General Terms of Service
This Agreement shall govern the terms and conditions of your participation in the Domain Parking and Domain Listing Programs (collectively, the “Programs”) offered by DomainsX, LLC (the “Company”). By using the domain, sub-domains, and affiliated domains of www.DomainsX.com (collectively, the "Site") and/or utilizing the Company’s domain monetization and/or domain Listing services (collectively the "Services"), you ("you" or "Member") acknowledge that you have read, understand and agree to be bound and abide by the terms and conditions of this Agreement, as amended and/or supplemented from time to time by Company in its sole and absolute discretion. It is your responsibility to review this Agreement periodically, and if at any time you find this Agreement unacceptable, you must immediately leave the Site and cease all use of the Site Programs and Services.
WHEREAS, Company offers domain monetization and domain listing services to individuals and entities that wish to park or list domain names for sale;
WHEREAS, Company as part of its business has established direct relationships with advertising partners and their agents to generate revenue on and/or through the use of third party domain names, websites and/or Internet traffic;
WHEREAS, Member wishes to monetize or list one or more domain names for sale through use of the Site, Programs and Services; and
WHEREAS, Company wishes to offer such Services to Member upon Member’s proper enrollment in the Programs pursuant to the terms and conditions set forth in this Agreement.
WHEREAS, Schedules A, B, C, D, and E are attached to this agreement and incorporated herein by this reference as though set forth in full.
NOW, THEREFORE, in good consideration of the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Member and Company agree to the following terms and conditions.
1. Principal/Agent Authority
If you are entering this Agreement on behalf of a business entity, you represent that you have the authority to bind that entity to this Agreement. If you are acting through an agent, you are agreeing that, if your agent (e.g., employee, legal counsel, investigator, etc.) used the Site, Programs and/or Services on your behalf, you are bound as a principal by all in this Agreement. Your continued use of the Site, Programs and/or Services will ratify any unauthorized actions of your agent. You are responsible for any errors made by your agent, and any 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 THE SITE, PROGRAMS OR SERVICES. Upon opening an account you will be you will be prompted to provide your email address and to create a password. Once confirmed, you will thereafter need to enter your email address and password to log in to the Site. It is your responsibility to protect this information and prevent unauthorized use of your account. You will be responsible for all activities undertaken by you using the Site and/or Services, including those undertaken by others using your user name and password.
2. Incorporation of Other Documents
These General Terms of Service are supplemented by the terms described in each of the applicable following schedules, all of which are incorporated herein by this reference as though set forth in full:
3. Language and Currency
The English version shall control as to any conflicts amongst any various language translations that may be provided. All commission payments and sales transactions shall be made exclusively in US currency.
4. Eligible Users
You may not use the Site, Programs or Services if: (a) you are less than 18 years old, (b) you lack legal capacity to enter into legally binding contracts, or (c) use of the Site, Programs or Services is prohibited by law in the country where you are located. Company may require further information or your satisfaction of Program eligibility requirements prior to use of certain Services. Company reserves the right to limit or refuse access to the Site, Programs, or any Service.
5. Acceptable Use of the Site, Programs and Services
You may not use the Site, Programs or Services provided through or in connection with the 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 Company 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 Site, Programs or Services, or 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, copyright, trademark, trade secret, naming, privacy, likeness, or publicity rights; (j) violate any applicable government laws or regulations. Company does not condone or allow spam. You may not use the Site, Programs or Services to advertise, promote, market or solicit offers to acquire goods/services that compete with our Site, Programs or Services. Company will cooperate with legal authorities and Internet service providers in investigating and releasing information about users who violate this Agreement or any incorporated terms and conditions. Please also refer to Schedules A, B and D.
6. Ownership and Licenses
Except as expressly set forth herein, nothing in this Agreement shall vest in Member any right, title or interest in the Company intellectual property or any copyright, trademark or other intellectual property rights therein. All service marks, logos, trade names, trade dress, and trademarks of Company (collectively the "Marks") are the exclusive property of Company and nothing in this Agreement shall grant you the license to use such Marks. All intellectual property rights in the Programs and Services, including without limitation all computer code, audio, graphics, multimedia, images, sounds, and text incorporated into the Programs or Services, are owned exclusively by Company and/or its partners and are protected by United States copyright laws and international copyright treaty provisions. Any violation of the terms set forth herein is expressly prohibited by law and may result in severe civil and criminal penalties. Subject to the terms and conditions set forth herein, and during the entire Term of this Agreement, Member grants to Company the exclusive worldwide license to use Member’s domains to provide the Company Programs and Services. Notwithstanding the foregoing, except as expressly set forth herein, nothing in this Agreement shall vest in Company any right, title or interest in Member’s domains or any copyright, trademark or other intellectual property rights therein. Each party reserves all rights in its intellectual property not otherwise specifically granted herein.
7. Privacy and Confidentiality
as set forth in Schedule E
. (c) Company 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 the Site (including any partner or affiliated websites), in Company’s sole discretion, without notice at any time. (d) Further, you warrant that, except as expressly permitted, you shall not share, disseminate, or otherwise exploit any information provided to you by or on behalf of Company with any third party, including, but not limited to, the personal information of third parties.
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 of the accompanying Schedules A through E, 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 Company’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.
9. Term and Termination
You remain bound by this Agreement until and unless this Agreement is properly terminated. Company may terminate this Agreement and/or your access to the Site, Programs or any Service 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 Company or any other user regarding any Services provided. Notwithstanding termination of this Agreement by Company or you, the provisions of Sections 6, 7, 8 and 10, 11, 12, 16, 18 and 22 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 Company is under no obligation to maintain any such data or information.
10. Disclaimer of Liability
Company will not be responsible for any act or omission by you or any third party, including, without limitation, any failure of any person to perform any contractual or other obligations to you, Company or any third party and any violation of intellectual or privacy rights. Although Company may periodically monitor the Site, user behavior, intellectual property, or privacy matters, you agree that Company 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 Company in connection with any domain name ownership dispute or any claim that a domain name or use thereof violates the intellectual property rights of you or any third party. Company is not responsible for the content or your use of any website linked to or from the Site, Programs or Services (even if such link is provided by Company). Company 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 Company 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, PROGRAMS AND/OR SERVICES, INCLUDING ANY DATA PROVIDED, IS AT YOUR SOLE RISK. THE ACCURACY, CONDITION AND AVAILABILITY OF THE SITE, PROGRAMS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS. COMPANY 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. COMPANY MAKES NO WARRANTY THAT THE SITE, PROGRAMS OR SERVICES WILL MEET YOUR NEEDS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. COMPANY 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 COMPANY, 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 COMPANY, AND/OR ITS AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IS LIMITED IN ALL CIRCUMSTANCES 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) US$100.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY AND ANY SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR, AGENT, AND EMPLOYEE (EACH AN “INDEMNITEE”) FROM ANY ACTION, LOSS, LIABILITY, DAMAGES, RECOVERIES, SETTLEMENTS, EXPENSE, CLAIM OR DEMAND (INCLUDING ATTORNEY, ACCOUNTANT, AND EXPERT WITNESS FEES AND COSTS) (COLLECTIVELY “CLAIM”), KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH (i) ANY ACT OR OMISSION BY YOU, INCLUDING, YOUR USE OF THE SITE, PROGRAMS OR SERVICES, OR YOUR BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT WITH ANY THIRD PARTY OR WITH COMPANY, INCLUDING ONE INCORPORATED BY REFERENCE, (ii) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF COMPANY 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 Company elects to control its defense, Company may settle or resolve such Claim in its sole discretion and foregoing indemnification shall still apply. If Company elects not to control its defense you will do so. However, you may not settle or resolve any such Claim 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 Company or any Indemnitee. Any claim or cause of action arising out of or related to this Agreement, the Site, Programs or Services must be commenced within one (1) year after the cause of action arises; otherwise, such cause of action is permanently barred. NO STATEMENTS, ADVICE OR INFORMATION PROVIDED TO YOU BY ANY EMPLOYEE OR REPRESENTATIVE OF COMPANY SHALL 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.
12. 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 Company and Company’s 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. Company is the registered owner of the “DomainsX” trademark. Other names, products or services that may be mentioned in the Site may be the trademarks of their respective owners. All such rights are hereby expressly reserved. If you believe that the Site or any third party using the Site, Programs or Services is infringing or violating your intellectual property rights, you must follow the instructions in our Infringement Notification Policy as set forth in Schedule E
13. Your Representations and Warranties
In addition to those stated elsewhere, you represent and warrant to Company 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; (c) you or your direct partner own, operate and control each domain listed in your user account; and (d) you will not use the Site, Programs 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.
Although Company generally will strive to provide ten (10) calendar days notice of any amendments, Company 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 Company, or (ii) upon your accessing the Site and/or use of any Programs or Services following the date of posting. Other than posting amendments on the Site, Company 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 Company.
Submittals of information to the Company platform or to any user account, including, without limitation, domain name listings, pricing, offers, counter-offers, and acceptances, as well as any deadlines or beginning and ending dates and times for purchasing any listed domain, are all effective upon the date and time applied by Company 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 Company in New York, New York (or such other location as Company may locate its relevant servers). Any date or time indications, including, without limitation time-remaining information is provided without warranty of any nature. Company assumes no responsibility for failure to accurately or otherwise time-stamp any information submitted, whether related to the purchase or sale of a listed domain or otherwise.
You hereby agree to accept notices (including service of process) by any of the following means: (i) to the address or email listed in your account, or (ii) transmission to the address 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 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 give us notice by using our online contact form or by post to DomainsX at 530 West 6th Street, Los Angeles, CA, 90017. You warrant that you will maintain accurate and effective contact information for the purposes of complying with the requirements of this section. Failure to maintain accurate and effective contact information will be considered a breach of this agreement. From time to time, Company, in its sole discretion, may verify the accuracy and efficacy of your contact information. For infringement matters you must follow the instructions in our Infringement Notification Policy as set forth in Schedule E
. Your notice to us shall be effective only upon our confirmation of our actual receipt.
Any failure of performance by you under this Agreement may be considered a material breach of this Agreement. In event of your breach, Company 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. Company may (but is not required to) give you written notice describing the breach and give you an opportunity to cure or establish to Company’s satisfaction that you have not in fact violated your obligations. Provision of such notice is a courtesy and shall not limit Company’s right to undertake any action. If you are paid an amount in error and subsequently fail to comply with Company’s demand to return the amount paid in error, then such failure to comply shall be considered a material breach. Accordingly, you agree to cooperate with Company and sign any documents necessary to facilitate the return of any funds paid to you in error. You specifically grant Company’s authorized 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 any and all attorneys’ fees and costs, and any punitive damages awarded by a Court or Arbitrator.
18. Choice of Law, Venue and Jurisdiction
This Agreement is governed by the laws of the State of New York, without regard to its choice of law rules. You hereby irrevocably consent to the exclusive jurisdiction of, and venue in, the state and federal courts located in New York, NY as to any disputes arising out of or relating to the Site or your use of the Programs or Services. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement.
19. Independent Contractors
You acknowledge the relationship of the parties as 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 Company.
20. Severability and Waiver
If, for whatever reason, a court of competent jurisdiction finds any terms or conditions in this Agreement unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision hereof. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
21. Integrated Agreement
Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and Company with respect to the Site, Programs and Services and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Company with respect to the Site, Programs 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.
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 Company’s express, written consent and any such assignment shall not relieve you of your obligations. Company may freely assign or delegate all or any part of its rights or obligations under this Agreement without prior notice or consent.