they will treat it at least as
protectively as they treat information they obtain from their other users.
Our affiliates,
subsidiaries, and joint venturers follow their own privacy practices that may
be more or less protective of their users than ND’s practices described in this
document. ND, its affiliates, subsidiaries, joint venturers, or any combination
of such, will share some or all of your information with another business
entity should we plan to merge with, or be acquired by, or obtain investment
funds from that person or entity.
Legal Requests. ND cooperates with law enforcement
authorities, as well as with other third parties, to enforce laws, intellectual
property rights, and to prevent fraud.
Although as noted below, we typically require a subpoena or similar
legal document prior to doing so, we do reserve the right, in response to a
verified request by law enforcement or other government officials relating to a
criminal investigation or alleged illegal activity, we can, and you authorize
us to, disclose your name, city, state, telephone number, email address, login
name, access history, IP address, fraud complaints, and site use history, with
or without a subpoena.
Without restricting
our rights to do so as noted above, as a general policy we will not disclose
your personal information to law enforcement or other government officials
without a subpoena, court order or substantially similar legal procedure,
except when we believe in good faith that the disclosure of information is
necessary to protect our rights or to prevent imminent physical harm, financial
loss or to report suspected past, present, or future illegal activity. Further,
we can, and you authorize us to, disclose to a third party your information,
including your name, street address, city, state, zip code, country, phone
number, email, and company name, as we in our sole discretion believe necessary
or appropriate in connection with an investigation of fraud, intellectual
property infringement, piracy, or other unlawful activity.
5. Your Use of Other Users' Information
In order to
facilitate interaction among our users, the ND Site may allow you access to specific
information about other users. You agree that, with respect to other users'
personal information that you obtain through the Site, our Services, or through
any ND-related communication or ND-facilitated transaction, ND hereby grants to
you a limited, non-transferable, revocable license to use such information only
for: (a) ND-related communications that are not unsolicited commercial
messages, (b) using services offered through ND (e.g., agreements, transfer
services and complaints), and (c) any other
purpose that a user expressly agrees to after you tell them the purpose for
which you would like to use it. In all
cases, you must give users an opportunity to remove themselves from your
database and a chance to review what information you have collected about them.
In addition, under no circumstances, except as defined herein, can you disclose
personal information about another site user to any third party without the
written consent of ND and the written consent of that user, including, but not
limited to, email correspondence with ND staff regarding ND users, whether in
the course of providing ND services or otherwise. You grant us all rights
necessary to extend the license referenced in, and agree that other users may
use your personal information to communicate with you, in accordance with this
Section.
6. Control of Your Login Name and Password
Access to the Site
and Services is generally controlled by user name and password. Guard this information carefully. You are responsible for all actions taken
using your user name and password, including fees charged to your account and
adherence to the [ND General Terms].
This is the case whether or not you specifically authorized such
activities. ND personnel, its agents or
affiliates will not ask you for your ND password. If you lose control of your password, you may
lose substantial control over your information and may be subject to legally
binding actions taken on your behalf.
You may also lose access to any account you have created or to
transactions in which you were involved.
You should change your password regularly using the online process.
7. Accessing, Reviewing and Changing Your Personal
Information
Subject to
conditions, ND allows users the ability to review and change the information
you submit to us by logging into the site and entering in the new information
yourself. For example, once you have
logged into the Site, you can change your password, other personal, contact,
and financial information, and user preferences by going to the applicable
pages and following the instructions.
Certain information may not be subject to change (such as domain names
subject to negotiation, pending Auction, Offers, transfer and the like).
You must always
keep your personal information updated.
It is the principle means of our contacting you. Because of limited staff and the difficulties
in authentication, we typically do not accept modifications that are not
submitted through the Site.
Subject to the [ND General Terms] and other
restrictions, you may delete or deactivate your account or information
contained therein upon request. To request deletion or deactivation please
use the “Contact Us”
link on our Home Page. In certain circumstances we may refuse or
delay deletion or deactivation. Even if
an account is deactivated or deleted, we will still retain all or some of your
information for internal use consistent with this Policy, or in order to
prevent fraud, collect fees owed, resolve disputes, troubleshoot problems,
assist with any investigations, enforce our [ND General Terms], and comply with legal requirements. Therefore, you should not expect that
your information will be completely removed from our databases in response to
your requests.
8. Notification System & Discussion Boards
If you use the
notification system or discussion board(s) located on our Site you should be
aware that any personally identifiable information you submit can be read,
collected, or used by other users of these forums, and could be used to send
you unsolicited messages. The notification
system is generally made available for use between Buyers and Sellers in
connection with ongoing negotiations.
You may submit notifications in a “public” manner (they are viewable by
all users) or a “private” manner (available only to ND and the Buyer). You may not use the notification system for
matters unrelated to negotiating the purchase/sale of a domain name on our Site
and using our Services. ND is not
responsible for the personally identifiable information you choose to submit in
any of these methods.
9. Other Information Collectors
Except as otherwise
expressly included in this Policy, this document only addresses the use and
disclosure of information we collect from you.
If you disclose information to other parties (on or outside of the Site),
whether they are Bidders, Buyers or Sellers on our Site or other sites
throughout the Internet, you do so at your sole risk and different rules and
policies may apply. ND does not control the privacy policies of third parties.
ND follows generally
accepted industry standards to protect the personal information submitted to
us, both during transmission and once we receive it. No method of transmission
over the Internet, or method of electronic storage, is 100% secure, however.
Therefore, while we strive to use commercially acceptable means to protect your
personal information, we cannot guarantee its absolute security.
Your information is
stored on ND's servers located in the
ND personnel are
trained appropriately regarding the application of privacy practices and the
importance of protecting your information.
We may change or replace this Policy at any time and without notice. Such changes shall be effective as noted in our [ND General Terms].
NAMEDRIVE OFFENSIVE DOMAIN NAME POLICY
This NameDrive Offensive Domain Policy contains guidelines that help us to
determine whether or not a Domain Name shall be denied listing because of its offensive nature. It supplements the policies set forth in the [Sellers’ Listing Policies]. ND
reserves the right to deny listing of domains that violate our Offensive Domain
Policy or for any other reason.
Offensive Material means that which, in ND’s sole
discretion, promotes or praises hatred, violence, child pornography, racial or
religious intolerance or other similar impermissible content. Once discovered by or reported to ND, domain
names containing any offensive materials may not be listed and may be removed
without warning or notice to anyone, including any user in whose account the
domain name is intended to be or is already listed. Repeated attempts to list domain names
containing offensive material may result in suspension or cancelation of the
user’s account, without warning or notice to the user, and without liability on
the part of ND.
Nor does ND wish to list or otherwise provide Services for any domain name
that, in our sole discretion, promotes or tends to promote organizations that endorse and/or encourage hatred, violence, child
pornography, racial or religious intolerance. This includes, but is not limited
to, domains promoting organizations such as the KKK, Nazis, neo-Nazis, the
Aryan nation or other similar organizations.
Reporting Domains that
Violate the Offensive Domain Policy. We provide Services for millions
of domain names and users all over the world.
It is impossible for ND to monitor and verify every single domain name
and we disavow any obligation to do so. For this reason, we encourage you to
report to us any domain name you believe has been listed in violation of our
Offensive Domains Policy. Inquiries
should be sent to the “Contact Us”
link on our Home Page. Please include the domain name and the
date, time and location where you noticed the Domain.
INFRINGEMENT NOTIFICATION POLICY
This Intellectual Property Rights Policy has been developed by Namedrive,
LLC (“ND”) to allow users and non-users to submit complaints regarding Domain
Names that are listed for sale via the Platform and/or other Namedrive
Services. Despite our detailed rules for use of Services, it is impossible for
us to monitor and verify all the Domain Names listed. If you believe that your
intellectual property rights have been violated by a ND user, please submit a
complaint in accordance with the below procedure. A complaint may or may not
result in our suspending or terminating a user’s access to and use of the
Services.
TRADEMARK CLAIMS
1. Submitting a Complaint. If
you are a trademark owner or the legal representative of a trademark owner and
have a good faith belief that a Domain Name listed in our Site infringes your
copyright, trademark, or other intellectual property rights, please send a
written communication to the following address:
The written communication must include
2. Namedrive review. After
we have received your proper complaint, both you and the domain owner will be
sent an email confirmation which will outline the domain in question and the
party submitting the complaint. Domain
owners are given three (3) days to respond.
We strive to review all claims within ten (10) days of when the
complaint was received. Review will be
undertaken by an appropriate member of our staff trained in intellectual
property matters. We will issue our
decision to both you and the domain owner.
3. Namedrive decision. You
agree that if the decision is made to remove the domain name from our Site, we
will endeavor to do so and such shall be the limit of our responsibility. You also agree that if a Domain review does
not result in removal of the Domain, the complaining party will not be allowed
to resubmit its complaint unless he can allege new facts unknown during the
initial complaint.
COPYRIGHT CLAIMS
Namedrive facilitates the sale and purchase of Domain Names and provides
various Services in relation to such transactions. Namedrive is NOT responsible
for and has NO control over the use of any Domain Name listed for sale. Any
content placed on a webpage accessed through or via a Domain Name is the
responsibility of the owner and/or any third party service provider (including parking
and other monetization services). Namedrive does not host Domain Names, provide
webpage content, or any other similar services. As such, the Digital Millennium
Copyright Act (DMCA) may not apply to our Services. However, we reserve the
right to claim benefits of the DMCA provide you with the following information
regarding claims of infringement and our policy for handling any claims we may
receive.
DIGITAL MILLENNIUM COPYRIGHT ACT
It is our policy to respond to clear notices of alleged copyright infringement. This page describes the information that should be present in these notices. It is intended to make submitting notices of alleged infringement to us as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the DMCA (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov) but we will respond to notices of this form from other jurisdictions as well.
Regardless of whether we may be
liable for such infringement under local country law or
INFRINGEMENT NOTIFICATION
To file a notice of infringement with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, we suggest that you first contact an attorney.
To expedite our ability to process your request, please use the following format (including section numbers):
1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (for example, "The copyrighted work at issue is the text that appears on http://www.domainname.com/page.html") or other information sufficient to clearly specify the copyrighted work being infringed (for example, "The copyrighted work at issue is the “Title of Link” by ABC, published by XYZ, ISBN #987654321").
2. Identify the material that you claim is infringing the copyrighted work listed #1.
3. Provide information clearly sufficient to permit us to contact you (email preferred).
4. Provide information sufficient to permit us to notify the owner of the allegedly infringing content (email address is preferred).
5. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
7. Sign
the document.
8. Send the written notice to the following address: NameDrive LLC, 2141 Wisconsin Ave Suite C-2, Washington, DC 20007, USA OR fax to: +1 (202) 625-7001, Attn: DMCA Complaints
COUNTER NOTIFICATION
The administrator or the provider of affected content may make a counter notification pursuant to §§512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, we suggest that you first contact an attorney. To expedite our ability to process your counter notification, please use the following format (including section numbers):
1. Identify the material that we have removed or to which we have disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court, Eastern District of Virginia, USA, and that you will accept service of process from the person (or their agent) who provided notification under subsection (c)(1)(C).
3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."
4. Sign the document.
5. Send the written notice to the following address: NameDrive LLC, 2141 Wisconsin Ave Suite C-2, Washington, DC 20007, USA OR fax to (202) 625-7001, Attn: DMCA CLAIMS - Counter Notification
For any additional questions regarding the DMCA process for Namedrive products and services please contact us using the “Contact us” information on the Site.
REPEAT INFRINGERS
We will, in appropriate circumstances, terminate repeat infringers. If you believe that a user of our Site is a repeat infringer, please follow the instructions above to contact us and provide information sufficient for us to verify that the user is a repeat infringer.
ND DOMAIN NAME TRANSFER AGREEMENT
By
indicating your agreement, you (the seller (“Seller”) or buyer (“Buyer”) as the case may be), each identified via
the NDX Platform (and perhaps as indicated below), confirm via “Click-Through”
consent that they have entered into the following agreement to buy and sell the
domain name(s) (each and collectively “Domain Name”) identified on the webpage
at which Buyer/Seller (as the case may be) confirmed their agreement on the
following terms. Seller and Buyer agree
that ND, LLC (“ND” or “we”) is merely assisting in the transfer of funds
and Domain Name as set forth in Section 7, but other than as set forth therein,
ND is not a party to this Agreement and has no obligations to Seller, Buyer or
any third party hereunder.
1.
INFORMATION. The information
regarding the Seller and Buyer, the Domain Name(s), Price and Currency,
including information necessary for the transfer of funds and Domain Name(s),
are all as set forth in the NDX Platform transaction summary page from which
consent to this Agreement has been indicated, and such information is
incorporated herein by reference.
2.
Mutual
Cooperation. Buyer and Seller each agree to cooperate fully with each other
and ND to complete the transaction contemplated by this agreement, including,
without limitation, providing information, completing and signing consents and
other documents, and promptly tendering payments and approving domain name
transfers.
3.
Fees Costs and Taxes. Seller shall
be responsible for ND’s fee which shall be made available on the NDX Market’s
Price List page on namedrive.com, inclusive of the value Buyer/Seller assign to
any items passing separately between Buyer and Seller as a part of the overall
transaction, which shall be deducted from any amounts otherwise due
Seller. In the event of failure of the
transaction due to any fault of Seller, Seller shall remain obligated to pay
all amounts due ND. Seller shall
maintain all Domain Name registrations and pay all registration fees due prior
to the transfer of the Domain Name to the control of Buyer. Buyer and Seller shall each bear their
respective registration costs. If
additional costs arise in the transaction for any reason, they will be borne by
the Buyer or Seller, depending upon the source of the cost.
The Price is not inclusive of any sales or value added
taxes that otherwise may be due. Seller
shall properly report any and all applicable taxes and to timely report and pay
same. All fees due to ND are not inclusive
of any sales or value added taxes.
4.
Mutual
Representations, Warrants and Covenants. Each party
represents, warrants and covenants to the other, and to ND, each of the
following:
Each has all legal authority, authorizations and
capacity to enter into this Agreement and to assume the rights and obligations
arising hereby; if an individual is at least 18 years of age; if an entity, has
obtained all required consents or approvals necessary and the individual
committing to this transaction has full requisite authority to bind such
entity. This agreement constitutes a
valid and binding obligation to purchase and sell the Domain Name on the
conditions set forth herein. The execution
and performance of the underlying transaction does not and will not infringe
upon any rule of law or the proprietary or other rights or interest of any
third party, including, without limitation, trademark, trade-name, privacy or
other rights, and shall not cause any harm, damage, expense or otherwise
adverse effect upon ND.
Each has had the opportunity to avail itself of legal
and other professional advice before executing this Agreement, and no
representation has been made by ND as to the legal validity/adequacy of any
provision in this document or any related document or transaction. All services provided by ND under this
Agreement, including form agreements that are provided for the benefit of
Seller and Buyer, are provided only to facilitate the transfer of the Domain
Name and shall not be construed as legal or other professional advice in any
manner whatsoever. Each has all the
resources necessary to complete the transaction contemplated herein and has the
authority to commit such resources for the purpose of this transaction. Neither has made, and will not make, any false
or fraudulent statements in connection with the transaction underlying this
Agreement or the registration of the Domain Name.
5.
Seller’s Representations, Warranties and Covenants. Seller
represents to Buyer and ND each of the following:
a.
Seller shall
deliver to Buyer right, title and interest in the Domain Name, free and clear
of any liens or encumbrances of any nature, except only those created by the
applicable registration agreement associated with the Domain Name, together
with all Seller’s right, title, and interest in any intellectual property
rights associated with the Domain Name, including, without limitation,
affiliated trademark rights (if applicable) and all associated good will.
b.
Seller holds
all right and interest in and to the Domain Name, free and clear of any lien or
encumbrance (other than that created by the applicable registration agreement)
and Seller has no actual knowledge of any right or interest held therein by any
third party, including, without limitation, by way of lease, security interest
or similar claim that may, in any manner, restrict, impede or adversely effect
the consummation of the transaction underlying this Agreement.
c.
No fees are
owing to any person/entity (including any registrar or government agency) with
regard to the registration/maintenance of the Domain Name. All registration fees shall remain fully paid
until final transfer of the Domain Name to Buyer under this Agreement.
d.
No false
statement has been, or will be, used in connection with the
registration/maintenance of the Domain Name, the listing of the Domain Name, or
the transaction contemplated by this Agreement.
Any revenue, traffic or other details regarding the Domain Name provided
by Seller are correct and have not been manipulated through any dishonest or
contrived means.
e.
Seller is not
seeking, and has not sought to use or sell the Domain Name for any unlawful
purpose, including, but not limited to, unfair competition.
6.
Buyer’s
representations, warrants and covenants. Buyer
represents, warrants and covenants to Seller and ND that Buyer has provided full, complete and truthful
information to Seller and ND, and will not, and has no intent to, use the
Domain Name in any manner that may infringe upon the proprietary rights of any
third party or for any unlawful purpose, including, without limitation, unfair
competition.
7.
Transfer
Services. The Transfer of the Domain Name and
funds representing the Price and Currency shall be undertaken pursuant to the
following:
a. Buyer and Seller each agree to timely perform all
necessary payment and other obligations required under this Agreement.
b. Upon receipt of a copy of
this Agreement duly completed and signed by Buyer and Seller, ND shall notify Buyer and provide an invoice stating the Domain
Name(s), Price, Currency, and other relevant information or instructions to
Buyer (“Buyer Instructions”).
c. Buyer shall abide by all instructions set forth in
Buyer Instructions and shall remit the full amount set forth in the invoice to
the banking account designated for payment in Buyer Instructions (without
offset or deduction) within five (5) days of receipt of the Buyer’s
Instructions.
d. After ND receives bank confirmation of the deposit and
clearing of all required funds to the designated account. ND shall provide
instructions to the Seller regarding the transfer of the Domain Name (“Seller
Instructions”). ND may, in its sole
discretion, require that the Seller transfer the Domain Name to a registrar account
maintained by ND as a condition to listing in any Auction or the price of the
Domain Name is substantial.
e. Within five (5) days of receipt of Seller
Instructions, Seller shall provide ND with all authorizations and documents
necessary to transfer the Domain Name to a registrar account maintained by ND
as set out in the Seller Instructions.
f. Following receipt of
authorizations from Seller, ND shall undertake reasonable efforts to request
the transfer of the Domain Name to ND’s registrar account. Seller shall cooperate fully with ND so as to
timely transfer the Domain Name as specified in the Seller Instructions.
g.
After ND
receives confirmation that the Domain Name is under its exclusive control at
the registrar identified in the Seller Instructions, ND will transfer the Price
to Seller (net of any amounts due to ND) and the Domain Name to the registrar
account specified by Buyer and the transaction shall be deemed “Closed”.
h.
Transfer of
funds and domain names is subject to the timely actions and cooperation by
third parties. ND or its affiliates
assisting in funds transfers maintain banking relationships with one or more
financial institutions. ND’s obligation
to transfer funds shall be limited to tendering instructions to its bank
regarding the transfer using transfer information supplied by Seller. Similarly, domain transfers require actions
and cooperation on the part of registrars and/or registries. ND’s obligation as to domain name transfers
is limited to issuing appropriate requests and consents to transfer using
information provided by others (including authorization codes and originating
and resulting registrar accounts). ND
shall not be responsible for delays or failure on the part of any bank or
intermediary used thereby for the processing of funds transfers or any
registrar or registry.
i.
The time of
day and calendar day for all matters and events referred to in this Section
will be determined as applied by ND.
Dates and times are generally the date and time of posting as recognized
by ND in Vancouver, British Columbia, Canada (or such other location as ND may
locate its relevant servers). Any date
or time indications, including, without limitation time-remaining information
as to auctions is provided without warranty of any nature. ND assumes no responsibility for failure to
accurately or otherwise time-stamp any information submitted, including,
without information, any auction bids, Offer, Counter-Offer or acceptance or to
timely or otherwise publish or communicate any Offer, Counter-Offer or
acceptance.
j.
All communications of any kind, for any
purpose shall be made in the English language.
In the event any other language is used, English language translations,
as determined by ND, shall control.
k.
All payments
shall be in freely remittable funds denominated in the Currency and made by
wire transfer without offset or deduction of any
nature. Buyer shall bear banking charges
as to transfers from Buyer and Seller shall bear charges as to transfers from
ND to Seller. Other costs will be paid
by Buyer or Seller, depending upon the source of the cost. Seller and Buyer each authorize ND to
withdraw and retain any fees due to ND in connection with the relevant
transaction.
l.
To the extent
any non-domain name asset or right is the subject of any transaction, Buyer and
Seller agree to transfer same separate and apart of any Transfer Services and
ND shall not be responsible therefore.
Notwithstanding such direct transfer, any value assigned to the
non-Domain Name transfers (e.g. trademarks, etc) shall be included in
determining any fee due ND. However,
Buyer and Seller shall transfer such items separately without responsibility of
ND.
m.
Buyer’s
overpayments will be reimbursed at Close of the transaction. Overpayments to Buyer or Seller will be
immediately repaid to ND by the relevant party.
Seller irrevocably instructs ND to withhold from payments to Seller any
amount owing (including fees) to ND under this or any other agreement and use
such amounts withheld as a setoff. No
interest shall be due or paid regarding funds held by ND or its affiliates in
connection with any Transfer or other Services provided.
n.
At no time
will ND be deemed to be the owner of the Domain Name notwithstanding that it
may temporarily be held in a registrar account in the name of ND or the Name
Servers may resolve to ND or its affiliates during the transfer period.
o.
All
notifications by ND in connection with Transfer Services shall be by email
using the email address provided by Buyer and Seller in their respective
accounts or as provided to ND in connection with this Agreement, and shall be
effective upon transmission.
Notifications to ND by Buyer or Seller shall be to the individual
account representative assisting in the transaction and shall be effective 1
business day following confirmation of actual receipt. Buyer and Seller will not communicate with
each other directly regarding any aspect of the transaction until the
transaction has been “Closed”.
p.
Should the ND
site or services be unavailable, or if Buyer and Seller jointly desire to
extend any period set forth in this document, ND may, but shall not be
obligated to, extend such times at its sole and absolute discretion and notify.
With the exception of extensions approved by ND, the periods for notice and
response shall not be modified.
q.
ND makes no
express or implied representation or warranty and assumes no responsibility for
condition of ownership or authenticity or sufficiency of documents.
r.
If ND
believes in its sole opinion that the transaction violates or is likely to
violate any applicable law or regulation, any party fails to respond to ND
communications within ten (10) days, or if ND receives conflicting instructions
which are not resolved by written consent of Buyer and Seller, then ND may
without obligation (in its sole option) terminate or suspend the transaction,
reverse any payments/domain transfers, net of costs, and/or refer the matter
for judicial determination, including impound, interpleader or receiver
appointment and thereafter rely upon any appropriate order issued by a court of
competent jurisdiction. ND’s costs and
expenses shall be paid from funds held by ND in connection with the
transaction.
s.
Funds or
other unclaimed property held in by ND pursuant to its Transfer Services for
more that two (2) years are subject to escheatment Montgomery County, Maryland
or other applicable jurisdiction. Unless otherwise obligated by law or
requested by both Buyer and Seller, and agreed by ND, if the transfer of the
registration as provided for in this Agreement is not concluded within twelve
(12) months of the Effective Date, ND is authorized to return the domain name
to the control of Seller and return to Buyer any amounts received from Buyer,
less ND’s fees including those otherwise payable by Seller (including costs and
expenses in excess of published fees), and ND’s obligations hereunder shall be
terminated. Termination of ND’s
obligations under this Agreement shall not itself relieve the Buyer and Seller
of any respective legal obligations that one may have as to the other.Timely
completion of transfer of any Domain Name or any funds is dependent upon the
actions of third parties and ND shall not be responsible for any delay in
transfer or payment beyond its reasonable control.
t.
Buyer and
Seller shall hold ND harmless from any loss that may arise due to currency
conversion or changes in any currency rates during the pendency of any
transaction or transfer of any funds or domain name.
u.
The provisions of this document are for the
benefit of Buyer, Seller and ND (and its affiliates) only no third party is
intended to, or shall obtain, any rights hereunder.
8.
Limitation
of Liabilities & Indemnification. ND is merely facilitating the transaction at the
request of the parties. ND is not
required, and will not be asked, to enforce this agreement or of any other
agreement among Buyer and Seller.
BUYER
EXPRESSLY AGREES THAT IT IS PURCHASING RIGHTS TO THE DOMAIN NAME AT ITS SOLE
RISK. OTHER THAN AS PROVIDED IN THIS AGREEMENT, SELLER AND ND DISCLAIM ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMIT,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
SELLER AND ND MAKE NO WARRANTY THAT THE DOMAIN NAME WILL MEET BUYER’S
REQUIREMENTS, OR THAT BUYER WILL ATTAIN SPECIFIC RESULTS OR VALUE FROM
REGISTRATION OR USE.
NEITHER BUYER NOR SELLER WILL NAME (AND
IF NAMED WILL IMMEDIATELY DISMISS) ND, OR ANY OF ITS AFFILIATES, SUBSIDIARIES,
OFFICERS, DIRECTORS, EMPLOYEES IN ANY ACTION ARBITRATION, OR OTHER PROCEEDING
THAT DIRECTLY OR INDIRECTLY RELATES TO OR ARISES OUT OF OR IN CONNECTION WITH
THIS AGREEMENT.
IN NO EVENT SHALL ND, ITS AFFILIATES,
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR LOST
PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
IN CONNECTION WITH THE SITE, THE SERVICES, OR THIS AGREEMENT (INCLUDING GROSS
NEGLIGENCE). ND’S LIABILITY, AND THE LIABILITY OF ND OR ITS AFFILIATES,
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS IN ANY CIRCUMSTANCE
IS LIMITED TO THE GREATER OF
(A) THE AMOUNT OF FEES RECEIVED BY ND IN THE SIX (6) MONTHS PRIOR TO THE ACTION
GIVING RISE TO LIABILITY, OR (B) US$100.00.
BUYER AND SELLER (EACH “INDEMNITOR”)
JOINTLY AND SEVERALLY AGREE TO INDEMNIFY, DEFEND, AND HOLD ND AND ANY PARENT,
SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR, AGENT, AND EMPLOYEE (EACH AN
“INDEMNITEE”) HARMLESS FROM ANY LOSS, LIABILITY, EXPENSE, CLAIM OR DEMAND
(INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY “CLAIM”), ARISING DIRECTLY
OR INDIRECTLY OUT OF OR IN CONNECTION WITH: (i) THE TRANSACTION, (ii) THE
BREACH OF THIS AGREEMENT BY BUYER OR SELLER, (iii) ANY ALLEGED OR ACTUAL
VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND/OR (iv)
ANY ACT OR OMISSION ON THE PART OF ANY PARTY OR INDEMNITEE (PROVIDED THAT YOU
SHALL NOT BE OBLIGATED TO INDEMNIFY ND TO THE EXTENT SUCH CLAIM AROSE AS A
DIRECT CONSEQUENCE OF AN INTENTIONAL ACT BY ND).
If ND does not elect to control its defense, Indemnitor shall do
so; provided that it shall not settle or otherwise resolve any such Claim
without ND’s express written consent unless the settlement provides for a
withdrawal or dismissal with prejudice of such action, or a written full and
final release in favor of, and as to all such Claims against ND, all without
admission of liability, payment obligation, or agreement to refrain from any
undertaking, on the part of ND or its affiliated or associated entities.
Except
as prohibited by law, any claim or cause of action against ND arising out of or
related to this Agreement, the Site, or any Services, must be commenced within
one (1) year after the cause of action arose; otherwise, such cause of action
is barred.
9.
Confidentiality. Both parties are obligated to keep any and all
information that becomes known through the course of performing this Agreement
(e.g. information relating to each other’s business practices) confidential and
shall not disclose same to any third party absent written consent or legal
obligation. ND reserves the right to
disclose and publicize the Sales price and Domain Name of such Domains
(provided that it will not disclose the identity of the Buyer or Seller).
10.
General. This
Agreement is governed by the laws of Maryland, USA, without regard to its
choice of law rules. Jurisdiction and venue shall be proper only in courts
located in Montgomery County or Greenberlt Maryland, USA as to any disputes
arising out of or relating to this Agreement.
ND is an independent service provider and no joint venture, partnership,
employment, or agency relationship exists between ND and Buyer or Seller. If any part of this Agreement is determined
to be invalid or unenforceable, the affected provision will be deemed
superseded by a valid, enforceable provision that most closely matches the
intent of the original provision and the remainder of the Agreement shall
continue in effect. This Agreement is the entire agreement between the parties
regarding the Domain Name and supersedes all prior or contemporaneous
communications and proposals, whether electronic, oral or written. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same
agreement. The absence of complete
information as to the Buyer/Seller in Section 1(b) or 1(c) shall not invalidate
this agreement as signed by the other. A
facsimile or other copy of this Agreement shall have the full force and effect
of the original. This agreement may be amended only by written consent of the
parties which is expressly agreed to in writing by ND. Any failure or delay in the exercise or
enforce any right or provision of this Agreement will not constitute a waiver
of such right or provision. Neither Buyer nor Seller may in any manner assign
or delegate their rights or obligations under this Agreement absent the written
consent of the other and ND. ND may, at
any time assign all or any part of its rights or obligations under this
Agreement or delegate some or all of its responsibilities hereunder, all
without prior notice or consent.
Buyer
and Seller each request ND to aid in the transfer of the Domain Name pursuant
to Section 7. Any individual agreeing
to this Agreement on behalf of any principal or entity represents and warrants
that they act with complete authority to bind such entity to each provision of
this Agreement.