Domain Transfer Agreement

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DOMAIN TRANSFER AGREEMENT
Effective Date: 01 April 2015
1. Introduction
This Sedo Domain Transfer Agreement (this “Agreement”) is entered into by and
between Sedo.com, LLC (“Sedo”) and you, and is made effective as of the date of
electronic acceptance. This Agreement sets forth the terms and conditions of your use of
Sedo’s Domain Transfer Service (“Domain Transfer Service” or the “Service”). Your
acceptance of this Agreement indicates that you have read, understand and agree to the
terms of this Agreement, along with Sedo’s User Agreement, which is hereby
incorporated by reference. Any capitalized terms not defined within this Domain Transfer
Agreement shall have the meaning as described in the Sedo User Agreement.
Sedo may, in its sole discretion, change or modify this Agreement at any time after a
reasonable notification period, usually no less than two weeks, and, unless Sedo receives
your written objection to the modified terms of the Agreement within the notification
period, such changes shall be effective upon posting to the Sedo website (“Site”). You
acknowledge and agree that (i) Sedo may notify you of such changes or modifications by
posting them to the Site and (ii) your use of the Site or the Services found at the Site
after the Effective Date date at the top of this page, shall constitute your acceptance of
this Agreement as last revised. If you do not agree to be bound by this Agreement as last
revised, do not use (or continue to use) the Site or the Services found at the Site.
2. Description of Domain Transfer Service
The Domain Transfer Service offers domain buyers (“Buyers”) and domain sellers
(“Sellers”) Sedo's assistance with the payment and transfer of a registration, or legal
right to register, an Internet domain name (“Domain”) that is the subject of a purchase
and sale agreement between Buyer and Seller. Sedo acts here neither as a Buyer or
Seller, nor as the representative of a Buyer or a Seller, nor as a broker. Sedo acts as a
secure intermediary and will securely hold the purchase price for the Buyer while the
Seller transfers ownership of the Domain to Buyer. Upon conclusion of the Domain
transfer process, Sedo will release Buyer's funds and forward the purchase price to the
Seller, less applicable fees as described on the Sedo Price List.
Drafting of custom purchase and sale agreements, enforcing the terms of such
agreements between Buyer or Seller, or any legal consultations on the part of Sedo are
not included in the Service and must be obtained from User's own legal representative.
Please note that the Domain Transfer Service is limited to the Domain and purchase
price. Content, data, programming or other elements of the website/project and/or any
additional consideration included in a purchase and sale agreement are outside the scope
of the Domain Transfer Service and the transfer or payment for such shall be the sole
responsibility of Buyer and Seller. Buyer and Seller agree that they are solely responsible
for the transfer of any and all elements of a transaction outside the Domain and purchase
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price and that once the Domain Transfer Service is initiated, neither party will request
cancellation due to a dispute over such.
3. Fees and Related Costs
The Domain Transfer Service is provided for free to Buyers and Sellers conducting a
purchase and sale on Sedo's Domain Marketplace or in conjunction with Sedo’s Domain
Brokerage Service. For Users who wish to order the Domain Transfer Service for
transactions executed outside the Domain Marketplace, the amount of the fee for the
Domain Transfer Service is specified on the Sedo Price List, which is located on the Site
and subject to change from time to time.
When a Domain is transferred from the Seller to the Buyer, Buyer or Seller, based upon
their respective registry and registrar providers, can incur further costs. The
responsibilities for these payment obligations are defined by the relationship of the Buyer
or Seller to the provider. This can include, but is not limited to, the responsibility of the
Seller to pay for a registration renewal when the domain is set to expire within sixty (60)
days from the date the purchase and sale agreement was reached.
4. Management of Domain Transfer
4.1. Reaching an Agreement
In the event that a purchase and sale agreement has been reached between the Buyer
and the Seller during the course of a Domain Marketplace or Auction bidding process,
Sedo shall provide a standard online purchase and sale contract for Buyers and Sellers
that is automatically tailored to the sale of the Domain that was the subject of their
negotiation. Depending upon the processing stage of the transaction, the other User's
respective data may be made anonymous until the transaction is complete. Should either
party fail to meet to their obligations under the respective agreement, the identity of the
breaching User shall be provided to the injured User upon request.
4.2. Obligation of Buyer to Make Payment to Designated Bank Account
After reaching agreement for the purchase and sale of a Domain, Sedo shall contact the
Buyer via email to request the transfer of the purchase price amount due to a bank
account as indicated by Sedo, where it will be safeguarded on Buyer’s and Seller’s behalf
until transfer of Domain registration has been completed. Upon said request by Sedo, the
Buyer is obligated to promptly remit payment of the amount owed according to Sedo’s
instructions.
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4.3. Transfer of Domain
Once Sedo has received the full amount of the purchase price to be held on Buyer’s and
Seller’s behalf, the process of transferring or assigning registration of the Domain from
the Seller to the Buyer shall commence. Sedo shall then instruct the Buyer and the Seller
of the Domain as to the required steps and best practices involved in the technical
domain name registration transfer process. Sedo can only ensure the prompt and orderly
transfer of Domain ownership if Sedo's instructions to the Buyer and Seller are strictly
followed. As such, the Buyer and Seller are obligated to provide the required cooperation
to each other and to Sedo. In addition to being a material breach of this Agreement,
failure to cooperate may be considered by the injured party as a material breach of the
relevant purchase and sale agreement. In the event that Sedo requests Buyer’s
confirmation of control of the Domain and does not receive a response either confirming
or denying their control of the Domain within ten (10) days, Sedo shall be authorized to
deem the transfer of registration to the Buyer complete and may release the purchase
price to Seller.
4.3.1. Quick Transfer
If during the transfer of a Domain the respective Buyer is not responding for a
reasonable amount of time to Sedo´s instructions after remitting payment, the Buyer
through their failure to respond, authorizes Sedo to effectuate a "quick" transfer (“Quick
Transfer”). In the case of a Quick Transfer, Sedo may, at it’s sole discretion, conduct a
domain "push," and Buyer authorizes Sedo to create a domain registrar account on
behalf of the Buyer at the Domain’s current registrar utilizing the contact information in
the Buyer's Sedo User Account and due to their failure to respond to Sedo in a timely
manner, Buyer agrees to pay any fees incurred by Sedo effectuating the “push” of the
Domain from the Seller’s registrar account to the Buyer’s. Once the registrar account has
been created, and the Domain has been securely pushed from Seller's registrar account
to the Buyer's, Sedo's transfer agent will give the Buyer their respective registrar account
information, including password and login details. Transfer of Domain ownership is
transfer of control of the Domain, and once the Buyer has control over the purchased
Domain, he/she cannot claim that Sedo has not performed its duties under this User
Agreement based solely on the fact that the Domain is not at the specific domain
registrar of Buyer’s choice.
4.4. Successful Transfer and Payment of Purchase Price
Upon successful transfer of the Domain to the Buyer, payment of the purchase price
owed to the Seller shall be remitted in a timely manner. A successful transfer of
ownership of the Domain has taken place when the Buyer has gained technical control of
the Domain and is capable of updating the Domain's WHOIS record. In the event that
Sedo assumes temporary control of the Domain on behalf of Buyer and Seller to
effectuate the transfer, then a successful transfer shall be considered to have been made
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at that moment in which Sedo obtains control of the Domain and the Seller has lost
control of the Domain.
If Sedo assumes temporary control of the Domain, a Transfer Agent will instruct the
Buyer to immediately take over technical control of the Domain. Sedo shall not be held
responsible for maintaining the Domain. If a Buyer does not take over technical control of
a Domain within sixty (60) days after Sedo took over temporary control of the Domain,
Sedo will not extend the Domain registration period. This may result in the lapse or
expiration of the Domain. Buyer agrees to hold Sedo harmless and will not be
compensated for this loss.
The purchase price for the Domain shall be the price in the currency as identified in the
purchase and sale between the Buyer and Seller. The purchase price in the agreed-upon
currency shall form the basis for formulating any fees owed Sedo. If the agreed-upon
currency is not identical with the currency originally selected by the User or with the
default currency preference as indicated by or assigned to the User in his/her User
Account, then a conversion of the purchase price into the default currency shall
automatically occur. The exchange rate used by Sedo for this conversion shall be
determined in accordance with the exchange rate of the European Central Bank which
was valid at the point in time the Domain Transfer Service was initiated, rounded to five
(5) places behind the decimal point. The result of any conversion in accordance with this
section, including the calculation of any fees owed to Sedo, shall be commercially
rounded, dependent upon the currency assigned to the User, to full US dollars (USD) or
full Euros (EUR) or full British pounds (GBP). The result of commercial rounding shall be
the purchase price of the User in the currency selected by the User or assigned to the
User. In this case, the User shall not be entitled to demand to remit or receive the
payment of the purchase price in another currency or to avail himself/herself of a
different exchange rate.
4.5. Unsuccessful Transfer and Repayment
In the event that the transfer of Domain registration is ultimately unsuccessful for
reasons unrelated to Buyer, the full payment of the Domain’s purchase price submitted
to Sedo shall be returned to the Buyer. There shall be considered to be no ultimate
failure of the transfer, and therefore no return of the purchase price to Buyer, if the
unsuccessful transfer of the Domain to the Buyer is solely due to the fact that the Buyer
has not undertaken the further required cooperative actions required upon his/her part
after the payment of the purchase price and any additional fees if relevant. Sedo will use
its best efforts to effectuate the purchase and sale of a Domain and if a purchase and
sale agreement has been made between a Buyer and a Seller on the Sedo Domain
Marketplace (including by auction), absent new, material information presented to Sedo,
or unless the Buyer is claiming breach of contract or anticipatory breach of contract,
Sedo will continue to proceed with the Doman Transfer Service. If Sedo has received
payment of a Domain’s purchase price from the Buyer and has taken control of the
Domain from the Seller, the Domain will be forwarded to the Buyer and the purchase
price remitted to the Seller accordingly. At that point, the aggrieved party, either Buyer
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or Seller, may exercise their right to initiate a legal process or proceeding against the
other party. Both Buyer and Seller agree that Sedo is not responsible or liable in any way
for a purchase and sale transaction ending in this manner.
4.7. Proof of Purchase/Requests for Tax Information
Sedo is neither the buyer nor seller in a Domain purchase and sale transaction. As such,
if the Buyer requires an invoice of the purchase and sale transaction or is required to
request tax information from the Seller, such as a form W-9, the Buyer needs to inform
Sedo of this request prior to the completion of the Domain Transfer Service. Sedo will
then communicate the request to the Seller and Seller agrees that he/she will not refuse
to comply with such request.
4.8. Fraud
In the event Sedo is made aware of documented fraud relating to a Buyer or Seller
utilizing the Domain Transfer Service after transfer of the respective Domain has been
completed, Seller agrees that, if Sedo is able to reclaim the Domain on behalf of Seller,
Seller is obligated to accept a return of the Domain and shall remit back to Sedo the
Domain’s purchase price. In the event that Seller does not cooperate with Sedo’s
instructions, Sedo shall be authorized, at its sole discretion, to either hold the Domain on
Seller’s behalf and deduct any portion of the purchase price Seller has not returned to
Sedo from any other amounts owed to Seller by Sedo, or to resell the Domain to another
Buyer to recoup Sedo’s losses. Notwithstanding the foregoing, Sedo reserves the right to
recover from Buyer or Seller any and all damages resulting from breaches of this Domain
Transfer Agreement and/or Sedo User Agreement.
5. Penalties for Failing to Perform Obligations
Sedo reserves the right to cancel the Domain Transfer Service if one of the parties to the
purchase and sale agreement fails to fulfill its obligation to cooperate in the transfer
process after two (2) requests are made by Sedo via the email addresses provided in
Buyer’s and/or Seller’s Sedo User Account ("Failed Transfer").
In the case of a Failed Transfer, Buyer and Seller agree that Sedo reserves the right to
collect any applicable fee it would otherwise be owed for a successfully completed sale
from that party who has violated his/her obligation to cooperate in the completion of the
transaction. Furthermore, any claims for damage compensation or contractual
performance may be asserted by the non-breaching party against that party which
violates his/her obligations under these terms or the terms of the applicable purchase
and sale agreement.
BUYER AND SELLER AGREE THAT SEDO SHALL NOT BE RESPONSIBLE FOR SEEKING
ENFORCEMENT OF ANY PURCHASE AND SALE AGREEMENT.
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6. Disputes between the Parties during Transfer
In the event that the purchase price to be paid by the Buyer has been transferred to the
Sedo and the Domain and/or website content has been transferred to the Buyer in whole
or in part, neither party may seek cancellation of the Domain Transfer Service. In the
event that the parties become involved in a dispute at any time during the Domain
Transfer Service, Sedo may set a reasonable deadline for the parties to reach an
agreement. In the event that said deadline passes without a resolution, Sedo shall then
be entitled to release the purchase price to the to the Seller and the Domain and/or
website content to the Buyer in accordance with the purchase and sale agreement.
PROVIDED THAT A CLAIM ORIGINATING FROM A FAILED TRANSFER IS NOT BASED UPON
THE INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF SEDO, ITS STATUTORY
REPRESENTATIVES OR VICARIOUS AGENTS, BUYER AND SELLER AGREE THAT SEDO
SHALL NOT BE LIABLE FOR DETRIMENT OR DAMAGES, ORIGINATING FROM A FAILED
TRANSFER CAUSED BY, BUT NOT LIMITED TO, EITHER BUYER OR SELLER (i) REJECTING
THE PROPER COMPLETION OF TRANSFER-RELATED DOCUMENTS, (ii) IMPEDING THE
EXECUTION OF THE TRANSACTION IN ANOTHER WAY, OR (iii) IN THE CASE WHERE ONE
OF THE CONTRACTUAL PARTIES CANNOT BE PROPERLY IDENTIFIED DUE TO PROVIDING
INCORRECT OR MISLEADING CONTACT INFORMATION.
7. Disclaimer of Warranties by Sedo
In addition to those disclaimers and limitations on warranties found in the Sedo User
Agreement, Buyer and Seller understand, acknowledge and agree that:
(i) SEDO IS NOT THE SELLER, AND AS SUCH, MAINTAINS NO DUTY TO VERIFY THAT THE
DOMAIN NAME AND/OR WEBSITE CONTENT BEING SOLD AND TRANSFERRED DO NOT
VIOLATE THE PRIORITY RIGHTS OF ANY THIRD PARTIES AND THUS MAKES NO
WARRANTIES AS TO THE EXISTENCE OF CONFLICTING PRIORITY RIGHTS OF ANY THIRD
PARTIES;
(ii) THE BUYER AND SELLER AGREE THAT THE DOMAIN TRANSFER SERVICE DOES NOT
INCLUDE AN EXAMINATION OR VERIFICATION OF THE EXISTENCE OF ANY CONFLICTING
PRIORITY FIRM NAME, NAMING OR TRADEMARK RIGHTS, OR OTHER RIGHTS OF THIRD
PARTIES; AND
(iii) FAILURE TO PERFORM IN ADVANCE AN EXAMINATION OF THE DOMAIN NAME
AND/OR WEBSITE CONTENT FOR THE EXISTENCE OF CONFLICTING RIGHTS,
INCLUDING, BUT NOT LIMITED TO, PRIORITY OWNERSHIP RIGHTS, TRADEMARK
RIGHTS, AND/OR VIOLATION OF APPLICABLE LAW, IS THE SOLE RESPONSIBILITY OF
THE BUYER AND SELLER.