NAMEDRIVE GENERAL TERMS OF SERVICE
These terms and conditions (“Agreement”) apply to and upon your access and/or use of the NameDrive, SARL (“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.
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.
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 IP SARL. 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.
Mail: NameDrive IP SARL
5, rue Prince Jean
User Service & Support:
Tel: +352 26740103,
FAX: (+352) 267 40 107
15. DISPUTES – ANY DISPUTE UNDER $10,000 SHALL BE ARBITRATED IN LUXEMBOURG USING THE INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION (ICCA) ARBITRATION SYSTEM.ALL HEARINGS SHALL BE HELD IN LUXEMBOURG. 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 LUXEMBOURG.
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 LUXEMBOURG 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 Luxembourg, without regard to its choice of law rules. You consent to the jurisdiction of, and venue in, courts located in Luxembourg 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.
NAMEDRIVE 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 entered in your account and directed to the DPP. If you wish the advertising to be that from Google then you must use our Nameserver. The Nameservers for DNS are: ns1.fastpark.net ns2.fastpark.net. If you wish the advertising, if any, to be other than Google then you may use URL forwarding. The forwarding URL address is http://www.ndparking.com/domainname.com where [domainname.com] is replaced by the userÕs domain. 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 Galleries, 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.
5) PAYMENTS: Payments to you are based on the data we receive from our advertising partners. Our advertising partners have the right to claw back payments based on their analysis of the data even months after it is paid to you. These claw backs are at their sole discretion and if they claw back money from us based on the data associated with your domain names than we will accordingly charge you for those claw backs out of future payments that would be owed to you. You have no right to object to these claw backs under any circumstances. When we do pay you, we pay by PayPal (our preferred method), WebMoney and bank wire. If you choose PayPal, you will be paid once you earn more than $20 (“payout level”). We pay using Mass Pay (yes, we pay the fee for the use of Mass pay, meaning you receive exactly the amount displayed in your NameDrive account). If you choose WebMoney the minimum payout level is $50. Other payout methods may or may not be added. If we add additional payout levels and list out the minimum payout somewhere else on our website and not in these terms and conditions then those minimums shall apply and are made a part of these terms and conditions.
NDX MARKET PLATFORM TERMS
Welcome to the NameDrive IP SARL (“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 IP SARL (“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.
SELLERS’ LISTING POLICIES
If you are listing a Domain Name (“Domain”) for sale with NameDrive IP SARL (“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.
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 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.
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 United States and in European Union countries. When you enter sensitive information (such as credit card or bank information) on our registration or order forms, we undertake to encrypt that information using secure socket layer or other similar technology (SSL). We treat data as an asset and strive to protect it loss and unauthorized access. We employ many different security techniques to protect data from unauthorized access by users whether they are “inside” or “outside” ND. You understand and agree that "perfect security "does not exist on the Internet or with any digital or physical data collection and retention systems.
ND personnel are trained appropriately regarding the application of privacy practices and the importance of protecting your information.
11. Notice, Modification
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 IP SARL (“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.
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
1. Name of Company
2. Contact information (including email address)
3. List of intellectual property right(s) at issue and jurisdictions in which registered
4. The specific domain names at issue.
5. If certain affiliates or partners are permitted to use your trademark in their domain names, list all company names in your letter.
6. Include the following statement: “I have a good faith belief that use of the trademarks described above with domain names described above are not authorized by the trademark owner or its agent, nor is such use otherwise permissible under law.”
7. Include the statement: “I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.”
8. Your signature and BLOCK PRINTED FULL NAME AND TITLE.
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.
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 United States law, our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification. We may also document notices of alleged infringement on which we act. Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice may be sent to a third-party which may publish and/or annotate it.
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 EU SARL, 10, Rue du Bocksberg, L-6614 Wasserbillig. Please also send the same documents to firstname.lastname@example.org
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 Luxembourg, 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: 10, Rue du Bocksberg, L-6614 Wasserbillig, Attn: DMCA CLAIMS - Counter Notification. Please also email any and all notifications to email@example.com
For any additional questions regarding the DMCA process for Namedrive products and services please contact us using the “Contact us” information on the Site.
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 IP SARL (“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 than two (2) years are subject to escheatment in Luxembourg 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 THEGREATER 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 Luxembourg, without regard to its choice of law rules. Jurisdiction and venue shall be proper only in courts located in Luxembourg 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.
11. Third Party Advertisers, Your Opt-Out Rights. We use third-party companies to serve advertisements and collect non-personally identifiable information when you visit our website. These companies may use information (not including your name, address, email address, or telephone number) about your visits to our website and other sites in order to provide advertisements on our website, other sites and other forms of media about goods and services that may be of interest to you. If you would like more information about the practices of some of these third party advertising companies and learn which of these companies allow you to opt-out of this type of information collection, please click here.