Membership Agreement
Revised February 7, 2024
- USE
- SECURITY
- U.S. EXPORT LAWS
- COMPLIANCE WITH LOCAL LAWS
- GOVERNMENT USE
- INTELLECTUAL PROPERTY OWNERSHIP
- MEMBER'S LICENSE GRANT TO SITE
- MEMBER'S WARRANTIES AND OBLIGATIONS TO OTHER MEMBERS AND COMPANY
- LIMITED WARRANTY FOR SOLD DOMAINS
- TRANSACTION ASSURANCE
- FEES
- VERIFICATION
- PROHIBITED DOMAIN NAMES
- trademarks, service marks, company names, and names of specific natural persons (including misspellings), such as McDonalds.com, macdnalds.com, xcerox.com, micaljordan.com;
- words which would evoke a question of legality, such as automatic weapons or military-style assault weapons, cracked or pirated software (especially words like appz, warez, cracks, crackz, hacks, hackz), falsely obtained passwords (especially words like passwordz), prostitution services and questionable substances or words alluding to ingestion of questionable substances;
- defamatory, libelous or threatening language, such as racial or religious epithets or language related to doing physical harm to people or their property;
- vulgar or obscene language, such as f-ckyu.com;
- any language that might advocate or glorify torture, rape or any other illegal or harmful act; and
- any language that is sexually explicit, including but not limited to language related to prostitution, child pornography, underage sex, bestiality, necrophilia, incest or pedophilia.
- any language that promotes or encourages terrorism
- LICENSE
- DOMAIN NAME SERVERS
- ADMINISTRATIVE SERVICES
- PAYMENTS
- PROHIBITED ACTS
- SUBLICENSING AND ASSIGNMENT
- IMPLEMENTATION
- AUDIT RIGHTS
- SETTLEMENT OF ACCOUNTS.
- REPRESENTATIONS AND WARRANTIES
- THIRD PARTY BENEFICIARY
- PROHIBITION OF REVERSE ENGINEERING
- CONFIDENTIALITY
- PUBLICITY
- LIMITATION OF LIABILITY
- DISCLAIMER OF WARRANTIES
- INDEMNIFICATION
- WAIVER
- ENTIRE AGREEMENT; MERGER; SEVERABILITY
- Disputes, Binding Individual Arbitration and Waiver of Class Actions and Class Arbitrations.
- Disputes. The terms of this Section shall apply to all Disputes between you and Afternic, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced in this Agreement and available here. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Afternic arising under or relating to any Afternic Services or Products, Afternic’s websites, these terms, or any other transaction involving you and Afternic, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND AFTERNIC AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR AFTERNIC FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
- Binding Arbitration. You and Afternic further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these terms; (ii) these terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
- Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
- Dispute Notice. In the event of a Dispute, you or Afternic must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Afternic must be addressed to: GoDaddy, 2155 E. GoDaddy Way, Tempe, AZ 85284, Attn.: Legal Department (the “GoDaddy Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Afternic and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Afternic may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
- WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND GODADDY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR GODADDY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
- Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these terms, the rules set forth in these terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms, including, but not limited to, any claim that all or any part of these terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Maricopa County, Arizona, at your option.
- Initiation of Arbitration Proceeding. If either you or Afternic decide to arbitrate a Dispute, we agree to the following procedure:
- Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
- Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
- Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
- Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Afternic or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Afternic is entitled. The discovery or exchange of non-privileged information relevant to the Afternic may be allowed during the arbitration.
- Arbitration Fees and Payments.
- Disputes involving $75,000.00 or less. Afternic will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject Afternic’s last written settlement offer made before the arbitrator was appointed (“Afternic’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Afternic’s last written offer, Afternic will: (i) pay the greater of the award or $1,000.00; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Afternic agree on them.
- Disputes involving more than $75,000.00. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Disputes involving any amount. In any arbitration you commence, Afternic will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Afternic commences, Afternic will pay all filing, AAA, and arbitrator’s fees and expenses. Afternic will not seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
- Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If not filed within one year, the claim or dispute will be permanently barred.
- 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY AFTERNIC BY E-MAILING LEGALOPTOUT@GODADDY.COM WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name, (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in this Agreement.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in this Agreement. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Agreement. In the event that you opt-out consistent with the procedure set forth above, all other terms contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
- Amendments to this Section. Notwithstanding any provision in these terms to the contrary, you and Afternic agree that if Afternic makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Afternic’s address) in these terms, Afternic will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
- Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these terms.
- Exclusive Venue for Other Controversies. Afternic and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Maricopa County, Arizona, or the United States District Court for the District of Arizona, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.
- SURVIVAL
- BREACH
- NO AGENCY CREATED
- COMPLIANCE WITH CAN-SPAM ACT OF 2003 AND APPLICABLE STATE ELECTRONIC COMMUNICATION LAWS. You will not send unsolicited commercial electronic communications, or otherwise violate the CAN-SPAM Act of 2003 ("the Act"), as amended from time to time, with respect to your enrollment in the Affiliate Program. Further, You hereby agree to, at all times, remain in full compliance with the Act and any further applicable Federal or State laws with regards to commercial electronic communication. Further, You will indemnify, defend, and hold harmless Afternic.com from any and all third party claims resulting or arising from Your acts or omissions that are in violation of the Act or any Federal or State law regarding the regulation of commercial electronic communications.
- TRACKING. The assets, products, and tools ("the Product") provided to You by Afternic.com as part of your enrollment in the Affiliate program provide Afternic.com with the information necessary to ensure domain sales generated by your enrollment are properly attributed to You. As such, to ensure proper payment calculations you must use the Product as instructed by Afternic.com. You hereby agree not to modify, disable, corrupt, or in any way alter the Product provided to You in relation to the Affiliate Program.
- PAYMENTS. You will be paid monthly your percentage of Afternic.com's recognized and received gross revenue generated from any domain name sale validly attributed to your enrollment in the Affiliate Program through the tracking data obtained through the Product. Such payment, minus any expenses, will be made fifteen (15) days after Afternic.com has received payment for such any such sale(s) during the preceding month. If the amount due to You under the Affiliate Program is less than one hundred United States dollars (US$100), Afternic.com will defer payment to You either until the Affiliate Program is terminated or until the amount due to You under the Affiliate Program is at least US$100.
It is Your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that You receive pursuant to the Affiliate Program, and You agree to indemnify Afternic.com and any third-party beneficiary to the Affiliate Program for any claim or assessment of taxes and any costs or damages relating thereto. Afternic.com is entitled to offset any refunds You are obligated to provide under the Affiliate Program against any payments that would otherwise be due to You. Fraudulent, questionable, or low-quality traffic will not be counted when determining Your payments due under the Affiliate Program. This determination is and will be made by Afternic.com in its sole discretion. - INTELLECTUAL PROPERTY. Subject to the terms of the Affiliate Program, each Party continues to own its respective items of intellectual property, including its patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by Afternic.com to You, or by any disclosure of any confidential information to You under the Affiliate Program. You agree that You will not create or attempt to create a copy, derivative work, substitute service or substitute product using the services provided under the Affiliate Program or any information related thereto. You shall be solely responsible for any materials that appear alongside the Product. You hereby agree to adhere to all applicable laws and regulations in conducting your business, including, but not limited to all privacy laws both state and federal. You will not commit any act or omission that dilutes, tarnishes, or otherwise harms Afternic.com's intellectual property or business reputation in relation to the Affiliate Program. Any act or omission Afternic.com deems to be in violation of this obligation will result in your immediate termination from the Affiliate Program. Afternic.com reserves and any all claims, rights, and or remedies in connection with such act or omission.
- SUBLICENSING AND ASSIGNMENT. You have no right to transfer, sell, lease, syndicate, sublicense or assign of any of Your rights under the Affiliate Program, including Your right to use ads, codes or other content provided by Afternic.com and any attempt to do so shall be null and void. Except as otherwise expressly provided herein, the provisions of the Affiliate Program shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. Afternic.com may assign its rights and duties under the Affiliate Program to any party at any time without notice to You. You may not assign Your rights and duties under the Affiliate Program to any party at any time without Afternic.com's written prior consent.
- IMPLEMENTATION. You agree that your enrollment in the Affiliate program will be decided by Afternic.com in its sole discretion, which shall be subject to change and modification by Afternic.com at any time.
- TERM. This Agreement will become effective upon Your acceptance of the terms and conditions set forth herein, as acknowledged by Your: (i) submission of registration information; and/or (ii) Afternic.com's acceptance of your enrollment in the Affiliate Program, which shall be at Afternic.com's sole discretion. The Agreement shall continue in effect until otherwise terminated pursuant to the terms hereof (the "Term"). Notwithstanding the foregoing, You acknowledge that Afternic.com may change the Product at any time.
- TERMINATION. Either Party may terminate the Affiliate Program at any time for any reason, effective immediately upon notice of such intent to terminate given by the terminating Party.
- SETTLEMENT OF ACCOUNTS. Upon expiration or termination of the Affiliate Program, Afternic.com will pay You the balance due to You as of the date of expiration or termination within thirty (30) days of expiration or termination.
- REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that: (1) they each have all requisite power and authority to legally execute, deliver and perform their obligations under the Affiliate Program; (2) the Affiliate Program has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each Party by the other Party in accordance with its terms; and (3) the execution, delivery, and performance of the Affiliate Program by You and the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation; any order, judgment, or decree; any provision of corporate by-laws or other documents; or any agreement or other instrument. You further represent and warrant that You will use the information and services provided by Afternic.com in a manner that complies with any and all applicable laws.
- PROHIBITION OF REVERSE ENGINEERING. You shall not and shall not allow any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the services provided under the Affiliate Program or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of Afternic.com and its advertisers.
- CONFIDENTIALITY. You shall keep confidential all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementations, documentation, functional and interface specifications, customer information, pricing information, marketing information and other information related to the subject matter of the Affiliate Program, whether written, transmitted, or oral, including but not limited to URLs, parameters, data reported, gross revenue figures, net revenue figures, amounts paid to You by Afternic.com, the terms of the Affiliate Program, and the look, feel and functionality of the service.
- PUBLICITY. You acknowledge and agree that Afternic shall have the right to make public and share with third parties certain information in connection with the sale or purchase of domain names on the website, including but not limited to (a) the name of the domain name sold or purchased, (b) the sale or purchase price of the domain name sold or purchased, and (c) information relating to the timing of the sale or purchase. Furthermore, You shall not create, publish, distribute, or permit any communication that makes reference to Afternic.com or any third-party beneficiary to the Affiliate Program in connection with the Affiliate Program, or uses any of Afternic.com's trademarks or service marks without receiving prior written consent from a duly-authorized representative of Afternic.com. You give Afternic.com the right to disclose Your identity in Afternic.com's marketing and promotion materials, both electronic and printed.
- LIMITATION OF LIABILITY. IN NO EVENT WILL AFTERNIC.COM OR ANY THIRD PARTY BENEFICIARY TO THIS AGREEMENT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AFTERNIC.COM OR SAID THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AFTERNIC.COM FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT; AND INFRINGEMENT. ANY LIABILITY OF AFTERNIC.COM TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED AND RECOGNIZED BY AFTERNIC.COM WITH RESPECT TO YOUR ENROLLMENT IN THE AFFILIATE PROGRAM IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST AFTERNIC.COM. YOU AGREE THAT YOU AND AFTERNIC.COM HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS, UNLESS SPECIFIED OTHERWISE.
- DISCLAIMER OF WARRANTIES. ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. AFTERNIC.COM EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. AFTERNIC.COM ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, AFTERNIC.COM DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE THROUGH THE AFFILIATE PROGRAM WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE AFFILIATE PROGRAM WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY AFTERNIC.COM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY AFTERNIC.COM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY AFTERNIC.COM UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM AFTERNIC.COM. YOU ACKNOWLEDGE THAT AFTERNIC.COM CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGES THE LEGAL RIGHTS OF OTHERS.
- INDEMNIFICATION. You at Your own expense will indemnify, defend and hold harmless Afternic.com and any third-party beneficiaries to the Affiliate Program and their employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against Afternic.com or any third-party beneficiary to the Affiliate Program by You or another based on or arising from any claim or alleged claim arising out of your enrollment in the Affiliate Program ; any claim or alleged claim arising from the Affiliate Program; a third party claim that any act or omission by You in connection to the Affiliate Program infringes any copyright, trade secret or trademark of a third party; or Your use of the services provided under the Affiliate Program in any manner inconsistent with or in breach of the Affiliate Program. You will not enter into a settlement or compromise of any such claim without Afternic.com's prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by Afternic.com in connection with or arising from any claim, suit, action or proceeding.
- WAIVER. No Party shall be deemed to have waived any claim arising out of the Affiliate Program, or any power, right, privilege or remedy under the Affiliate Program through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any provision of the Affiliate Program shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
- Disputes, Binding Individual Arbitration and Waiver of Class Actions and Class Arbitrations.
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.- Disputes. The terms of this Section shall apply to all Disputes between you and Afternic, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced in this Agreement and available here. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Afternic arising under or relating to any Afternic Services or Products, Afternic’s websites, these terms, or any other transaction involving you and Afternic, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND AFTERNIC AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR AFTERNIC FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
- Binding Arbitration. You and Afternic further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these terms; (ii) these terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
- Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
- Dispute Notice. In the event of a Dispute, you or Afternic must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Afternic must be addressed to: GoDaddy, 2155 E. GoDaddy Way, Tempe, AZ 85284, Attn.: Legal Department (the “GoDaddy Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Afternic and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Afternic may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
- WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND GODADDY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR GODADDY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
- Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these terms, the rules set forth in these terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms, including, but not limited to, any claim that all or any part of these terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Maricopa County, Arizona, at your option.
- Initiation of Arbitration Proceeding. If either you or Afternic decide to arbitrate a Dispute, we agree to the following procedure:
- Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
- Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
- Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
- Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Afternic or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Afternic is entitled. The discovery or exchange of non-privileged information relevant to the Afternic may be allowed during the arbitration.
- Arbitration Fees and Payments.
- Disputes involving $75,000.00 or less. Afternic will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject Afternic’s last written settlement offer made before the arbitrator was appointed (“Afternic’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Afternic’s last written offer, Afternic will: (i) pay the greater of the award or $1,000.00; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Afternic agree on them.
- Disputes involving more than $75,000.00. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Disputes involving any amount. In any arbitration you commence, Afternic will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Afternic commences, Afternic will pay all filing, AAA, and arbitrator’s fees and expenses. Afternic will not seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
- Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If not filed within one year, the claim or dispute will be permanently barred.
- 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY AFTERNIC BY E-MAILING LEGALOPTOUT@GODADDY.COM WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name, (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in this Agreement.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in this Agreement. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Agreement. In the event that you opt-out consistent with the procedure set forth above, all other terms contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
- Amendments to this Section. Notwithstanding any provision in these terms to the contrary, you and Afternic agree that if Afternic makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Afternic’s address) in these terms, Afternic will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
- Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these terms.
- Exclusive Venue for Other Controversies. Afternic and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Maricopa County, Arizona, or the United States District Court for the District of Arizona, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.
- NOTICE. Any notice or other communication required or permitted to be delivered to Afternic.com under the Affiliate Program shall be in writing and deemed properly delivered by certified mail, return receipt requested, to GoDaddy.com, LLC., 2155 E. GoDaddy Way, Tempe, AZ 85284, attn: Afternic.com. Any notice or other communication required or permitted to be delivered to You by Afternic.com under the Affiliate Program shall be deemed properly delivered by e-mail to the contact address that You have provided to Afternic.com.
- ENTIRE AGREEMENT; MERGER; SEVERABILITY. This Agreement, incorporating any other applicable Afternic.com policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of the Affiliate Program, except as specifically set forth herein. If any provision of the Affiliate Program shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of the Affiliate Program shall not in any way be affected or impaired thereby.
- AMENDMENTS. The Parties shall attempt to resolve any disputes concerning the Affiliate Program through the services of a mutually-acceptable arbitrator prior to filing suit.
- SURVIVAL. The following provisions shall survive the termination of the Affiliate Program or the cancelled enrollment in the Affiliate Program hereunder: Sections 1, 4, 11,14-16, 11-22, and 24-25.
- BREACH. In addition to any other remedy at law or equity for a breach of any provision of the Affiliate Program, Afternic.com retains the right to terminate the Affiliate Program with You in response to any breach without prior notification or warning, along with forfeiture of any moneys due You.
- NO AGENCY CREATED. You and Afternic.com are independent contractors, and nothing in the Affiliate Program creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of Afternic.com.
- Seller must be an Afternic member. The terms of the Afternic Membership Agreement apply to all Fast Transfer transactions. To become a member, and participate in Fast Transfer, seller must join Afternic. The new user registration page is available at: http://sso.afternic.com/account/create.
- Seller must enroll in the Afternic DLS Premium Promotion service. For information on enrolling, go to the DLS Premium Promotion page. Specific terms related to Fast Transfer may be found at that internet address. Seller must enroll and accept the terms before seller can sell a Listed Domain via Fast Transfer.
- Seller must register each Listed Domain with one of our Fast Transfer partners or, seller may transfer the Listed Domain to one of our Fast Transfer partners now. It must be registered with a Fast Transfer partner before seller is permitted to list a domain under the Fast Transfer process. A list of Fast Transfer partners is available at: DLS Premium Promotion page.
- Seller must provide Afternic a Buy Now Price. Fast Transfer is primarily an e-commerce transaction and may not involve the assistance of a salesperson. Seller must provide Afternic pricing information in advance. If seller does not supply a Buy Now Price and a Minimum Offer, the posting will either fail, or seller will experience a delay in having a Listed Domain posted for sale. Seller's domain may be listed only after seller has provided Afternic a Buy Now Price and Afternic has taken reasonable steps to ensure the validity of the Listed Name. Seller agrees that if a buyer offers the Buy Now Price that the domain will be automatically transferred from Seller to Buyer.
- Seller must provide Afternic prompt notice. Under seller notifies Afternic that a seller has sold the Listed Name(s) outside the scope of the Fast Transfer partners and/or process, Afternic and its Fast Transfer partners shall retain the right to sell the seller's Listed Name(s) until seller confirms that Afternic is in receipt of seller's notification.
- WHEN YOU ACTIVATE FAST TRANSFER, YOU AGREE TO ALLOW US TO CANCEL YOUR DOMAIN OWNERSHIP PROTECTION SERVICE UPON FULFILLMENT OF THE PURCHASE OF YOUR DOMAIN. THE DOMAIN OWNERSHIP PROTECTION SERVICE WILL CONTINUE TO APPLY TO YOU DOMAIN NAME WHILE LISTED FOR SALE AND WILL ONLY BE CANCELED UPON THE FULFILLMENT OF THE SALE. BY ACTIVATING FAST TRANSFER YOU AGREE TO ALLOW THE TRANSFER OF YOUR DOMAIN NAME RESULTING FROM THE SALE OF SAID DOMAIN NAME ON ANY OF GODADDY'S PLATFORMS, INCLUDING PREMIUM LISTINGS, REGARDLESS OF WHEN YOU PURCHASED THE FAST TRANSFER SERVICE.
- Seller acknowledges and agrees that Afternic has the right to verify any proposed Listed Domain sale transaction or the underlying registration of such Listed Domain. Verification may delay the posting of a Listed Domain. Afternic, as a regular practice, will verify all proposed Listed Domains with a listing price of $10,000 USD or more. By posting a Listed Domain with a Sale Price equal to or exceeding $10,000 USD, seller agrees that a reasonable verification delay may occur.
- Afternic reserves the right to withhold from posting a Listed Domain for any reason.
- Seller specifically authorizes and directs Afternic to sell a Listed Domain for the Buy Now Price at any time.
- Seller makes the following representations and warranties to Afternic:
- Seller represents and warrants that it is in fact the legal registrant and owner of each of its Listed Names, each free and clear of any encumbrances, liens of any nature, including third party intellectual property claims or registration fees due the Transferring Registrar (other than those created by the applicable registration agreement) ("Liens");
- Seller hereby authorizes and legally empowers Afternic to offer each Listed Name for sale via Fast Transfer, and upon completion of the sale, seller shall pass good and marketable title to buyer free and clear of any Liens;
- each Sold Domain shall be immediately transferable from the Transferring Registrar, without restriction; and
- Seller has no actual knowledge that any Listed Domain is the subject of an intellectual property claim of any third party.
- Seller is prohibited from rejecting/cancelling a completed sale to a buyer once a buyer commits to the purchase of a Listed Domain by clicking the 'confirmation' button on the Afternic, BuyDomains or Reseller/Partner site.
- Seller may change the Buy Now Price at any time; provided however, seller understands and agrees that by changing the Buy Now Price, the Listed Domain(s) is subject to a new valuation by Afternic. In addition, due to the nature of e-commerce and the internet, Afternic is unable to guarantee that any change to the Buy Now Price shall be published on Afternic and its reseller sites before an offer is received. Seller is obligated to complete a transaction with a confirmed buyer for the posted price even if seller tried to increase the Buy Now Price prior to the time of the purchase. Additionally, the Buy Now Price specified for any listing on Afternic must be equal to the price listed on any for sale lander used by Seller.
- Seller understands and agrees that the Listed Domain may, at Afternic's discretion, be made available to Afternic's Fast Transfer reseller partners. Afternic does not warrant or guarantee that a specific Listed Domain will be displayed or offered for sale by a particular Reseller Partner.
Seller shall pay Afternic the applicable commission according to the fee schedule available in the Transaction Fees section. Sales are not final until seven (7) days after the transaction has been completed.
- Seller specifically authorizes and directs Afternic to act as its Designated Agent when a Listed Domain sells. As Designated Agent, Afternic will facilitate the transfer and change of domain name contact information for the Sold Domain. As such, Seller grants Afternic the power to explicitly consent to the material change of registrant contact information in order to facilitate immediate transfer of the Sold Domain.
- Buyer specifically authorizes and directs Afternic to act as its Designated Agent. As Designated Agent, Afternic will facilitate the transfer and change of domain name contact information for the Purchased Domain. As such, Buyer grants Afternic the power to explicitly consent to the material change of registrant contact information to facilitate immediate transfer of the Purchased Domain.
Afternic will remit payment of the purchase price for a Sold Domain to the seller after the expiration of seven (7) days of the purchase of the Sold Domain, net of the applicable commission according to the fee schedule available in the Transaction Fees section, except where Afternic has received a Fraud Notice from its reseller partner.
- In the case where a Fraud Notice has been issued and there is no possibility of a dispute resolution procedure, within seven (7) days, Afternic or its Reseller Partners shall cancel the sale transaction and make reasonable commercial efforts to return the Listed Domain back to the Transferring Registrar and under seller's control.
- In the event that a credit card company notifies Afternic or one of our Fast Transfer partners of a chargeback, upon prompt notification and return of the sold name in question to Afternic, Afternic or one of our Fast Transfer partner shall have the right to request a refund of the sale price minus the commission already received, or, in the alternative, a refund of the actual amount remitted to Afternic for the sold name, provided, however, that such request is made within one-hundred eighty (180) days from the date of purchase of the relevant name(s). In such cases, our Fast Transfer partners shall return the listed name(s) to Afternic. Our Fast Transfer partners may neither seek a refund nor return the sold name(s) to Afternic one-hundred eighty (180) days after the date of purchase.
- Seller acknowledges that it understands and agrees that seller's sole remedy, and Afternic's sole liability, in the event that the sale transaction is cancelled, or a Fraud Notice is received, is a return of the Sold Domain to seller's control. Afternic provides no warranty of any kind to seller. Seller acknowledges and agrees that in the event of a cancelled sale, Afternic's sole obligation, and seller's sole remedy, is limited to the return of the Sold Domain to seller's control unless Afternic is barred from taking such action due to legal or registry requirements.
- THIRD PARTY SITES
- COMPANY'S DISCLAIMER OF WARRANTIES
- LIMITATION OF LIABILITY
- INDEMNIFICATION
- LEGAL COMPLIANCE
- DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
- Disputes. The terms of this Section shall apply to all Disputes between you and Afternic, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced in this Agreement and available here. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Afternic arising under or relating to any Afternic Services or Products, Afternic’s websites, these terms, or any other transaction involving you and Afternic, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND AFTERNIC AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR AFTERNIC FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
- Binding Arbitration. You and Afternic further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these terms; (ii) these terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
- Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
- Dispute Notice. In the event of a Dispute, you or Afternic must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Afternic must be addressed to: GoDaddy, 2155 E. GoDaddy Way, Tempe, AZ 85284, Attn.: Legal Department (the “GoDaddy Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Afternic and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Afternic may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
- WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND GODADDY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR GODADDY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
- Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these terms, the rules set forth in these terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms, including, but not limited to, any claim that all or any part of these terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Maricopa County, Arizona, at your option.
- Initiation of Arbitration Proceeding. If either you or Afternic decide to arbitrate a Dispute, we agree to the following procedure:
- Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
- Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
- Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
- Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Afternic or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Afternic is entitled. The discovery or exchange of non-privileged information relevant to the Afternic may be allowed during the arbitration.
- Arbitration Fees and Payments.
- Disputes involving $75,000.00 or less. Afternic will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject Afternic’s last written settlement offer made before the arbitrator was appointed (“Afternic’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Afternic’s last written offer, Afternic will: (i) pay the greater of the award or $1,000.00; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Afternic agree on them.
- Disputes involving more than $75,000.00. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Disputes involving any amount. In any arbitration you commence, Afternic will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Afternic commences, Afternic will pay all filing, AAA, and arbitrator’s fees and expenses. Afternic will not seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
- Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If not filed within one year, the claim or dispute will be permanently barred.
- 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY AFTERNIC BY E-MAILING LEGALOPTOUT@GODADDY.COM WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name, (c) address, (d) phone number, and (e) account number(s) and state the following: “I wish to opt out of the arbitration provision contained in this Agreement.” By providing your information in the method above, you are opting out of the agreement to arbitrate contained in this Agreement. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Agreement. In the event that you opt-out consistent with the procedure set forth above, all other terms contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
- Amendments to this Section. Notwithstanding any provision in these terms to the contrary, you and Afternic agree that if Afternic makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Afternic’s address) in these terms, Afternic will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
- Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these terms.
- Exclusive Venue for Other Controversies. Afternic and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Maricopa County, Arizona, or the United States District Court for the District of Arizona, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.
- MISCELLANEOUS
- SITE SUBMISSION RULES ("SITE SUBMISSION RULES")
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, obscene, sexually explicit or graphic, or otherwise in violation of this Site's rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- infringes any patent, trade mark, service mark, trade secret, copyright, moral right, right of publicity, privacy or other proprietary right of any party;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
- impersonates any person or entity, including any employee or representative of this Site, its licensors or advertisers.
- EUROPEAN UNION DIGITAL SERVICES ACT ("DSA") SUPPLEMENTAL TERMS OF SERVICE
- This Section 45 sets out provisions, processes and disclosures that supplement the rest of this Agreement, as required under the DSA, which regulates the provision of certain digital intermediary services provided in the EU and notably sets out rules on the role of providers and imposes content moderation requirements and transparency obligations. These provisions only apply to you if you are in the EU and / or if you are using the Site or DSA Services. In the event of any conflict between the terms set out in this Section 45 and the other provisions of this Agreement, the terms of this Section 45 shall prevail.
- Rules of conduct. Users are prohibited from providing, publishing or transmitting content which is incompatible with or violates this Agreement (including without limitation Sections 1, 13, and 44 of this Agreement) or any applicable laws in the EU or in any EU country ("Unauthorized Content").
- Content moderation overview. The Company may voluntarily take action against any Unauthorized Content in accordance with this Agreement (including without limitation Section 12, paragraphs D and W of Part 5, and Sections 41 and 44 of this Agreement). In addition, the Company may receive notices through the Notice and Action Mechanism (described below) and orders from EU authorities reporting the presence of alleged illegal content on (or transmitted through) this Site or any DSA Service (including without limitation any website hosted by the Company). The Company will process these orders and notices, and take action based on the information provided. These actions may entail the restrictions mentioned in paragraph 5 below, or any other restrictions required by the relevant authority.
- Notifying alleged illegal content – Notice and Action Mechanism. You may report to the Company the presence, on this Site or on any DSA Service, of content that you consider to be illegal in the EU or any EU country through the mechanism accessible here: https://supportcenter.secureserver.net/abusereport/dsa (“Notice and Action Mechanism”). Depending on the nature of the DSA Service concerned by the notice, the way the Company processes and addresses such notice may differ.
- Restrictions. The Company may, at any time and in some cases, without prior notice, remove any Unauthorized Content provided on (or through) this Site or any DSA Service, or suspend or terminate access to a whole DSA Service (e.g., disabling a website hosted by the Company). In addition, with respect to “repeat offenders”, namely users frequently providing manifestly Unauthorized Content, the Company may suspend or terminate their access to this Site or to the DSA Services. The Company will generally issue a prior warning before any suspension, other than in exceptional cases or where the Company is otherwise legally required to take immediate action. When deciding on and applying such restrictions, the Company will act in a timely, diligent, non-arbitrary, objective and proportionate manner.
- Unfounded Notices. If any user frequently provides manifestly unfounded notices through the Notice and Action Mechanism, the Company may suspend the processing of its notices. The Company will generally issue a prior warning before any suspension, save for exceptional cases (as determined by the Company in its reasonable discretion) or where the Company is legally required to take immediate action.
- Measures and tools for review. Notices and orders are generally subject to human review. The Company may also use a machine learning model that helps process certain claims and detect phishing on websites hosted by the Company. Actions taken in response to notices and/or orders which relate to the provision of content by users of the DSA Service or visitors of the Site, if any, are generally subject to human review.
- Right to terminate the use of the DSA Services. You have the right to terminate the use of the DSA Services in accordance with Section 17 and paragraph H of Part 5, of this Agreement.
- Content Moderation Decisions.
- This paragraph 9 may apply to you if:
- Your issue relates to the use of the Site or one of the Company's online platforms in the EU (meaning for instance a DSA Service involving the sale and purchase of aftermarket domain names); and
- Your issue concerns: (y) a decision taken by the Company further to a notice you submitted to the Company regarding the presence of information considered to be illegal content on one of the Company's EU online platforms; and/or (z) a decision taken by the Company to remove (or to not remove) content or to suspend, restrict or terminate (or to not suspend, restrict or terminate) access to one of the Company's EU online platforms on the ground that you or any user of the service provided Unauthorized Content, (a “Content Moderation Decision”).
- If you disagree with a Content Moderation Decision, you may lodge a complaint against it with the Company. The complaint must be lodged within six (6) months from the date on which you are informed of the Content Moderation Decision. To lodge your complaint, you will need to respond to the email informing you of the Content Moderation Decision and provide any additional context or information for the Company to reassess the Content Moderation Decision. The Company will review your complaint and respond through its internal complaint-handling system (the “Internal Complaint-Handling System”).
If a user frequently provides manifestly unfounded complaints through the Internal Complaint-Handling System, the Company may suspend the processing of its complaints, after a prior warning. - If you disagree with a Content Moderation Decision and/or the outcome of the Internal Complaint-Handling System, you may also engage with any out-of-court dispute settlement body certified by the relevant EU authority. For your information, decisions taken by these bodies are not binding. Also, the Company may refuse to engage in such a procedure if the issue has already been resolved concerning the same content and the same grounds. The list of these certified bodies (if any) is expected to be published by the EU Commission shortly. We will update the terms of this Agreement once the relevant information becomes available.
- In any case, you may also initiate judicial proceedings before a competent court, according to the applicable law, at any stage.
- For the purposes of paragraphs 6 and 9 of this Section 45, “frequently” means the submission of 2 or more unfounded notices or complaints (as relevant) over a period of 12 months. For the purposes of paragraphs 5, 6 and 9 of this Section 45, when determining whether a specific behavior requires such a suspension or termination and the duration of the suspension or termination, the Company takes into account the relevant facts and circumstances, which may include such things as the volume of manifestly unfounded notices or complaints submitted within the period referred to above, the seriousness and/or the impact of the behavior. A notice may for instance be considered as manifestly unfounded if it is evident that it does not relate to alleged illegal content and instead refers solely to personal and/or subjective considerations. Specifically, as regards the provision of illegal content, these criteria also include the volume of illegal content provided, the extent of its impact and/or the gravity of the behavior (e.g., as regards the nature of the content concerned and its consequences) and the frequency of the behavior.
- Search Engine: Recommender Systems Disclosure. Our Site and certain of our DSA Services include a search engine that enables you to search for domain name registrations based on your query, account search history, and location. The search engine generates a list of results based on generic matching between the keywords or character sequences searched and the domain names available for purchase. If the exact domain name you searched for is unavailable, the search engine will display results for domain names that match your keywords and characters, potentially including alternative top-level domain names, which may take into account your location. For example, if you are located in Germany, the search engine may prioritize “.de” top-level domain names in order to present you more tailored results. Additionally, the search may feature partnerships labeled “Promoted” in the search results.
- DSA Point of Contact. If you have any questions or queries about this Section 45 or any other DSA-related matters, you can contact us by email at the following address: dsainquiries@secureserver.net
- LTO Domain: a domain name that you list for sale through the Afternic Site with an agreement to pay overtime.
- LTO Term: the period agreed between Afternic and Buyer during which Buyer will have access to the DNS and will make monthly payments to Afternic.
- Commission Discount: discount provided to Seller by Afternic for LTO Domains that sell with Lease to Own.
- Service Fee: fee owed by Buyer to Afternic for the Services provided by Afternic during the LTO Term, including, but not limited to, renewing the LTO Domain, providing administrative services related to the management of the LTO Domain, forwarding correspondence, etc.
Upon successful transfer of the LTO Domain to Afternic, Afternic will pay Seller the first monthly payment less any applicable commission. For LTO Domains, Seller is subject to a Commission Discount set forth on the Afternic Pricing and Fees page.
- Transaction Assurance Process. You acknowledge and agree that your transaction will be handled by Afternic’s “Transaction Assurance” process. Afternic will remit payment of the full agreed upon monthly payment to the Seller each month, except in the event of a dispute or where the payment is suspected to be fraudulent, as determined by Afternic in its sole and absolute discretion.
- A Seller may elect to withdraw from negotiations at any time without any penalty up until the point in time when Seller has provided a verbal or written confirmation of an agreed upon purchase price, at which point the negotiation process is deemed to be complete.
- As a Seller, you may use the LTO Services to list domain names to which you have registration rights for sale and are able to transfer in accordance with your obligations under this Agreement. By using the LTO Services for such purposes, you represent and warrant that:
- You have all rights, titles and interests in the domain name necessary to complete the transaction;
- You have the ability to transfer the domain name free and clear of any obligations, liabilities, liens or encumbrances;
- The domain name does not infringe on the intellectual property rights of anyone else;
- You have the right to transfer the domain name in accordance with your obligations under this Agreement; and
You agree to be bound by our Uniform Domain Name Dispute Resolution Policy.
- YOU ACKNOWLEDGE AND AGREE THAT BY ENTERING INTO THE LTO SERVICES, YOU AUTHORIZE AFTERNIC TO CONTROL THE LTO DOMAIN DURING THE LTO PERIOD. AND THAT DURING THE LTO PERIOD AFTERNIC IS AUTHORIZED TO TRANSFER THE LTO DOMAIN TO A THIRD PARTY AS MAY BE REQUIRED BY LAW OR THE UNIFORM DOMAIN-NAME DISPUTE-RESOLUTION POLICY.
- You agree to thoroughly, accurately and honestly complete all forms and requests for information provided by Afternic throughout the process. You agree Afternic will not be responsible for any false or misleading information you provide, whether intentionally or unintentionally. You agree to notify Afternic within five (5) business days when any of the information you provided changes. It is your responsibility to keep this information in a current and accurate status. Failure by you, for whatever reason, to provide Afternic with accurate and reliable information on an initial and continual basis, shall be considered a material breach of this Agreement. Failure by you, for whatever reason, to respond within five (5) business days to any inquiries made by Afternic to determine the validity of information provided by you, shall also be considered a material breach of this Agreement.
- FOR THE PURPOSE OF FACILITATING THE CHANGE OF REGISTRANT INFORMATION DURING AND AFTER THE SALE OF ANY DOMAIN NAME, WHETHER AS BUYER OR SELLER, AND IN ACCORDANCE WITH ICANN'S CHANGE OF REGISTRANT POLICY, YOU AGREE TO APPOINT AFTERNIC AS YOUR DESIGNATED AGENT FOR THE SOLE PURPOSE OF EXPLICITLY CONSENTING TO MATERIAL CHANGES OF REGISTRATION CONTACT INFORMATION ON YOUR BEHALF. AS DEFINED IN ICANN’S CHANGE OF REGISTRANT POLICY, A “DESIGNATED AGENT” MEANS AN INDIVIDUAL OR ENTITY THAT THE PRIOR REGISTRANT OR NEW REGISTRANT EXPLICITLY AUTHORIZES TO APPROVE A CHANGE OF REGISTRANT REQUEST ON ITS BEHALF.
- Both Buyer and Seller are obligated to complete the transaction after they mutually agree to a price for the domain(s). Both Buyer and Seller specifically authorize and direct Afternic to act as their Designated Agent to facilitate the transfer of the domain(s).
- You agree not to sell any domain name to any Buyer found through the Services without using the Services to complete the transaction. Should Afternic find that you are circumventing the Services, Afternic reserves the right to terminate your account and cancel all of your listings.
- You are obligated to complete the transaction if Buyer commits to purchase the domain name through a fixed, agreed upon price. Should you fail to complete the transaction for any reason (including, but not limited to, failing to move the domain name to Afternic’s account, Afternic reserves the right to (i) charge you a fee or (ii) terminate your membership with Afternic Auctions (as determined by Afternic in it sole and absolute discretion).
- If you choose payment by paper check, you acknowledge and agree that a Twenty-Five Dollar ($25 USD) check processing fee will be assessed to you each time a U.S. based check is printed. You hereby authorize Afternic to initiate and post (i) credit (positive) entries for payments to the Deposit Account and (ii) debit (negative) entries to the Deposit Account to reverse erroneous payments and/or make adjustments to incorrect payments. You acknowledge and agree that the amount initiated and posted to the Deposit Account will represent payment for domain names sold using the Services. If the domain name sold is registered with Afternic and eligible for transfer from Seller to Buyer via Afternic’s change of account (“COA”) process, Afternic will initiate the payment of proceeds approximately five (5) days after receipt of Buyer’s funds. If the domain name sold is not registered with Afternic, Afternic will initiate the payment of proceeds approximately twenty (20) days after receipt of Buyer’s funds. In either event, you acknowledge and agree that there may be a delay of several days between the time that Afternic initiates the payment of proceeds and the time that the proceeds are actually posted to the Deposit Account, and Afternic expressly disclaims any liability or responsibility regarding the same.The authority granted to Afternic by the Deposit Account owner herein will remain in full force and effect until Afternic has received written notification from the Deposit Account owner that such authority has been revoked, but in any event, such writing shall be provided in such a manner as to afford Afternic a reasonable opportunity to act on such revocation, or until Afternic has sent notice to terminate this Agreement.
- SELLER AGREES TO PROTECT, DEFEND, INDEMNITY AND HOLD HARMLESS AFTERNIC AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND THIRD PARTY SERVICE PROVIDERS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS, EXPENSES, LOSSES, LIABILITIES AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) IMPOSED UPON OR INCURRED BY AFTERNIC DIRECTLY OR INDIRECTLY ARISING FROM (I) YOUR LTO DOMAIN; (II) YOUR VIOLATION(S) OF ANY PROVISION OF THIS AGREEMENT; AND/OR (III) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT. THIS INDEMNIFICATION OBLIGATION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE LTO SERVICES.
- Afternic may terminate your use of the LTO Services for any violation or breach of any of the terms of this Agreement by you. Any such termination will not entitle you to any refund of payments already made to Afternic for any LTO Services or Service Fee, and you will lose any and all access to the applicable LTO Domain.
- If the LTO Services are terminated, Afternic reserves the right to sell the LTO Domain to any party, including potential competitors of Buyer. Afternic shall have no ongoing obligation to Buyer related to the LTO Domain.
- The parties acknowledge and agree that the Afternic is not a payment provider and that Afternic does not make any warranties in that respect. In order to effectuate the transfer of payments, Afternic uses the services of a third party payment provider. The terms and conditions of the third party payment provider shall apply to such payments.
- AFTERNIC IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY IN THE EVENT THAT THE DOMAIN NAME TRANSACTION FAILS TO COMPLETE DUE TO BREACH BY EITHER THE BUYER OR THE SELLER OF ITS RESPECTIVE OBLIGATIONS. BUYER ACKNOWLEDGES AND AGREES THAT BUYER DOES NOT OBTAIN ANY RIGHTS IN THE REGISTRATION OF A DOMAIN NAME UNTIL THE TRANSACTION IS COMPLETE.
- Without limiting any other remedies available to Afternic, if
- You breach this Agreement, or any document incorporated by reference;
- Afternic determines your actions may pose a risk to Afternic or its members;
- Afternic determines your use of the Services infringes on the intellectual property or legal rights of others.
- Afternic may immediately:
- Warn its members of your actions;
- Place a hold on any pending transactions associated with your account(s);
- Limit funding sources and payments;
- Limit your access to your account(s) or to any functionality of your account(s); or
- Indefinitely suspend or close your account(s) and refuse to provide our Services to you.
- In addition, Afternic reserves the right to hold funds beyond normal distribution periods for transactions it deems suspicious or for account(s) conducting high transaction volumes to ensure integrity of the funds. If Afternic closes your account(s), Afternic will provide notice and pay you all of the unrestricted funds in your account(s) due to you.
- Our domain platform, which supports the search and display of available domains through different websites including this website. This number, calculated as an average over the six-month period ending on January 31, 2024, is 3,169,202. The figure therefore comprises an aggregate of active recipients across our relevant websites, including under affiliated brands, that operate on that underlying domain platform, which could qualify as an online platform under the DSA. Additionally, the currently available data may include active recipients from European countries other than just the EU; and
- Our GoDaddy Community service, available at https://community.godaddy.com. This number, calculated as an average in the EU over the six-month period ending on January 31, 2024, is 9,142.
ACCEPTANCE OF TERMS THROUGH USE
By using this site or by clicking "I agree" to this Agreement, you ("Member" or "You") signify your agreement to these terms and conditions. If you do not agree to this Agreement as well as any additional rules and policies posted on Afternic.com (the "Site"), please do not use this Site and do not click "I agree".
This Agreement sets out the terms under which the Company will provide services to You. This Agreement also contains additional provisions applicable to the use, in the European Union ("EU"), of the Site and/or of the provision, in the EU or to EU users of intermediary services which fall within the scope of the EU Digital Services Act ("DSA Services"). These notably include certain registrar services provided by the Company in the EU. This Agreement governs the contractual relationship between (i) You and the Company, and/or, as regards European Union Digital Services Act ("DSA") Supplemental Terms of Service and (ii) any user of the Site and/or the DSA Services and the Company.
Please check this Agreement periodically for changes as Afternic, a division of GoDaddy.com, LLC, a Delaware limited liability company (collectively, the "Company" or "Afternic"), reserves the right to revise this Agreement and your continued use of this Site following the posting of any changes to the Agreement as well as any additional rules and policies posted on Afternic.com constitutes your acceptance of such changes. The Company reserves the right to terminate a Member's use of this Site at any time, after, before or during a transaction, without notice, and may do so at any time, for any reason. This Agreement applies to licensors and advertisers as well. For information on our buying, selling, and affiliate policies and agreements, see the information provided through the Site
YOU MUST BE AT LEAST 18 TO AGREE TO THIS AGREEMENT AND USE THIS SITE
This Agreement must be completed, understood and agreed to by a person at least 18 years old. If a parent or guardian wishes to permit a person under 18, and under his or her supervision, to use this Site, he or she should email the Company with his or her explicit permission and acceptance of full legal responsibility for the minor to do so. If you are not yet 18, do not have the capacity to enter into contracts, or are accessing this Site from any country where material on this Site is prohibited or illegal, please leave now as you do not have permission to access this Site.
Part 1 - LICENSE TO USE THIS SITE
Upon your agreement to this Agreement, the Company hereby grants you a non-exclusive, non-transferable limited license to use this Site in strict accordance with the terms and conditions in this Agreement and as permitted via instructions on this Site. Your listing of, bidding of and/or agreement to purchase any domain name on this Site means that you agree to pay such fees to finalize the sale. You agree not to make any false or fraudulent statements in your use of or to gain access to this Site. You warrant that all statements you make, bids and sales you make or attempt to make, are done in good faith and that you have no knowledge of any information which would affect the validity of the sale or bid. You agree to pay for any and all purchases and bids made using your name and credit card through this Site and/or you agree to sell any and all domain names as per your listings and the instructions on this Site. If you refuse or fail to do so, you are fully liable for such amounts and hereby authorize Company to pursue you for collection of such amount including your full liability for all costs, interest, and attorney's fees for such collection.
As a buyer of a domain name, you agree to pay any fees charged by the Company in connection with your purchase and as a seller of a domain name you agree to pay any fees charged by the Company in connection with your sale of a domain.
As a buyer of a domain name you agree that all fees and charges payable to Company under this Agreement are exclusive of applicable foreign, US, state, local sales or use, value added taxes or other similar transaction taxes ("Taxes") and duties. Furthermore, as a buyer of a domain name you agree that any such Taxes are you, the buyer's responsibility and that you will remit such Taxes to the appropriate taxing jurisdiction.
For any sale of a domain name registration occurs between you and another member after being introduced through this Site less than six months prior to the sale, you agree to pay a sales fee to Company, as posted on AFTERNIC.COM. Such introductions include any communication facilitated by the Site's listings, offers and messages to members. The sales fee will be paid by the seller, and guaranteed by the buyer. The fee must be received by Company from seller within 30 days of the sale. If Company does not receive such payment within 30 days of the sale, the buyer member agrees to pay Company the brokerage fee within 30 days of receiving notice from Company that the seller did not pay the fee within the first 30 days.
YOU ACKNOWLEDGE AND AGREE THAT ALL DOMAIN NAMES, DOMAIN NAME LISTINGS, BIDS, OFFERS AND COUNTER-OFFERS, OF ANY AND ALL KINDS, ON THIS SITE ARE OWNED, POSTED AND TRANSFERRED BY MEMBERS; ARE NOT PROPERTY OF COMPANY AND COMPANY DOES NOT MONITOR, REVIEW, ENDORSE, SPONSOR, WARRANTY OR GUARANTEE SUCH LISTINGS IN ANY WAY WHATSOEVER FOR GOOD TITLE, TRADEMARK, OR ANY LEGAL VALIDITY OR CAPACITY. DOMAIN NAMES ARE SUBJECT TO TRADEMARK AND OTHER LAWS AND PRIOR TO YOUR PURCHASE OF ANY NAME, YOU SHOULD HIRE AN ATTORNEY TO PROPERLY PERFORM LEGAL DUE DILIGENCE ON THE NAME TO REVIEW THE LEGALITY OF YOUR INTENDED USE OF THE NAME.
ANY AND ALL USE OF THIS SITE, SALES AND BIDS ON DOMAIN NAMES, AND OTHER SERVICES TO MEMBERS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE COMPANY, ADVERTISERS AND/OR ITS LICENSORS, HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO THIS SITE, THE INFORMATION CONTAINED ON OR RECEIVED THROUGH USE OF THIS SITE, LISTINGS OF DOMAIN NAMES FOR SALE ON THIS SITE, THE BIDS MADE THROUGH THIS SITE, AND ALL SERVICES OR PRODUCTS RECEIVED THROUGH THIS SITE, INCLUDING ALL EXPRESS, STATUTORY, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
The Company cannot and does not control whether or not third-party buyer(s) will complete a transaction. Additional risks arise out of dealings with foreign nationals, underage persons or people acting under false pretense or making deceitful representations, all of which are borne solely by the buyer or seller, as appropriate. The Company does not confirm that users who access its website are who they claim to be. The Company encourages You to exercise reasonable, safe business practices as You would in any other commercial activity. The Company will be permitted to take ownership or possession of the seller's domain name prior to it being transferred to the buyer.
Part 2 - LICENSE RESTRICTIONS
Except as may be explicitly permitted through this Site, you agree not to save, download, cut and paste, sell, license, rent, lease, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from materials, code or content on or from this Site. Systematic retrieval of data or other content from this Site to create or compile, directly or indirectly, a collection, compilation, database or directory of any kind without written permission from the Company is prohibited. In addition, use of the listings, content or materials for any purpose not expressly permitted in this Agreement is prohibited.
You agree that if you are issued a Member name and Password by the Company, you shall use your best efforts to prevent access to this Site through your Member name and Password by anyone other than yourself, including but not limited to, keeping such information strictly confidential, notifying the Company immediately if you discover loss or access to such information by another party not under your control and supervision, and by using a Member name and Password not easily guessed by a third party. You are responsible for all activity performed by anyone who uses your password to access your account.
You agree that you shall not try to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate or otherwise alter any executable code, contents or materials on or received via this Site. You understand that such actions are likely to subject you to serious civil and criminal legal penalties and that the Company shall pursue such penalties to the full extent of the law to protect its rights and the rights of its other licensors.
This Site and the services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control ("OFAC"), State Department, and other United States authorities (collectively, "U.S. Export Laws"). Users shall not use the services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the services found at this Site in violation of any U.S. Export Laws. None of the services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the services found at this Site, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including "anti-boycott", "deemed export" and "deemed re-export" regulations). If you access this Site or the services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the services found at this Site.
Afternic makes no representation or warranty that the content available on this Site or the services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the services found at this Site are responsible for compliance with all local laws, rules and regulations.
If you are a branch or agency of the U.S. Government, the following provision applies. This Site, code, contents, services and accompanying documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights reserved under the copyright laws of the United States.
Other than content and property posted by Members, all other content, database information, data and services available on, and collected as a whole through, this Site are property of the Company and its advertisers and licensors and are protected by copyrights, moral rights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws, in the U.S. and internationally. All rights not expressly granted herein are fully reserved by the Company, its advertisers and licensors. The Company's, licensors' or other third party materials, services or products referenced on this Site are common law or registered trademarks or service marks of such parties.
Except with regard to personal information, all information which you post on this Site or communicate to the Company through this Site (collectively "Submissions") shall forever be the property of the Company. You agree to the Site Submission Rules listed below and part of this Agreement. The Company shall not treat any submission as confidential and shall not incur any liability as a result of any similarities that may appear in future Company services or products. Without limitation, the Company shall have exclusive ownership of all present and future existing rights to any Submission of every kind and nature everywhere. You acknowledge that you are fully responsible for the message, including its legality, reliability, appropriateness, originality and copyright. You hereby represent and warrant that your Submission does not infringe or violate the rights of any third party.
As a condition of using our Site, you warrant and represent each of the following to other Members and to Company about your listings: (a) your domain name registration is in good standing; (b) you are not in breach of any obligation to the registrar or registry with regard to the domain name (both referred to as the "registrar"); (c) all registration fees have been paid in full; (d) the registration has not been pledged to any third party, has not been mortgaged, is not the subject of any security interest granted to any third party, has not been licensed and has not otherwise been the subject of any express permissions to use or to link; (e) you are an authorized contact on the registration and have sole and exclusive authority to authorize transfer of the registration free of any claim of any kind and to execute such documents as will be recognized by the registrar to effect a transfer of the domain name or that you have express permission by such contact to act as an agent for such contact; (f) the registration and domain are free from any notice or claim asserted or threatened by any third party claiming infringement of any trade name, trademark, service mark, copyright, or license of any person or organization; (g) the registration is not the subject of any suspension or dispute procedure by any registrar or of any arbitration or other dispute resolution procedure; (h) you hold no trademark, trade name, or other proprietary commercial interest in the domain name, will assign all such rights to any Member purchasing the name upon request without charge and will hereafter make no objection to Member's registration or use of the domain name; (i) to the best of the your knowledge, neither the domain name nor the registration infringe any third party's copyright, patent, trademark, or other proprietary rights; (j) the registration does not violate any law, statute, ordinance or regulation; (k) the domain name is not defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (l) the domain name does not include: (1) registered trademark(s) or company name(s) (including misspellings or other marks or names confusingly similar thereto); (2) words alluding to the ingestion of illegal substances; (3) vulgar or obscene language; (4) language associated with any illegal enterprise (including online gaming) or that advocates or glorifies any illegal act; or (5) language that is sexually explicit or of a pornographic nature; (m) the domain name is not identical to other items you have up for auction but are priced lower than your auction item's reserve or minimum bid amount; (n) you will not manipulate the auction process by bidding on your own listings, posting duplicate listings or making any bid or offer which is not binding and in good faith; (o) you will not take any actions that may undermine the integrity of the feedback system; (p) you will not take any actions that may undermine the integrity of this Site's domain name traffic statistics; (q) you will not submit any false statements to or through this Site; and (r) you agree to cooperate with Company in the transfer of any domain name sold through the Company’s platforms. You agree to advise Company, and any other member with whom you are engaged in a transaction, immediately in the event that you become aware of any claim of infringement or any trademark, trade name, service mark, copyright or other right described in this paragraph.
The Company may take any measure that it in its own discretion it deems necessary to maintain the integrity and security of its membership, listings, and transactions. This includes but is not limited to, editing and removing listings, canceling transactions at any time, remedying agreement breaches in one transaction with proceeds or assets from another transaction, and assisting in completing transfers after a Completed Sale has occurred.
You agree that sales and purchases you make through the Site are binding agreements between you and the other party immediately when: (a) an offer is submitted that is at least the listing's buy now price; (b) an offer expires that is at least the listing's reserve price; (c) the buy now price is reduced to the amount of a current offer; OR (d) both parties have completed any step of a transaction. Your membership information and other information related to a sale on Afternic may be disclosed to another member who is a party to a binding agreement if requested to enforce the agreement.
When you purchase a domain on the Site, you shall: (a) send full payment to be received by the seller within ten (10) business days; (b) only use payment instruments and mechanisms as required by Afternic; (c) perform any necessary steps to receive the registrant transfer from the seller promptly; AND (d) notify the seller promptly after registrant transfer is completed.
When you sell a domain on the Site, you will transfer the domain to Afternic within ten (10) business days of receiving notification by Company that the buyer's payment is approved.
Either party to a transaction may cancel the transaction if the other party of a transaction delays the transaction more than ten (10) business days provided that the canceling party gives five (5) business days notice and the cancellation does not become effective if the cause of the delay is resolved within five (5) business days. This cancellation notice cannot be given unless there is a ten (10) day delay by the other party.
Seller agrees to accept the return of a domain name sold through a third-party reseller platform if the transaction is cancelled for fraud or other reasons and refund all amounts paid by Afternic for the domain sale.
Afternic reserves the right to hold funds beyond normal distribution periods for transactions it deems suspicious or for account(s) conducting high transaction volumes to ensure integrity of the funds. If Afternic closes your account(s), Afternic will provide notice and pay you all of the unrestricted funds in your account(s) due to you.
Notwithstanding anything to the contrary on this Site, a Listed Domain with a Completed Sale through any GoDaddy-owned check-out process will be guaranteed for payment by Afternic if the Buyer does not perform and if the Buyer is not an associated party of the Seller. In the event of a breach by the Buyer of its responsibilities related to payment under a Buy Now transaction, the Seller agrees to immediately transfer all of Seller's right to the respective Listed Domain to Afternic and Afternic agrees to pay Seller the final sales price less any agreed upon commission.
For the purposes of this limited warranty, a "Completed Sale" means an accepted Buy Now transaction for a Listed Domain through a GoDaddy-owned Site, combined with receipt of payment by Afternic and transfer of the Listed Domain to Afternic's control.
You acknowledge and agree that your transaction will be handled by Afternic’s “Transaction Assurance” process. Afternic will remit payment of the full agreed upon purchase price to the Seller within approximately 20 days after receiving funds from the Buyer, except in the event of a dispute or where the payment is suspected to be fraudulent, as determined by Afternic in its sole and absolute discretion.
By using Afternic’s “Transaction Assurance” process, you authorize Afternic to perform tasks on your behalf in order to complete the transaction. In these transactions, Afternic acts as a transaction facilitator to help you buy and sell domain names. Afternic will not use your funds for its operating expenses or any other corporate purposes, and will not voluntarily make funds available to its creditors in the event of bankruptcy or for any other purpose. You acknowledge Afternic is not a bank and the service is a payment processing service rather than a banking service. You further acknowledge Afternic is not acting as a trustee, fiduciary or escrow with respect to your funds.
Except under the limited circumstances expressly set forth in the Limited Warranty set forth above, Afternic is not responsible and disclaims all liability in the event that the domain name transaction fails to complete due to breach by either the Buyer or the Seller of its respective obligations. Buyer acknowledges and agrees that Buyer does not obtain any rights in the registration of a domain name until the transaction is complete.
FOR THE PURPOSE OF FACILITATING THE CHANGE OF REGISTRANT INFORMATION DURING AND AFTER THE SALE OF ANY DOMAIN NAME, WHETHER AS BUYER OR SELLER, AND IN ACCORDANCE WITH ICANN'S CHANGE OF REGISTRANT POLICY, YOU AGREE TO APPOINT AFTERNIC AS YOUR DESIGNATED AGENT FOR THE SOLE PURPOSE OF EXPLICITLY CONSENTING TO MATERIAL CHANGES OF REGISTRATION CONTACT INFORMATION ON YOUR BEHALF. AS DEFINED IN ICANN’S CHANGE OF REGISTRANT POLICY, A “DESIGNATED AGENT” MEANS AN INDIVIDUAL OR ENTITY THAT THE PRIOR REGISTRANT OR NEW REGISTRANT EXPLICITLY AUTHORIZES TO APPROVE A CHANGE OF REGISTRANT REQUEST ON ITS BEHALF.
Part 3 - TERMS FOR SELLING YOUR DOMAIN NAME(S) ON AFTERNIC
In addition to any other fees which may be payable by seller, seller is responsible for applicable taxes, costs, hardware, software, services and all other costs and expenses you incur for the participation in the activity conducted over our website.
Company is not an escrow agent. As a result, Company does not guarantee the accuracy, quality or legality of advertised third-party domain names, the truth or the accuracy of the listings, the right and the ability of the listed seller to transfer the domain name or the ability of a buyer to consummate a transaction. Company cannot and does not control whether or not third-party seller(s) or buyer(s) will complete a transaction. Additional risks arise out of dealings with foreign nationals, underage persons or people acting under false pretense or making deceitful representations, all of which are borne solely by the buyer or seller, as appropriate. Company does not confirm that users who access its website are who they claim to be. Company encourages You to exercise reasonable, safe business practices as You would in any other commercial activity.
If you receive an offer to purchase the rights to a domain name at or above your "Reserve" or "Floor" price, as established by you when you list a domain name for sale with the Company, then you are obligated to complete the transaction at that "Reserve" or "Floor" price. In the event that Seller defaults on this obligation to complete the transaction, Afternic reserves the right to transfer the domain name.
You understand that certain reseller distribution partners may, upon approval by the Company and at Company's sole discretion, add a markup to the sale price of your domain name and that the reseller distribution partner may keep this markup in its entirety, and that you will receive no payment for the portion of the sales price that is marked up.
You may not place any bids or offers to purchase the domain name that you have listed for sale, either under your own name, an alias, or any entity in which you maintain a controlling interest.
Without limitation of any other remedy, Company reserves the right to suspend, terminate and remove your listing at any time and without prior notice if it reasonably believes that you have engaged in any fraudulent activity in connection with your posting or if Company is of the opinion that you have breached any of your representations under this Agreement, or violated any of the terms of this Agreement or of any of Company policy.
Part 4 - TERMS OF SERVICE FOR PARKING DOMAIN NAMES ON AFTERNIC
By parking one or more domain names with Afternic (each a "Parked Domain Name"), You signify Your electronic acceptance of the Terms Of Service For Parking Domain Names On Afternic (the "Parking Terms of Service") as well as the Afternic Membership Agreement. Please review the following Parking Terms of Service carefully.
To the extent that the Parking Terms of Service conflict with the Afternic Membership Agreement, the conflicting terms here shall supersede the Afternic Membership Agreement but only with respect to Parked Domain Names and only to the extent of such conflict.
BY PARKING DOMAIN NAMES WITH AFTERNIC, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE PARKING TERMS OF SERVICE. BY CONTINUING TO PARK DOMAIN NAMES WITH AFTERNIC FOLLOWING A CHANGE TO THE PARKING TERMS OF SERVICE, YOU ARE ACCEPTING AND AGREEING TO THE CHANGE.
You will not enroll a domain name for parking with Afternic if You do not have the right to do so or if such enrollment would violate any laws or intellectual property rights of another, including without limitation trademark or service mark rights (each a "Prohibited Domain Name"). Afternic retains the right to unilaterally and without notice cancel the enrollment of any such Prohibited Domain Name and, in Afternic's sole discretion, seek legal recourse against You and any other parties for such enrollment. You will indemnify Afternic against any claims or suits arising from a breach of this section. Additional examples of Prohibited Domain Names that may prompt Afternic to cancel enrollment include:
You hereby grant Afternic a revocable license to display, at Afternic's option, content on Your Parked Domain Name(s) during its enrollment under the Parking Terms of Service. Under this license, Afternic may, in its sole discretion for any reason or for no reason at all, temporarily or permanently stop or modify the content displayed on any Parked Domain Name(s), and You agree that Afternic and its directors, officers, employees, contractors, representatives, agents and affiliates are not liable for loss or damages resulting from such stoppage or modification.
Afternic will provide You with access to a web-based interface that You may use to manage Your Parked Domain Name(s), view reports of traffic to Your Parked Domain Name(s), view reports of Your payments from Afternic, and enroll additional domain names for parking with Afternic.
Afternic will provide You with access to a web-based interface that You may use to manage Your Parked Domain Name(s), view reports of traffic to Your Parked Domain Name(s), view reports of Your payments from Afternic, and enroll additional domain names for parking with Afternic.
You will be paid monthly your percentage of Afternic's recognized and received gross revenue generated from Your Parked Domain Name(s) minus any expenses from Your Parked Domain Name(s) fifteen (15) days after Afternic has received payment from its advertisers for the preceding month. Afternic typically allows its advertisers thirty (30) calendar days to pay an invoice, and in some cases advertisers may take more time to pay moneys due to Afternic. If the amount due to You under the Parking Terms of Service is less than one hundred United States dollars (USD 100.00), Afternic will defer payment to You until either: (a) You or Afternic terminate enrollment of Your Parked Domain Name(s); and/or (b) the amount due to You under the Parking Terms of Service is at least USD 100.00.
It is Your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that You receive pursuant to the Parking Terms of Service, and You agree to indemnify Afternic and any third-party beneficiary to the Parking Terms of Service for any claim or assessment of taxes and any costs or damages relating thereto. Afternic is entitled to offset any refunds You are obligated to provide under the Parking Terms of Service against any payments that would otherwise be due to You. Fraudulent, questionable, or low-quality traffic will not be counted when determining Your payments due under the Parking Terms of Service. This determination is and will be made by Afternic in its sole discretion.
You will not authorize or engage in, or engage or enable a third party, on Your behalf, to do any of the following: (1) queries or clicks on results on any Parked Domain Name(s) generated by misleading or incentivized means, including, but not limited to: queries or clicks required in order to obtain some benefit or to perform another function, such as leaving a webpage or closing a window; (2) You, Your employees, contractors or agents clicking on results on any Parked Domain Name(s) except in the course of normal individual use; (3) results on any Parked Domain Name(s); (4) use of any Parked Domain Name(s) for the delivery of unsolicited commercial e-mail messages or any other illegal or dubious purpose or activity; or (5) any kind of traffic manipulation, including but not limited to inflation, deflation, or other adjustment of the traffic or bidded clicks received by any Parked Domain Name(s).
Any search, impression, click or conversion generated in violation of this section shall not be counted for purposes of calculating any compensation owed to You, and may result in the termination of your Afternic Membership Agreement, the forfeiture of payments due to You, and/or the cancellation of the enrollment of particular Parked Domain Name(s).
You have no right to transfer, sell, lease, syndicate, sublicense or assign of any of Your rights under the Parking Terms of Service, including Your right to use the links or results provided by Afternic on Your Parked Domain Name(s) and any attempt to do so shall be null and void. Except as otherwise expressly provided herein, the provisions of the Parking Terms of Service shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. Afternic may assign its rights and duties under the Parking Terms of Service to any party at any time without notice to You. You may not assign Your rights and duties under the Parking Terms of Service to any party at any time without Afternic's written prior consent.
You agree that the appearance of links and results provided to Your Parked Domain Name(s) under the Parking Terms of Service will be decided by Afternic in its sole discretion, which shall be subject to change and modification by Afternic at any time.
You acknowledge that Afternic and its advertisers may employ various measures, including technological measures, on a random, scheduled, or continuous basis to identify fraudulent traffic and verify any and all traffic and bidded click figures for Parked Domain Name(s), and that Afternic and its advertisers will in their sole discretion determine what portion of Your traffic is genuine and utilize this determination to compute Your payments due under the Parking Terms of Service.
Afternic will pay You the balance due to You as of the date of Your or Afternic's termination of the Parking Terms of Service within thirty (30) days of termination of the Parking Terms of Service.
Each Party represents and warrants that: (1) they each have all requisite power and authority to legally execute, deliver and perform their obligations under the Parking Terms of Service, including ownership and/or control of the Parked Domain Name(s) referenced herein; (2) the Parking Terms of Service has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each Party by the other Party in accordance with the Parking Terms of Service; and (3) the execution, delivery, and performance of the Parking Terms of Service by You and the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation; any order, judgment, or decree; any provision of corporate by-laws or other documents; or any agreement or other instrument.
You represent and warrant that each of Your Parked Domain Name(s) is duly registered; and either that You are the exclusive and official registrant for each Parked Domain or that You are expressly and exclusively authorized by the official registrant of each Parked Domain through a valid and enforceable written agreement to authorize Afternic to provide the services contemplated under the Parking Terms of Service as of the date and during the term such domain name remains a Parked Domain Name. You further represent and warrant that You will use the information and services provided by Afternic in a manner that complies with any and all applicable laws.
You acknowledge that Afternic's advertisers and publishing affiliates are third party beneficiaries of the Parking Terms of Service, and are entitled to enforce any or all of its provisions against You for any reason or no reason at all with or without notice, including terminating the display of links and results on any or all of Your Parked Domain Name(s). In that event, Afternic may attempt to provide You with comparable services, but Afternic reserves the right to terminate Your participation in the Parking Terms of Service without penalty to Afternic. This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to the Parking Terms of Service) with any remedy, claim, or cause of action or privilege against Afternic.
You shall not and shall not allow any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the services provided under the Parking Terms of Service or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of Afternic and its advertisers.
You shall keep confidential all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementations, documentation, functional and interface specifications, customer information, pricing information, marketing information and other information related to the subject matter of the Parking Terms of Service, whether written, transmitted, or oral, including but not limited to URLs, parameters, data reported, gross revenue figures, net revenue figures, amounts paid to You by Afternic, the terms of the Parking Terms of Service, and the look, feel and functionality of the service. You may not make any statements in any medium concerning the content displayed on Your Parked Domain Name(s), including statements concerning its source or origin.
You acknowledge and agree that Afternic shall have the right to make public and share with third parties certain information in connection with the offer, sale or purchase of domain names on the website, including but not limited to (a) the name of the domain name offered, sold or purchased, (b) the offer, sale or purchase price of the domain name offered, sold or purchased, and (c) information relating to the timing of the offer, sale or purchase. Furthermore, You shall not create, publish, distribute, or permit any communication that makes reference to Afternic or any third-party beneficiary to the Parking Terms of Service in connection with this Agreement, or uses any of Afternic's trademarks or service marks without receiving prior written consent from a duly-authorized representative of Afternic. You give Afternic the right to disclose Your identity in Afternic's marketing and promotion materials, both electronic and printed.
IN NO EVENT WILL AFTERNIC OR ANY THIRD PARTY BENEFICIARY TO THE PARKING TERMS OF SERVICE BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE PARKING TERMS OF SERVICE, EVEN IF AFTERNIC OR SAID THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AFTERNIC FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THE PARKING TERMS OF SERVICE; AND INFRINGEMENT. ANY LIABILITY OF AFTERNIC TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THE PARKING TERMS OF SERVICE IS LIMITED TO THE GROSS REVENUE RECEIVED AND RECOGNIZED BY AFTERNIC WITH RESPECT TO YOUR PARKED DOMAIN NAME(S) IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST AFTERNIC. YOU AGREE THAT YOU AND AFTERNIC HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THE PARKING TERMS OF SERVICE WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE PARKING TERMS OF SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THE PARKING TERMS OF SERVICE IN ACCORDANCE WITH ITS PROVISIONS, UNLESS SPECIFIED OTHERWISE.
ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THE PARKING TERMS OF SERVICE ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. AFTERNIC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. AFTERNIC ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THE PARKING TERMS OF SERVICE. WITHOUT LIMITING THE FOREGOING, AFTERNIC DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH YOUR PARKED DOMAIN NAME(S) WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH YOUR PARKED DOMAIN NAME(S) WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY AFTERNIC WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY AFTERNIC WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY AFTERNIC UNDER THE PARKING TERMS OF SERVICE WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM AFTERNIC. YOU ACKNOWLEDGE THAT AFTERNIC CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THE PARKING TERMS OF SERVICE INFRINGES THE LEGAL RIGHTS OF OTHERS.
You at Your own expense will indemnify, defend and hold harmless Afternic and any third-party beneficiaries to the Parking Terms of Service and their employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against Afternic or any third-party beneficiary to the Parking Terms of Service by You or another based on or arising from any claim or alleged claim arising out of the operation of Your Parked Domain Name(s); any claim or alleged claim arising from the Parking Terms of Service; a third party claim that Your Parked Domain(s) infringe any copyright, trade secret or trademark of a third party; or Your use of the services provided under the Parking Terms of Service in any manner inconsistent with or in breach of the Parking Terms of Service. You will not enter into a settlement or compromise of any such claim without Afternic's prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by Afternic in connection with or arising from any claim, suit, action or proceeding.
No Party shall be deemed to have waived any claim arising out of the Parking Terms of Service, or any power, right, privilege or remedy under the Parking Terms of Service through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any provision of the Parking Terms of Service shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
The Parking Terms of Service, incorporating any other applicable Afternic policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning parking domain names and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth in the Parking Terms of Service. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with parking domain names, except as specifically set forth in the Parking Terms of Service. If any provision of the Parking Terms of Service shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of the Parking Terms of Service shall not in any way be affected or impaired thereby.
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
The Third Party Beneficiary; Prohibition of Reverse Engineering; Publicity; Limitation of Liability; Disclaimer of Warranties, Indemnification; Waiver; Entire Agreement, Merger & Severability; Arbitration; Breach; and No Agency Created provisions shall survive the termination of the Parking Terms of Service or the cancelled enrollment of a Parked Domain Name hereunder.
In addition to any other remedy at law or equity for a breach of any provision of the Parking Terms of Service, Afternic retains the right to terminate the Parking Terms of Service with You in response to any breach without prior notification or warning, along with forfeiture of any moneys due You.
You and Afternic are independent contractors, and nothing in the Parking Terms of Service creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of Afternic.
Part 5 - TERMS OF SERVICE OF THE AFTERNIC.COM AFFILIATE PROGRAM
The terms and conditions of the Afternic.com Affiliate Program (the "Affiliate Program") are by and between Afternic, a division of GoDaddy.com, LLC, a Delaware limited liability company ("Afternic.com"), and you, your heirs, agents, successors and assigns ("You" and "Your(s)"), each side a "Party" and together, "the Parties," and are made effective as of the date of your agreement to the Afternic Membership Agreement. The following sets forth the terms and conditions of Your enrollment in the Affiliate Program and explains Afternic.com's obligations to You and Your obligations to Afternic.com concerning said Affiliate Program.
To the extent that the Affiliate Program Terms of Service conflict with the Afternic Membership Agreement, the conflicting terms here shall supersede the Afternic Membership Agreement but only with respect to the Affiliate Program and only to the extent of such conflict.
BY JOINING THE AFFILIATE PROGRAM, SUBMITTING REGISTRATION INFORMATION, CHECKING THE "I AGREE" CHECKBOX AT THE TIME OF REGISTRATION AND/OR EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (AS AMENDED FROM TIME TO TIME BY AFTERNIC.COM IN THEIR SOLE AND ABSOLUTE DISCRETION). IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT USE THE AFTERNIC.COM's SERVICES. BY PARTICIPATING IN THIS PROGRAM WITH AFTERNIC.COM FOLLOWING A CHANGE TO THIS AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO THE CHANGE.
Part 6 - GOVALUE TERMS OF SERVICE FOR AFTERNIC SELLERS.
The GoValue service is an estimated value based on an algorithm utilizing data GoDaddy has available to it to help estimate the predicted sale price of domains. However, GoDaddy does not make any guarantee or other promises to any results that may be obtained from your purchase or sale of any domain, and this is not intended as a solicitations or offer to buy any domain. It is your responsibility to independently assess and determine the value of any domain you may purchase or sell. We shall not be liable for any losses you or anyone else suffers as a result of relying on the Estimated Value, which includes not being liable for any loss of profit, loss of bargain, loss of capital through over-payment or under-sale or for any indirect, special or consequential loss.
Part 7 - FAST TRANSFER TERMS OF SERVICE FOR AFTERNIC SELLERS
By offering one or more domain names that seller owns for sale via Fast Transfer (each, a "Listed Domain"), seller signifies its agreement to the applicable Fast Transfer Terms of Service in addition to our Membership Agreement, available at: http://www.afternic.com/legal/agreements/membership-agreement, and incorporated herein by reference.
Please review these terms carefully. Some Fast Transfers are e-commerce only, without sales assistance or guidance, and these terms contain important rights and responsibilities for Afternic sellers who use Fast Transfer. To the extent that these terms of service conflict with our Membership Agreement, the conflicting terms here shall supersede the Membership Agreement but only with respect to Fast Transfers and only to the extent of such conflict.
A. Prerequisites to Use Fast Transfer Process
B. Additional Fast Transfer Terms and Conditions for Sellers
C. Afternic Payment Terms; Fraud Notices
Part 8 - TERMS FOR BIDDING ON EXPIRING DOMAIN NAMES IN THE AFTERNIC AUCTION
Afternic Expiring Domain Name Auctions have two phases: the preorder period and the live auction period. During the preorder period, before a name is in live auction, you can place a preorder on a domain name. This preorder ensures that: 1) the name will go to auction unless it is withdrawn, and 2) you will be included in the auction once it goes live. A PreOrder is a bid placed on an expiring domain before its live auction begins. At least one member must preorder the domain in order for it to go to auction. Once the domain auction begins, your preorder bid is legally binding. You can only delete your preorder before the start of the live auction.
For reasons beyond our control a domain name listed during the preorder period may become unavailable. Afternic is not an escrow agent. Therefore, Afternic cannot guarantee that a preordered domain name will become available in an auction and has no liability if a domain name for which you have submitted a preorder is withdrawn and is not available at auction, If a name is withdrawn from the Afternic Expiring Domain Names Auction, your preorder will be cancelled. Your credit card is not charged until you actually win and pay for a domain, so you will not incur any fees if a domain name for which you have submitted a preorder is withdrawn by Afternic.
If one or more Afternic customers have preordered a particular domain, Afternic will conduct an auction for the domain, and the domain will subsequently be awarded to the highest bidder in such auction. If you are the winning bidder when the auction ends, you are obligated to pay the amount of your winning bid.
If one or more Afternic customers have preordered a particular domain and in the course of the subsequent auction no bids are placed, Afternic will award the domain to the customer with the highest preorder amount.
If two or more customers preorder a domain for an identical amount, then the customer who submitted his or her preorder first will be the current highest bidder for such domain when the auction begins. If there are no subsequent bids on such domain name in the auction, then the domain will be awarded to the customer who placed his or her preorder first.
Once you confirm your preorder or your bid, if you bid on a name through our "bid now" feature, you have made a legally binding bid on the domain name, and if there are no other bidders or higher bidders you have agreed to purchase the domain.
The start time and end time that is set for an auction is an estimate. Actual start and end times may vary somewhat. An auction for a domain name will be extended by five additional minutes if in the final five minutes before the announced end time a new bid is received for the particular domain name being auctioned.
While Afternic will use reasonable commercial efforts to provide information to you via email regarding your preorder and bids for a domain name, Afternic cannot guarantee that all such emails will be delivered to you and we caution you not to rely solely on email for the status of a domain name. Information that we will endeavor to send you via email will also be posted to your 'My Afternic' account.
Afternic may in our sole discretion require the winning bidder to tender payment to us in a manner of our choosing, including but not limited to credit card or wire transfer. Payments and fees collected by Afternic for the purchase of an auctioned domain name are non-refundable, in whole or in part. In the event of a charge reversal or chargeback by a credit card company or other payment provider, or if we determine in our sole discretion that we are unable or unlikely to collect payment, any associated domain registration will immediately terminate and/or the domain name registration will be transferred to Afternic as the paying entity for the registration. Afternic may, in our sole discretion, award the reclaimed domain name to the next highest bidder in the relevant auction and charge such bidder their highest bid amount, or make the domain name subject to a new auction among bidders determined by Afternic, or otherwise dispose of the name.
You may be transferred to online merchants or other third party sites through links or frames from this Site. You are cautioned to read such sites' terms and conditions and/or Privacy Policies before using such sites in order to be aware of the terms and conditions of your use of such sites. These sites may contain information or material that is illegal, unreasonable or that some people may find inappropriate or offensive. These other sites are not under the control of the Company, are not monitored or reviewed by the Company, and the Company is not aware of the contents of such sites. You acknowledge that the Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the contents or any transmissions received through such sites. The inclusion of such a link or frame does not imply endorsement of this Site by the Company, its advertisers or licensors, any association with its operators and is provided solely for your convenience. You agree that the Company and its licensors have no liability whatsoever from such third party sites and your usage of them.
THE COMPANY, ITS ADVERTISERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THIS SITE, THE SUITABILITY OF THE INFORMATION CONTAINED ON OR RECEIVED THROUGH USE OF THIS SITE, OR ANY SERVICES OR PRODUCTS RECEIVED THROUGH THIS SITE. ANY AND ALL USE OF THIS SITE, SALES AND BIDS ON DOMAIN NAMES, AND OTHER SERVICES TO MEMBERS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE COMPANY, ADVERTISERS AND/OR ITS LICENSORS, HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO THIS SITE, THE INFORMATION CONTAINED ON OR RECEIVED THROUGH USE OF THIS SITE, LISTINGS OF DOMAIN NAMES FOR SALE ON THIS SITE, THE BIDS MADE THROUGH THIS SITE, AND ALL SERVICES OR PRODUCTS RECEIVED THROUGH THIS SITE, INCLUDING ALL EXPRESS, STATUTORY, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE COMPANY, ADVERTISERS AND/OR ITS LICENSORS DO NOT WARRANT THAT THE CONTENTS OR ANY INFORMATION RECEIVED THROUGH THIS SITE ARE ACCURATE, RELIABLE OR CORRECT; THAT THIS SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENTS OR ANY INFORMATION RECEIVED THROUGH THIS SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THIS SITE IS SOLELY AT YOUR RISK. MEMBER AGREES THAT IT HAS RELIED ON NO WARRANTIES, REPRESENTATIONS OR STATEMENTS OTHER THAN IN THIS AGREEMENT. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU BUT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW OF YOUR JURISDICTION.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ADVERTISERS AND/OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM, OR ARISE OUT OF THE USE OF, OR INABILITY TO USE, THIS SITE, THE INFORMATION CONTAINED ON OR RECEIVED THROUGH USE OF THIS SITE, OR ANY SERVICES OR PRODUCTS RECEIVED THROUGH THIS SITE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE COMPANY, ADVERTISERS AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE COMPANY, ADVERTISERS AND/OR ITS RESPECTIVE LICENSORS' LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW OF YOUR JURISDICTION.
You agree to defend, indemnify, and hold harmless the Company, its advertisers, licensors, subsidiaries and other affiliated companies, and their employees, contractors, officers, agents and directors from all liabilities, claims, and expenses, including attorney's fees, that arise from your use of this Site, or any services, information or products from this Site, or any violation of this Agreement. The Company reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with the Company in asserting any available defenses.
Company may suspend or terminate this Agreement or Member's use, and disclose the Member's identity and contact information, immediately upon receipt of any notice which alleges that Member has used this Site for any purpose, including (a) alleged violations of any local, regional, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees; (b) to enforce this Agreement; (c) respond to any allegation of illegal activity; (d) defend itself from any allegation of illegal activity; or (e) to protect the rights, property or personal safety of Company or any Member. Member agrees not to bring any action or claim against Company for any action under this Agreement or this section.
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
This Agreement incorporates by reference the Site Submission Rules if this Site allows posting and posts such Rules. This Agreement constitutes the entire agreement between the parties related to the subject matter thereof, supersedes any prior or contemporaneous (oral, written or electronic) agreement between the parties and shall not be changed except by written agreement signed by an officer of Company. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement as much as possible under applicable law shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law. Member shall not assign or transfer this Agreement and any such transfer shall be void.
INFORMATION FOR CALIFORNIA RESIDENTS: Under California Civil Code Section 1789.3, California residents entitled to the following specific consumer rights information: the Company address is: Afternic, Inc., 1 Main Street, Cambridge, MA 02142 and the phone is 781-839-2800. Pricing Information: Current rates for using the Services may be obtained by going to our pricing schedule on the Site. Company reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time. Complaints: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
By using features of this Site that allow you to post or otherwise transmit information to or through this Site, or which may be seen by other Members, you agree that you will not provide, upload, post, share or otherwise distribute or facilitate distribution of any content -- including text, communications, video, software, images, sounds, data, or other information -- that:
You also agree that you shall not harvest or collect information about the Members of this Site or use such information for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic e-mail or communications for any other commercial purpose of your own or a third party.
You further agree that you shall not solicit or collect information, or attempt to induce any physical contact with, anyone under 18 years old without appropriate prior verifiable express parental consent.
This Site generally does not pre-screen, monitor, or edit the content posted by Members of this Site. However, and subject to applicable laws, this Site and its agents have the right, at their sole discretion, to remove any content that, in this Site's sole judgment, does not comply with the Site Submission Rules or is otherwise harmful, objectionable, or inaccurate, or for any other reason. This Site is not liable for any failure, delay, damages or results, in removing such content.
You agree that your use of this Site may be suspended or terminated immediately upon receipt of any notice which alleges that you have used this Site in violation of these Rules and/or for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, etc. of its agents, officers, directors, contractors or employees. In such event, you agree that the owner of this Site may disclose your identity and contact information, if requested by a government or law enforcement body or as a result of a subpoena or other legal action, and the owner of this Site shall not be liable for damages or results thereof, and you agree not to bring any action or claim against the owner of this Site for such disclosure.
This Site reserves the right to revise these Site Submission Rules at its discretion, so check back from time to time to be sure you are complying with the current version.
This Section 45 applies as from February 17, 2024, which is the date of entry into effect of the EU Digital Services Act.
The keywords or sequences of characters, that you searched are the most significant parameters used to determine the results, whereas search history and location are secondary parameters used to further refine the list of results. As currently designed, the search engine does not allow you to change these parameters.
Part 9 - Terms of Service for Lease to Own Domain Names for Afternic Sellers
Lease to Own. By offering one or more domain names that Seller owns for sale via Lease to Own Services (“LTO Services”), Seller agrees to the following additional Terms, in addition to our Membership Agreement.
Please review these terms carefully. These terms contain important rights and responsibilities for Afternic Sellers who use Lease to Own. To the extent that these terms of service conflict with out Membership Agreement, the conflicting terms here shall supersede the Membership Agreement, but only with respect to the Lease to Own Services and only to the extent of such conflict.
A. Definitions
B. Description of Services.
The LTO Services are provided to facilitate the buying and selling of currently registered domain names through payments over time, and not the purchase or sale of associated website content. As a result, Afternic does not guarantee the quality, safety or legality of many of the domain names.
During the LTO Term, Afternic will control the LTO Domain and make the DNS for the LTO Domain available to Buyer. Upon final payment, Seller loses any further right, title or interest in the LTO Domain.
C. Fees and Payment.
By using Afternic’s “Transaction Assurance” process, you authorize Afternic to perform tasks on your behalf in order to complete the transaction. In these transactions, Afternic acts as a transaction facilitator to help you buy and sell domain names. Afternic will not use your funds for its operating expenses or any other corporate purposes, and will not voluntarily make funds available to its creditors in the event of bankruptcy or for any other purpose. You acknowledge Afternic is not a bank and the service is a payment processing service rather than a banking service. You further acknowledge Afternic is not acting as a trustee, fiduciary or escrow with respect to your funds.
D. Provisions Specific to Seller.
E. Afternic’s Rights
F. Remedies and Right to Cancel
Part 10 - Afternic - Digital Services Act Disclosure
For the purposes of the EU Digital Services Act ("DSA"), we have calculated the number of average monthly active recipients in Europe of respectively:
The calculations of the number of average monthly active recipients may be impacted by uncertainty related to the exact methodology to be applied, as well as some technical and legal constraints.
The figures will be monitored and updated in accordance with the requirements under the DSA.
