AFTERNIC.COM, Inc. USER AGREEMENT
This agreement was updated on November 14, 2000. The previous agreement is available here.
Welcome to AFTERNIC.COM, INC.'s User Agreement (this "Agreement") This Agreement describes the terms and conditions applicable to your use of all services ("Services") at the AFTERNIC.COM web site ("Site"). Throughout this Agreement, you are sometimes identified as "User," and sometimes by the words "Seller," "Bidder," or "Buyer," "Member," "Standard Member" or "Exchange Member," depending upon how you are using the Services at particular times. We are sometimes identified by our corporate name of AFTERNIC.COM, INC., a Delaware Corporation. By entering the words "I ACCEPT" below, you acknowledge that you have read, understood, and agree to be bound by all terms and conditions of this Agreement, as well as any additional rules or policies that are or may be published by AFTERNIC.COM, INC. from time to time.
This Agreement as well as any additional rules and policies, constitute the complete and exclusive agreement between you and AFTERNIC.COM, INC. concerning your use of the Services, and supersede and govern all prior proposals, agreements, or other communications. We may amend this Agreement at any time by posting the amended terms on the Site. Unless otherwise stated, all amendments shall be effective immediately upon posting on the Site. This Agreement may not be otherwise amended except in a writing signed by both parties.
Your continued use of the Services shall constitute your acceptance of any amendments to this Agreement as well as additional rules or policies that are or may be published by AFTERNIC.COM, INC., each with the new modifications. If you do not agree to any of such changes, you may request that your membership be cancelled. You acknowledge and agree that such cancellation will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by AFTERNIC.COM, INC.
1. Eligibility for Membership. Our Services are only available to individuals who can form legally binding contracts under applicable law. Our Services are not available to minors under any circumstances. AFTERNIC.COM, INC. may refuse Services to anyone at anytime, at our sole discretion. To register AS A STANDARD MEMBER ("Standard Member") you must provide us with your legal name, and email address. To register AS AN EXCHANGE MEMBER ("Exchange Member"), you must provide us with the same information as a Standard Member as well your credit card number, name on card, expiration date, billing address, city, state, country and postal code.
2. Fees. Becoming an AFTERNIC.COM Standard Member is free but in order to sell, bid or purchase a domain name registration or use Afternic.com's VIRTUAL BROKER or DNESCROW services, you must become an AFTERNIC.COM Exchange Member. Unless otherwise stated, all fees and other payments are due and payable in U.S. Dollars. Our current fee schedule and payment terms ("Fee Schedule and Payment Terms") are available here and are incorporated by reference in this Agreement. The Fee Schedule and Payment Terms are subject to change by Afternic.com at any time without prior notice.
3. The AFTERNIC.COM Site is a neutral exchange. Our Site serves as a place where Users can offer to sell and offer to purchase domain name registrations. Domain name registrations are not being offered for sale, nor are they sold by AFTERNIC.COM, INC. AFTERNIC.COM, INC. merely facilitates the transaction by which a Seller agrees to undertake the actions required by the applicable domain registrar and registry (the "Domain Name Registrar") to transfer a domain name registration (hereinafter, the "Registration") to a Buyer who offers to purchase a Registration. We do not control the actual transfer of the Registration, which is accomplished by the Domain Name Registrar, in accordance with its rules.
4. Buyer's Right to Use a Purchased Registration is Not Guaranteed. User understands that the purchase of a Registration does not guarantee that the Registration may be freely used by the purchaser. Among other things, trademark law, the rights of publicity and privacy, and other legal considerations may limit or even prohibit certain uses of the Registration. AFTERNIC.COM, INC. neither investigates the Seller's legal rights to use the Registration nor makes any representations or assurances to Buyers in this regard. Buyers are advised to consult legal counsel prior to purchasing a Registration in order to determine whether it may be used for Buyer's intended purpose under applicable law.
5. No Guarantee of Seller's Good Title or Right to Transfer a Registration. AFTERNIC.COM, INC. does not investigate or determine whether a Seller has good title to a Registration offered for sale, nor whether Seller has the right to sell, assign or transfer such Registration. Both Seller and Buyers are advised to obtain legal or other competent professional advice as to such matters, including applicable laws in force or pending, as well as the rules of the applicable Domain Name Registrar. All Services are provided "as is," subject to such defects in title and/or quality as might be disclosed by an investigation conducted at Buyer's expense.
6. Use of the VIRTUAL BROKER Service; Mutual Incorporation by Reference. AFTERNIC.COM, INC.'s VIRTUAL BROKER service allows Users to make an unsolicted offer to purchase a Registration. For more information or to view the terms and conditions of our VIRTUAL BROKER service, please click here. All such terms and conditions of our VIRTUAL BROKER services are incorporated by reference and form a part of this User Agreement.
7. Closing the Transaction with DNESCROW Service; Mutual Incorporation by Reference. After an offer results in an agreement for the purchase and sale of a Registration, Buyer and Seller are required to close the transaction through the escrow procedure provided by AFTERNIC.COM, INC.'s DNESCROW service. AFTERNIC.COM, INC.'s DNESCROW service coordinates the closing of three transactions: (1) receipt of the Buyer's payment, (2) the Registration transfer, and (3) transfer of payment to the Seller. For more information, to review the details and cost of our DNESCROW service, or to view the terms of our separate DNESCROW Agreement, please click here. All the terms of the DNESCROW Agreement are incorporated by reference and form a part of this User Agreement, and all the terms of the User Agreement are incorporated by reference in the DNESCROW Agreement, as fully as if the terms of each Agreement were restated fully in the text of the other Agreement.
8. User Conduct. You understand that all information, data, text, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not AFTERNIC.COM, INC., are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Services. AFTERNIC.COM, INC. does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will AFTERNIC.COM, INC. be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Services to:
You acknowledge that AFTERNIC.COM, INC. does not pre-screen Content, but that AFTERNIC.COM, INC. and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Services. Without limiting the foregoing, AFTERNIC.COM, INC. and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content submitted to AFTERNIC.COM, INC., including without limitation information in AFTERNIC.COM, INC. message boards, and in all other parts of the Site
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- impersonate any person or entity, including, but not limited to, an AFTERNIC.COM, INC. official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law;
- "stalk" or otherwise harass another User; or
- collect or store personal data about other users.
You acknowledge and agree that AFTERNIC.COM, INC. may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of AFTERNIC.COM, INC., its Users and the public.
9. Sellers Warranties. As a condition of using our Services, each Seller warrants and represents each of the following to Bidders, Buyers and to AFTERNIC.COM: (a) the Registration is in good standing; (b) the Seller is not in breach of any obligation to the registrar or registry of 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) the Seller is an authorized contact on the Registration and has sole and exclusive authority to authorize transfer 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; (f) the Seller is 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) that the Seller holds no trademark, tradename, or other proprietary commercial interest in the Domain Name and will hereafter make no objection to Buyer's registration or use of the Domain Name; (i) to the best of the Seller's 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 is not obscene; and (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. Seller agrees to advise AFTERNIC.COM, INC. immediately in the event that Seller become aware of any claim of infringement or any trademark, trade name, service mark, copyright or other right described in this paragraph.
10. Agents. You agree that, if you are using the Services for someone else, you represent that you have the authority to nonetheless bind that person as a principal to all terms and conditions provided herein, including the VIRTUAL BROKER terms and conditions and the DNESCROW Agreement. You accept liability for harm caused by wrongful use of the Services.
11. Indemnification. You agree to defend, indemnify and hold AFTERNIC.COM, INC. harmless from and against any and all liabilities, losses, damages, costs and expenses including reasonable attorneys fees and court costs associated with third party claim, action, or demand brought against AFTERNIC.COM, INC. arising from or otherwise related to your actions, including without limitation, for breach of any representation or warranty contained herein, or infringement of any trademark, copyright, or other claim of any kind based upon the purchase, sale, license, transfer or use of a Registration in accordance with this Agreement, or any other provision of this Agreement or under the DNESCROW Agreement or VIRTUAL BROKER terms and conditions.
12. Seller Obligated to Sell; Bidding and Buying; Binding Contract. As a Seller when you list a Registration for auction or sale, or use our VIRTUAL BROKER service, you make a binding offer for sale that cannot be withdrawn. If during the course of an auction you receive one or more bids or offers at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), then you are obligated to complete the sale to the highest bidder. Bids by Bidders may not be withdrawn before the close of an auction. As a Bidder, if you have the highest bid at the end of an auction, at or above the minimum price (or in the case of reserve auctions, at or above the reserve price), you have accepted Seller's offer. If the foregoing conditions have been satisfied and there has been no material breach of either the User Agreement or the VIRTUAL BROKER terms and conditions (if applicable) by the party seeking to enforce such binding contract, there shall be a binding contract between Buyer and Seller to complete the transaction in accordance with this Agreement, the VIRTUAL BROKER terms and conditions (if applicable), and the DNESCROW Agreement. Notwithstanding the foregoing, Afternic.com is not responsible for the enforcement of any transaction between Users of the Site. Such enforcement shall be the sole responsibility of the aggrieved party.
13. No Bid Manipulation. Sellers may not manipulate the auction price of a Registration, either by using a shill (a secondary account or third party) or by bidding themselves. As a Bidder, you may not engage in any form of bid manipulation such as pulling other bidders to their maximum bid, then retracting the high bid, and then re-bidding at a small increment above the legitimate high bidder.
14. Suspension of Auction, Bid or Closing Transaction. AFTERNIC.COM, INC. reserves the right at its discretion to halt or suspend any sale, auction, listing, bid or closing transaction at any time. Without limiting the generality of the this right, you agree and acknowledge that AFTERNIC.COM, INC. may halt any sale, auction, listing and/or closing transaction in progress in the event that AFTERNIC.COM, INC. receives notice that would be sufficient in the courts of the State of New York to satisfy the burden of proof that a purchase, sale, transfer, assignment or registration of a domain name constitutes direct or contributory infringement, trademark piracy, cybersquatting, or any other violation of any applicable civil or criminal legislation, or of the rights of any third party. AFTERNIC.COM, INC. may also halt an auction and/or closing transaction in progress if AFTERNIC.COM, INC. receives notice under the terms of any Domain Name Registrar's dispute policy that the Registration is the subject of a domain dispute policy proceeding.
15. Listing and Selling. Listings for Domain Names shall follow the user conduct guidelines set forth in Paragraph 8, and shall be in a format suitable for placement on the AFTERNIC.COM web site.
16. Remedies for Misuse of Your Account. Without limiting any other remedies, AFTERNIC.COM, Inc. may suspend or terminate your account and status as a Member if you misuse your account or any Services.
18. Ownership of Data. You acknowledge and agree that AFTERNIC.COM, INC. owns all database, compilation, collective and similar rights, title and interests worldwide in our auction and other proprietary information databases, and all information and derivative works generated from those databases.
19. AFTERNIC.COM, Inc. Intellectual Property. No User shall receive any right, license or permission to use or reproduce any of the AFTERNIC.COM, INC. trademarks, copyrights or other intellectual property rights nor to link to any of the AFTERNIC.COM, INC. web pages without the prior written permission of AFTERNIC.COM, INC.
20. System Integrity; System Performance Degradation. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the AFTERNIC.COM site, or any action being conducted on our Site. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose your password to any third parties to use your password for any unauthorized purpose. You acknowledge that AFTERNIC.COM, INC. depends upon a computer system that is responsive to the demands of the Services. You further acknowledge that, occasionally, AFTERNIC.COM's computer system is subjected to exceptional volumes of usage and/or electronic mail messages, that may result in significant degradation of AFTERNIC.COM's system processing and response time. Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of usage and/or incoming electronic messages, AFTERNIC.COM, INC. reserves the right, in its sole discretion, to filter or block Users and/or electronic messages originating from the identified sources of the high volume traffic. AFTERNIC.COM, INC. will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. AFTERNIC.COM, INC. further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.
21. Restrictions on Feedback. You may not take any actions that may undermine the integrity of the system or User feedback system, such as: leaving positive feedback for yourself using secondary User IDs or third parties; leaving negative feedback for other Users using secondary accounts or third parties (feedback bombing); or leaving negative feedback if a User fails to perform some action that is outside the scope of the auction (feedback extortion). If you earn a net feedback rating of -4 (minus four), your membership will automatically suspend, and you will be unable to sell, list or bid. Because feedback ratings are not designed for any purpose other than for facilitating trading between AFTERNIC.COM Users, we may suspend or terminate your account if you choose to market or promote your feedback rating in any venue other than AFTERNIC.COM, INC.
22. Breach and Failure to Perform. We may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your use of our Site or your status as a Member, including canceling any of your current auctions (listings, bids, escrows, pending transfers), if you breach this Agreement, or if we are unable to verify or authenticate any information you provide to us. If any Buyer or Seller fails to complete a transfer under the terms of this Agreement, the VIRTUAL BROKER terms and conditions, or under the DNESCROW Agreement, it shall be grounds to revoke that party's membership and cancel or terminate any pending auctions or sales.
23. Representations and Warranties. You represent that all information provided by you in connection with your use of the Services is accurate and current. THE SERVICES ARE PROVIDED TO YOU "AS IS." WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from jurisdiction to jurisdiction.
24. Release. In the event that you have a dispute with a Buyer, Seller, or any other User, you hereby acknowledge and agree to release AFTERNIC.COM, INC. and its agents and employees from any claims, demands and damages (both actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you acknowledge and agree to waive California Civil Code §1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
25. Right of Refusal. AFTERNIC.COM, INC. reserves the right to refuse membership to any person, at any time, and for any reason. We also reserve the right to refuse posting of any Lot or Registration. In any case where we refuse membership or Lot posting, current charges for said membership and/or Lot shall be refunded.
26. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT AFTERNIC.COM, INC. WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF AFTERNIC.COM, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AFTERNIC.COM, INC.'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
27. General Compliance with Laws. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services, including, but not limited to, your bidding on, listing, purchasing, of selling of a Registration.
28. No Agency. You and AFTERNIC.COM, Inc. are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
29. Notices. Except as explicitly stated otherwise, any notices shall be given by email to [email protected] (in the case of AFTERNIC.COM, INC.), or to the email address you provide on the AFTERNIC.COM Membership Registration Form (the "Form") (in your case), or such other address as either party shall specify by notice to the other at above addresses. Notices shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or not received. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the postal address provided on the Form. In such case, notice shall be deemed given five days after the date of mailing.
30. Arbitration. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in New York, New York by a panel of one arbitrator, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or AFTERNIC.COM, INC. may seek any interim or preliminary relief from a court of competent jurisdiction in New York, New York necessary to protect the rights or property of you or AFTERNIC.COM, INC., pending the completion of arbitration.
31. General. Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of New York, as if the Agreement was a contract wholly entered into and wholly performed within the State of New York.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
The failure of AFTERNIC.COM, INC. to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by AFTERNIC.COM, INC. of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. AFTERNIC.COM, INC. will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of register.com as reflected in the original provision.
You agree and acknowledge that any acceptance of your application for the Services and the performance thereof will occur at our offices in New York, New York, the location of our principal place of business.
You acknowledge and agree that, to the extent necessary, it is your responsibility to: (a) provide all equipment, including a computer and modem, necessary for you to establish a connection to the Internet; and (b) provide for your own connection to the Internet and pay any telephone service fees associated with such connection. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
32. Disclosures. The services hereunder are offered by AFTERNIC.COM, INC., located at Afternic.com, Inc. 575 Eighth Avenue, 11th Floor, New York, NY 10018. If you are a New York resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. Fees for our services are available here.
INFORMATION FOR CALIFORNIA RESIDENTS:
Under California Civil Code Section 1789.3, California residents entitled to the following specific consumer rights information:
Pricing Information. Current rates for using the Services may be obtained by going to our pricing schedule. AFTERNIC.COM, INC. 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.