You must be eighteen (18) or over, or be represented by someone eighteen (18) or over, to register with DomainExchange.ca or otherwise use any of the Services. Participation in the Services is void where prohibited. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions hereof. Futhermore, you must comply with all CIRA related policies regarding .ca ownership.
3. Fees and Payments
As consideration for any Services you select, you agree to pay DomainExchange.ca the applicable fees for such Services as set forth on our website at the time of sale, unless a different fee or payment arrangement is agreed to in advance by us in writing. You also agree to pay any additional fees, surcharges, or supplemental payments that may be imposed on DomainExchange.ca by CIRA, or any other regulatory agency, that relates to your domain name registration.
Payments may be made by bank wire, valid credit card, or check. All fees are due immediately and are non-refundable. Domain name registrations that are over five (5) days past due may be manually or automatically deleted at any time, in our sole discretion, without prior notice to you. Similarly, any Services that are over five (5) days past due may be immediately terminated by us without prior notice to you. We also may, in our sole discretion, use any and all remedies available to us to collect any outstanding fees for Services rendered, including charging the credit card on your file, collecting funds held in your account, or, in the event a domain name sale commission has not been paid for, assuming ownership of said domain name, which we can either keep for our own account or sell.
4. Required Information
As further consideration for the Services, you agree to provide us with certain true, current, complete, and accurate information about you as required by our application process as well as to maintain and update this information as needed to keep it true, current, complete, and accurate. This information includes (the ìContact Dataî):
The domain name you own;
Your name and e-mail address;
The name, mail address, e-mail address, telephone number, and, where available, fax number of the technical and administrative contacts for your domain name;
The original creation date of the registration; and
The expiration date of the registration.
We rely on Contact Data to send you important information and notices regarding your account, legal matters, and our Services, as well as to provide proper WHOIS information of your registered domain names as required by ICANN and the registries with which we have contractual obligations. It will be considered a material breach of this Agreement if you: (i) fail to update your Contact Data within five (5) business days of any changes (ii) willfully provide inaccurate or unreliable Contact Data; (iii) willfully fail promptly to update your Contact Data; or (iv) fail to respond within fifteen (15) days to our inquiries or those of the registrar regarding the accuracy of the Contact Data. Such a breach will be a sufficient basis for us to exercise all the rights and remedies available to us under applicable law and this Agreement, including, without limitation, suspension or termination of the Services and any accounts you may have with us.
If you provide us with personal data pertaining to third party individuals as part of using our Services, you represent and warrant that you have notified, and obtained consent from, any such third party individuals with regards to: The purposes for which you have collected such third partyís personal data; The intended recipients or categories of recipients to whom you intend to disclose the third partyís personal data; What part of the third partyís personal data you are required to disclosed to us and what part, if any, you are choosing to voluntarily disclose; and How the third party can access and, if necessary, rectify their personal data disclosed to us. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible or liable for any damages or other consequences resulting from either your failure to provide notice or receive consent from such individuals or from your provision of outdated, incomplete, or inaccurate information.
5.1. Domain Marketplace
Except as otherwise provided this Agreement and in applicable posted policies, DomainExchange.ca offers its registered users a domain trading platform ("Domain Marketplace") whereby domain owners may list, market, auction, and sell Domains to buyers ("Sellers"), and whereby domain buyers on the Site and promotional partner network may search, bid, and purchase domains from their owners ("Buyers").
There are no upfront fees for listing a Domain for sale on the Domain Marketplace and Sellers may delete their Domain listings from the Domain Marketplace at any time without cost unless their Domain is subject to an active negotiation, has been sold and is pending transfer, and/or is subject to a brokerage agreement. DomainExchange.ca charges Sellers a commission fee for sales originating and/or completed as a result of DomainExchange.ca's Services. DomainExchange.ca's standard fees and any changes will be posted to our Price List, and the applicable Services and fees will be binding on the effective date noted on the Price List.
Users wishing to list their Domain for sale start by choosing the listing type as described below. Users seeking to buy Domains may enter search terms on the Site to query the Marketplace for relevant Domain listings and then either submit a bid with an offer to buy or accept the Seller's stated price. These bids and the responses of the Sellers and Buyers will be forwarded to the other party free of charge via the email addresses provided as part of user registration. DomainExchange.ca cannot guarantee that any particular bid or response will be transmitted to the intended recipient. DomainExchange.ca acts here neither as a Buyer nor Seller, neither as a lessee nor lessor, nor as the representative of any of the above-mentioned parties.
In the event that a Seller and Buyer negotiate an agreement for the purchase and sale of a Domain via the Domain Marketplace, the Buyer and Seller agree that the terms of the purchase and sale will follow the standard online purchase and sale agreement supplied by DomainExchange.ca and available for review upon request. In addition, Buyer and Seller agree that DomainExchange.ca shall manage the purchase and sale transaction in accordance with the terms of DomainExchange.ca's Domain Transfer and Escrow Services, which is provided free of charge for all Domain Marketplace transactions.
Not all domain extensions are alike, and certain top-level domains (TLDs) carry abnormal registration policies, restrictions, prices and other associated fees. Buyer and Seller are responsible for conducting all research necessary to make themselves familiar with the rules, regulations and fees of the associated registrar for the contemplated Domain prior to entering an agreement to purchase or sell a Domain. Buyer and Seller agree that DomainExchange.ca shall not be held responsible for any abnormal registration policies, prices or fees.
5.1.1. Domain Marketplace Rules and Requirements
At all times Buyers and Sellers remain bound by the terms and conditions of this Agreement and the policies related to buying and selling domains on the DomainExchange.ca Domain Marketplace found in the Policies section of the Site. Each DomainExchange.ca User is limited in the number of Domain negotiations ("Open Bid Threads") in which they may participate simultaneously, depending on their user account certification status. DomainExchange.ca makes no representations or warranties regarding the features of Domains listed in the Domain Marketplace. This shall apply particularly, but not exclusively, to visitor statistics, traffic statistics, and the precise alphanumerical composition of a Domain.
126.96.36.199. Binding Offers
If, during the course of an Open Bid Thread, a User makes an offer for the conclusion of a purchase and sale agreement, or at any time a prospective Buyer makes an offer for a Buy Now listing below the Seller's stated price, then he/she is bound to this offer for 168 hours, which corresponds to seven days from the time when the offer was rendered, unless, when available as an option, a prospective Buyer has chosen a different duration of time at the time of submitting their offer, of which the Seller will be notified. ("Offer Period"). Due to the binding nature of offers to purchase or sell Domains, Users should review the Domain listing carefully and perform all necessary research on suitability for intended uses to avoid mistake before submitting a binding offer. Mistake does not relieve a User from their obligations to purchase or sell a Domain once a binding offer has been accepted. The Buyer's offer shall lapse if the other User rejects the offer, accepts another User's offer, submits a counter-offer, or the binding time period is allowed to lapse. A belated acceptance of the offer or a counter-offer shall be considered to be a new offer.
188.8.131.52. Taxes, Currency, & Purchase Price Conversion
All prices quoted between Users during the negotiation or auction process or used by Seller in Buy Now listings or Minimum Offer preferences are understood to be end prices including any applicable taxes. During the bidding process, Users have the opportunity to select the currency for offers or counter-offers for Domains. As soon as both parties have used the same currency for the offer and the counter-offer within an Open Bid Thread, this currency shall become the controlling currency until the conclusion of the negotiating process.
The purchase price for the Domain shall be a price in the currency upon which agreement has been reached through the timely acceptance of an offer. This purchase price in the agreed-upon currency shall form the basis for the execution of the purchase and sale agreement between the Buyer and the Seller as well as formulating any fees owed between the Seller and DomainExchange.ca. 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 the User in his/her User account, then a conversion of the purchase price into the default currency shall automatically occur at the moment the parties reach agreement. The exchange rate used by DomainExchange.ca 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 agreement was reached, rounded to five (5) places behind the decimal point. The result of any conversion in accordance with this section shall be commercially rounded, dependent upon the currency assigned to the User, to full Canadian dollars (CAD) or 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.
184.108.40.206. Legal Relationship as between DomainExchange.ca, Buyer and Seller
DomainExchange.ca is neither owner of the Domains listed in the Domain Marketplace, nor does it have any influence or control on the business conducted among Users of the Domain Marketplace. The responsibility for the content of Domain listings, including the accuracy of any statistics, whether measured and displayed by DomainExchange.ca or otherwise, lies exclusively with the respective Sellers, Buyers, and Users. DomainExchange.ca shall not be liable for legal transactions or other acts of Domain Marketplace users. This also applies to any violations of rights of a third party through the use of DomainExchange.ca's Services, including, but not limited to, the listing of a Domain in the Domain Marketplace that infringes intellectual property rights, rights of the use of a name, and trademark rights. Buyer and Seller agree that DomainExchange.ca shall not be held responsible for the failure of either party to a purchase and sale agreement to complete their obligations under such an agreement, and that DomainExchange.ca, as the neutral facilitator of the Domain Marketplace and associated Services, shall not be subject to any claims arising from the attempted purchase and sale of Domains.
5.1.2. Domain Listing Options
Sellers have several listing options when offering Domains for sale on the Domain Marketplace: Buy Now, Make Offer, or Auction.
Sellers may submit a 'Buy Now' Domain listing by submitting or updating their Domain listing to include a fixed price that serves as an open-ended offer to Buyers on the Domain Marketplace to sell the Domain at the indicated price. This offer to sell the Domain at the indicated price shall remain binding for so long as until Seller updates the Domain listing in their DomainExchange.ca user account with a different fixed price offer or an alternative listing type and this update has been reflected on the Domain Marketplace. Sale prices indicated in Buy Now listings are considered to be the end price for the Buyer including any applicable taxes. When available, Buyers on the Domain Marketplace may still submit an offer to the Seller below the binding Buy Now price indicated by Seller, which Seller can either ignore, accept or respond by adjusting their Buy Now price expectations.
If a Seller does not state a fixed sales price when listing their Domain for sale, the Domain listing will display as a 'Make Offer' listing and serves as an invitation for other Users to submit an offer for the purchase and sale of the Domain that is the subject of the Domain listing.
Sellers may submit a 'Minimum Offer' preference for their Domain listing by submitting or updating their Domain listing to include a minimum price at which Seller is willing to consider offers. A Minimum Offer indication on your Domain listing serves as an invitation for other Users to submit an offer in excess of the stated amount for the purchase and sale of the Domain that is the subject of the Domain listing.
Buy Now and Make Offer Domain listings are automatically promoted on the DomainExchange.ca Site and the websites of DomainExchange.ca's promotional partners based on the listing preferences of DomainExchange.ca's partners, which are subject to change from time to time without prior notice.
5.1.4. General Terms Applicable to all Listing Types
The following Domain listing requirements and obligations apply to your use of DomainExchange.ca's Domain Marketplace and Auction Platform:
(a) Buyer and Seller agree to create a User account and to fill out the registration form completely and accurately. The Domain Seller must be the verified owner of the domain name listed for sale. Unless the domain owner has a privacy shield for WHOIS database purposes, information provided within the DomainExchange.ca User's account must correspond to the information contained in the WHOIS database.
(b) Should the registration of a Domain that is the subject of a purchase and sale transaction be in risk of expiring with its relevant Domain registrar, or if the expiration date lies within the next sixty (60) days from the date when an agreement is made for the purchase and sale of the Domain, Seller agrees to renew the Domain registration and is solely responsible for any costs or fees associated with such renewal. Buyer and Seller are each respectively responsible for any related fees charged by his/her registrar and/or service provider.
(c) Domains are the result of, and are subject to, all of the conditions, limitations, and restrictions contained in Domain registration agreements between the Seller and a third-party Domain registrar or other service provider. As such, the transferability of Domain registration may be limited, prohibited, or otherwise subject to conditions imposed by the Domain registrar or service provider. Nothing in this Agreement or on the Site shall be construed to imply that the Seller possesses any rights to a Domain beyond those specified in the Seller's agreement with the relevant Domain registrar or service provider. When referencing a Domain as the object of a purchase and sale transaction within these terms, Domain shall refer to any rights the Seller may possess with regard to the registration of a particular Domain under its Domain registration agreement with a Domain registrar. Any content or material associated with a developed website that is the object of a purchase and sale agreement must be materially described in writing to be subject to the relevant purchase and sale agreement.
(d) As a Seller of a Domain listed on the Domain Marketplace and/or Auction, you represent and warrant that: (i) you have registered the Domain with the appropriate Domain registrar or other registration authority; (ii) your registration of the Domain is current and not subject to deletion, cancellation, rescission, or deactivation by the applicable Domain registrar or other registration authority; (iii) you have not taken any action that would impair your ability or right to transfer the Domain registration and no such action has been taken against you; (iv) the Domain has not been used in such a manner as to infringe the rights of any third party, including, but not limited to, trademark, naming or publicity rights; (v) the Domain is not the subject of any legal disputes or proceedings challenging your right to register or use the Domain; (vi) you will accurately describe the subject listing; (vii) you own and have the right to sell the content, if applicable, listed as part of your Domain; and (viii) if your offer to sell and transfer the Domain is accepted, you will complete the transaction with a ready, willing, and able Buyer. You will not, under any circumstances, list or transfer the rights to any Domain that you do not have sufficient rights to transfer, or that is illegal to transfer under applicable law.
(e) The Seller agrees not to list any Domains that violate DomainExchange.ca's Offensive Domain Name Policy, which is hereby incorporated by reference. DomainExchange.ca may refuse to list, or remove the listing for, any Domain which, in DomainExchange.ca's sole discretion, may potentially infringe or violate the proprietary rights of any third person or any other Domain, or which, in DomainExchange.ca's sole discretion, is inflammatory, offensive, inconsistent with DomainExchange.ca's general policies or Acceptable Use terms, or otherwise may infringe any proprietary right of any third party.
(f) The Seller of a Domain agrees not to enter a bid for his/her own offer and not to instruct other persons to do so. In addition, any user manipulation of Domain listing statistics is prohibited, including, but not limited to, manipulating or otherwise falsely inflating traffic statistics represented to Buyer during the course of negotiation or which are measured and displayed by DomainExchange.ca.
(g) You will not yourself, nor will you allow or enable another, to directly or indirectly interfere or attempt to interfere with the operations of the Site or the Services.
(h) You understand and agree that DomainExchange.ca's comment system cannot be used to communicate with the Buyer and/or Seller with the purpose of circumventing DomainExchange.ca's user agreement and/or to alter/augment sales of domains, commission, or alter the terms of the purchase and sale.
(i) The Seller agrees to keep any data they have added to the Domain Marketplace up-to-date. If a Domain has been sold, he/she is to immediately remove it from their User Account. Furthermore, the Seller agrees to remove a Domain from the Domain Marketplace and/or Auction immediately if a warning has been issued, or as soon as any notice or knowledge has been received that the rights of a third party or applicable laws could be violated by the listing. This shall apply until legal clarification of the situation has been made.
220.127.116.11. Rejected and/or Blocked Domain Listings
DomainExchange.ca reserves the right, at any time, to reject the listing of any Domains into our Domain Marketplace and/or Auction or to remove and blacklist Domain listings which have already been entered, without prior warning, without giving any reasons and at any time, especially in the case of User's violation of this Agreement, or suspected violation of rights of a third party concerning a Domain, or suspected violation of applicable laws.
5.2. Domain Transfer and Escrow Service
5.2.1. Description of Service
The Domain Transfer and Escrow Service offers Users DomainExchange.ca's assistance with the purchase and transfer of ownership of Domains. DomainExchange.ca acts here neither as a Buyer or Seller, nor as the representative of a Buyer or a Seller, nor as a broker. DomainExchange.ca acts as a secure technical and financial 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, DomainExchange.ca will release Buyer's funds and forward the purchase price to the Seller, less applicable fees.
Drafting of custom Purchase and Sale Agreements or any legal consultations on the part of DomainExchange.ca are not included in the Service and must be obtained from User's own legal representative. Please note that the Domain Transfer and Escrow 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 and Escrow Service and are not protected as such. 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 price and that once the Domain Transfer and Escrow Service is initiated, neither party will request cancellation due to a dispute over such.
5.2.2. Fees and Related Costs
The Domain Transfer and Escrow Service are provided for free to Buyers and Sellers conducting a purchase and sale on DomainExchange.ca's Domain Marketplace. For Users who wish to order the Domain Transfer and Escrow Service for transactions agreed upon outside the Domain Marketplace, the amount of the fee for the Domain Transfer and Escrow Service is specified on the DomainExchange.ca 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, further costs can be incurred, based upon the participating registry and registrar providers. 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 the next sixty (60) days from the time agreement was reached.
5.2.3. Management of Domain Transfer
18.104.22.168. 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, DomainExchange.ca 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.
22.214.171.124. Obligation of Buyer to Make Payment to Designated Escrow Account
After reaching agreement for the purchase and sale of a Domain, DomainExchange.ca shall contact the Buyer via email to request the transfer of the amount due to DomainExchange.ca's escrow account, where it will be safeguarded until transfer of Domain ownership has been completed. Upon said request, the Buyer is obligated to remit payment of the amount owed to DomainExchange.ca's escrow account.
126.96.36.199. Transfer of Domain
Once the full amount of the purchase price owed has been received by DomainExchange.ca's escrow account, the process of transferring ownership of the Domain from the former owner (the Seller) to the new owner (the Buyer) shall commence. DomainExchange.ca 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. DomainExchange.ca can only ensure the prompt and orderly transfer of Domain ownership if DomainExchange.ca'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 DomainExchange.ca. Failure to cooperate may be considered by the injured party as a material breach of the relevant purchase and sale agreement.
188.8.131.52.1. Quick Transfer
If during the transfer of a Domain the related Buyer is not responding for a reasonable amount of time to DomainExchange.ca's instructions after remitting payment, Buyer is authorizing DomainExchange.ca to effectuate a "quick" transfer. DomainExchange.ca may in that case at it sole discretion conduct domain pushes, which includes creating a domain registrar account on behalf of the Buyer, utilizing the contact information in the Buyer's User Account. Once the registrar account has been created, and the domain has been securely pushed from Seller's registrar account to the Buyer's registrar, DomainExchange.ca'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 DomainExchange.ca has not performed its duties under this User Agreement based solely on the fact that the domain is not at any specific domain registrar.
184.108.40.206. 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 DomainExchange.ca assumes temporary control of the Domain in an escrow capacity, then a successful transfer shall be considered to have been made at that moment in which DomainExchange.ca obtains control of the Domain and the Seller has lost control of this Domain.
If DomainExchange.ca assumes temporary control of the Domain, a Transfer Agent will instruct the Buyer to take over technical control. DomainExchange.ca shall not be held responsible for maintaining the Domain. If a Buyer does not take over technical control of a Domain within three (3) months after DomainExchange.ca took over temporary control of the Domain, DomainExchange.ca will not extend the Domain registration period. This may result in the lapse or expiration of the Domain. Buyer will not be compensated for this loss.
If, during the course of a bidding process in accordance with Section 5.1 above or the Domain Brokerage Service, the purchase and sale agreement has been concluded and the currency selected by the Seller or the currency assigned to the Seller is not identical to the agreed-upon currency, then the payment to the Seller shall be made in the currency he/she has selected or which has been assigned to him/her. The prevailing amount shall be the purchase price obtainedafter conversion and rounding work has been carried out in the currency selected by the Seller or the currency assigned to the Seller less any possible fee for the Domain Transfer and Escrow Service. In this case, the Seller shall not be entitled to demand the payment of the purchase price in another currency or to avail himself/herself of a different exchange rate than the fundamental exchange rate of DomainExchange.ca.
220.127.116.11. Unsuccessful Transfer and Repayment
In the event that the transfer of ownership is ultimately unsuccessful, the full payment submitted to DomainExchange.ca's escrow account shall be returned to the Buyer. There shall be considered to be no ultimate failure of the transfer if the unsuccessful transfer of the Domain or web project 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. As stated in Section 18.104.22.168 (Legal Relationship as Between DomainExchange.ca, Buyer and Seller), DomainExchange.ca will always use its best efforts to effectuate the purchase and sale of a Domain. If an agreement has been made over DomainExchange.ca's marketplace or auction platform between a Buyer and a Seller, absent new, material information presented to DomainExchange.ca, or unless the Buyer is claiming breach of contract or anticipatory breach of contract, DomainExchange.ca will move forward with a transaction. If DomainExchange.ca has received payment from the Buyer and the domain from the Seller, the domain will be forwarded to the Buyer and payment to the Seller accordingly. At that point, the aggrieved party, either Buyer or Seller, would have the right to initiate a legal process or proceeding against the other party. Both Buyer and Seller agree that DomainExchange.ca is not responsible or liable in any way for a transaction ending in this manner.
22.214.171.124. Publication Rights
DomainExchange.ca collects domain and sale price information for the purposes of utilizing the data to improve the Services and promote the value of domains to the public. While no personally identifiable information is included, the Buyer and Seller agree that DomainExchange.ca shall have the right to publish the name of a Domain sold as well as the respective purchase price on the Site or in other places for reference purposes. For sales occurring on the Domain Marketplace, this shall not apply if the Buyer or Seller objects to the publication, provided that objection must be received by DomainExchange.ca in writing before completion of the Domain transfer and escrow process. However, DomainExchange.ca will always publish and display a Domain name sale and the highest bid/selling price if the Domain was sold via Auction or with the support of a DomainExchange.ca domain broker. In an Auction, neither Buyer nor Seller may request that the Domain and details of the sale be withheld, but DomainExchange.ca will waive its publication rights for brokerage transactions if Buyer or Seller, whether represented by DomainExchange.ca or not, request and pay a fee equal to 2.5% of the sale price.
126.96.36.199. Proof of Purchase/Requests for Tax Information
DomainExchange.ca 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 DomainExchange.ca of this request as soon as an agreement has been reached between the Buyer and Seller. DomainExchange.ca will then communicate the request to the Seller. The Seller agrees that he/she will comply with such request if the request is promptly made at the beginning of the transfer.
5.2.4. Penalties for Failing to Perform Obligations
DomainExchange.ca reserves the right to cancel the escrow and transfer of domain ownership 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 DomainExchange.ca via the email addresses provided in his/her user account ("Failed Transfer").
In the case of a Failed Transfer, DomainExchange.ca reserves the right to collect any applicable commission fee 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 can 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. The Buyer and Seller agree that the injured party is entitled attorney's fees from the other should legal action be necessary to enforce rights pursuant to the purchase and sale agreement.
THE BUYER AND SELLER AGREE THAT THE INJURED PARTY IS ENTITLED ATTORNEY'S FEES FROM THE OTHER SHOULD LEGAL ACTION BE NECESSARY TO ENFORCE RIGHTS PURSUANT TO THE PURCHASE AND SALE AGREEMENT.
5.2.5. Dispute between the Parties during Transfer
In the event that the purchase price to be paid by the Buyer has been transferred to the DomainExchange.ca escrow account and the Domain and/or website content has been transferred to the Buyer in whole or in part, neither party may seek cancellation of said ownership transfer or payment. In the event that the parties become involved in a dispute at any time during the transfer and escrow process, DomainExchange.ca may set a reasonable deadline for the parties to reach an agreement. In the event that said deadline passes without a resolution, DomainExchange.ca 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.
BUYER AND SELLER AGREE THAT DOMAINEXCHANGE.CA SHALL NOT BE LIABLE FOR DETRIMENT OR DAMAGES ORIGINATING FROM A FAILED TRANSFER PROVIDED THAT SUCH CLAIMS ARE NOT BASED UPON THE INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF DOMAINEXCHANGE.CA, ITS STATUTORY REPRESENTATIVES OR VICARIOUS AGENTS.
This shall apply particularly in cases in which either the Buyer or Seller rejects the proper completion of transfer-related documents, impedes the execution of the transaction in another way, or in the case where one of the contractual parties cannot be properly identified due to providing incorrect or misleading contact information.
5.2.6. Disclaimer of Warranties by DomainExchange.ca
DomainExchange.ca shall dedicate itself to the secure transfer of ownership of a Domain and payment of the purchase price after an agreement has been reached between the Buyer and the Seller.
DOMAINEXCHANGE.CA IS NOT THE SELLER, AND AS SUCH, MAINTAINS NO DUTY TO VERIFY THAT THE DOMAIN NAME AND/OR INTERNET PROJECT 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.
The Buyer and Seller agree that the Domain Transfer and Escrow 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.
FAILURE TO PERFORM AN EXAMINATION OF THE DOMAIN NAME AND/OR INTERNET PROJECT 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.
6. Prohibited Conduct
As a condition of your use of the Services, you agree not to use them for any purpose that is unlawful or prohibited by this Agreement, any applicable local, provincial, federal, and international laws, government rules or other such requirements. Without limiting the generality of the foregoing, the following is a non-exhaustive list of actions that are not permitted when using the Services:
Uploading, posting or otherwise transmitting any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, slanderous, vulgar, obscene, libelous, invasive of anotherís privacy, hateful, embarrassing or racially, ethnically or otherwise objectionable;
Activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;
The impersonation of any person or entity, including, but not limited to, an employee of DomainExchange.ca or any of its affiliates, forum leader, guide, or host, or falsely state or otherwise misrepresent your affiliation with any person or entity;
Uploading, posting or otherwise transmitting any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Uploading, posting or otherwise transmitting any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
Uploading, posting or otherwise transmitting any unsolicited or unauthorized advertising, promotional materials, ìjunk mail,î ìspam,î ìchain letters,î ìpyramid schemes,î or any other form of solicitation, as determined by DomainExchange.ca in its sole discretion;
Uploading, posting or otherwise transmitting any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or engaging in activities that result in illegal access to other computers or networks, including those of DomainExchange.ca;
Stalking or otherwise harassing another;
Collecting or storing personal data about other users; or
Promoting or providing instructional information about illegal activities, promoting physical harm against any group or individual, or promoting any act of cruelty to animals.
We reserve the right to cancel or terminate your use of the Services if you engage in any of the activities described in this Section 14 or if your use of the Services results in, or is the subject of, legal action or threatened legal action against DomainExchange.ca or any of its affiliates or partners, regardless of whether such legal action or threatened legal action is determined to be with or without merit.
You agree that all of the following may be considered by us a material breach of your obligations under this Agreement:
Your failure to abide by any provision of this Agreement and any DomainExchange.ca operating rule or policy including, without limitation, the Domain Name Renewal, Deletion, Recovery Information, and Fees Policy, where applicable, and the Dispute Policy;
Your failure to pay any amounts due pursuant to this Agreement or any other written or online agreement with us for the Services;
Your willful provision of inaccurate or unreliable Contact Data as part of the application process;
Your failure to update your Contact Data so that it is current, complete and accurate; and
Your failure to respond for more than fifteen (15) calendar days to inquiries from us concerning the accuracy of the Contact Data associated with your domain name registration.
As expressly provided in other Sections of this Agreement.
8. Your Representations and Warranties
You represent, warrant and agree that:
To the best of your knowledge and belief, any information that you, or your agent acting on your behalf, provide to us during the application process to register your domain name or to apply for other Services is true, accurate, and complete, and that any future changes to this information will be provided to us in a timely manner according to the modification procedures in place at that time;
To the best of your knowledge and belief neither the registration of your domain name nor the manner in which you intend to use such domain name will directly or indirectly infringe or conflict with the legal rights of a third party, including their intellectual property rights;
If you are a legal entity, you have all requisite right, power, and authority to execute this Agreement and to perform your obligations hereunder and the person performing activities on the entityís behalf is so authorized to act on behalf of the entity;
If you are an individual, you are at least 18 years of age, or you have an agent who is at least 18 years of age enter into this Agreement on your behalf who agrees to be personally bound hereunder; and
You have selected the necessary security options for your domain name registration record.
You agree that your use of the Services is solely at your own risk. You agree that all of the Services are provided on an ìas isî and ìas availableî basis and that neither DomainExchange.ca nor any of its representatives makes any representation or warranty of any kind in connection with this Agreement or the provision of any Services to you.
9. Disclaimer of Warranties
DOMAINEXCHANGE.CA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED TO YOU ON AN ìAS ISî AND ìAS AVILABLEî BASIS. WE MAKE NO WARRANTY THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR .COM MAIL SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR .COM MAIL SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR .COM MAIL SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to release, indemnify, defend and hold harmless DomainExchange.ca, its parent, subsidiaries and affiliates and each of our and their respective employees, officers, directors, shareholders, affiliates, contractors, agents, successors and assigns (collectively, the ìDomainExchange.ca Partiesî) from any and all claims, actions, proceedings or demands and all liabilities, claims, damages, losses, costs and expenses, including reasonable attorneysí fees and expenses, of third parties, relating to or arising under this Agreement, the Services provided hereunder, your domain name registration, or your use of the Services, including without limitation (i) infringement of or dilution by you, or someone else using our Services from your computer or on your behalf, of any intellectual property or other proprietary right of any person or entity; (ii) your failure to perform any of your obligations to us or others relating to the Services; or (iii) a violation of the terms of this Agreement or of policies and procedures incorporated herein or relating to the Services provided. If we are threatened with lawsuit or are sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide such assurances may be considered by us to be a material breach of this Agreement providing us any and all remedies provided herein. You agree to notify DomainExchange.ca of any such claim promptly in writing. DomainExchange.ca, should it so desire, participate fully in the defense of any such claim, including through counsel of its own choosing or by taking control of the proceedings, and you agree to cooperate fully with DomainExchange.ca during such proceedings. You further agree you will not be entitled to a refund of any fees paid to DomainExchange.ca if, for any reason, DomainExchange.ca takes corrective action with respect to your improper or illegal use of its Services.
11. Exclusive Remedy
You agree that our entire liability, and your exclusive remedy in law, in equity, or otherwise with respect to any Services provided under this Agreement and/or for any breach by DomainExchange.ca, or by its employees, of this Agreement is limited solely to the amount you paid for such Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY DOMAINEXCHANGE.CA PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS OR THE COST OF PROCURMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY OF THE SERVICES, EVEN IF DOMAINEXCHANGE.CA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Without limiting the generality of the foregoing, you agree that we are not responsible for, and we specifically disclaim, any:
Loss or liability resulting from access delays or access interruptions;
Loss or liability resulting from data non-delivery or data mis-delivery;
Loss or liability resulting from acts of God;
Loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option;
Loss or liability resulting from errors, omissions, or misstatements in any and all information or Services provided under this Agreement;
Loss or liability relating to the deletion of or failure to deliver or store e-mail messages;
Loss or liability resulting from the disrupted development or interruption of your website;
Loss or liability from inaccessibility of our .com mail service;
Loss or liability that you may incur in connection with our processing of your application for the Services, our processing of any authorized modification to your domain name record or your agentís failure to pay any fees, including the initial registration fee or re-registration fee; or
Loss or liability as a result of the application of our Dispute Policy.
12. Termination by You
Where expressly permitted by another Section of this Agreement, you may terminate this Agreement by contacting us as set forth on https://www.DomainExchange.ca.com/contact
Your termination will become effective once we receive your notice and process your request, provided that all outstanding fees and expenses owed by you are paid in full. Upon termination, any fees pre-paid by you are nonrefundable, but you will not incur additional fees, unless they reflect or result from any unpaid Services or a delinquent account.
13. Termination by Us
We may terminate your contractual right to use the Services where expressly permitted by another Section of this Agreement or in the event of a breach set forth in Section 15. You agree that we also may terminate your contractual right to use our Services if the information that you are obligated to provide to list your domain name or use other DomainExchange.ca Services, or that you subsequently modify, contains false or misleading information, or conceals or omits any information we would likely consider material to our decision to register your domain name or to continue to provide you with domain name registration services.
DomainExchange.ca expressly reserves the right to deny, cancel or remove any listing that it deems necessary, in its discretion, to protect the integrity and stability of the listing, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of DomainExchange.ca, as well as its affiliates, subsidiaries, officers, directors and employees.
14. Right of Refusal
We, in our sole discretion, reserve the right to refuse to register you for Services, to list a domain name, or to continue supporting an existing registration, for any reason, including your failure to comply with the terms of this Agreement. In the event we refuse to list your domain name or continue to support an existing listing, we will not issue a refund for any applicable fees you have paid. We will inform you that DomainExchange.ca refuses to provide you the Service. You agree that we shall not be liable to you for loss or damages that may result from our refusal to list, or our removal of, your domain name or from our refusal to register you for Services.
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