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This Domain Name Bidding and Registration Agreement
("Agreement") sets forth the terms
and conditions for placing domain name bids through
NameWinner.com (“NameWinner”) (operated
by Dotster, Inc.) and registrations through partner
registrars, including, but not limited to, Dotster,
Inc. (dotster.com) (collectively “Registrars”).
Hereinafter, "you" and "your" shall
refer to each customer, "we," "us," and "our" shall
refer to Registrars and "Service" shall
refer to domain names registration provided by
us. To complete the registration process, you
must acknowledge that you have read, understood,
and agree to be bound by all terms and conditions
of this Agreement and any registration rules
or policies that are or may be published from
time to time by Registrars, the Internet Corporation
for Assigned Names and Numbers ("ICANN")
and/or the Registry Administrators, and any other
companies operating the respective registry (Registry).
Submission of your domain name registration constitutes
acceptance of all the terms and conditions contained
and referenced herein.
This Agreement will become effective when accepted
by NameWinner at its offices located at 11807
N.E. 99th Street, Suite 1100, Vancouver, WA 98682.
Registrars may elect to accept or reject your
domain name registration application for any
reason at its sole discretion, such rejection
including, but not limited to, rejection due
to a request for registration of a prohibited
domain name.
1. Our Services:
1.1 Registrars are ICANN accredited domain name
registrars for entities applying to register
a domain name under biz, .com, info, .net, and
.org Top Level Domains ("TLD"s). NameWinner
provides a name search-and-finding service provided
through a bidding process as per rules found
on the NameWinner site, located at URL www.namewinner.com.
Once a requested name is found to be available,
the winning Registrar shall register the domain
name on behalf of a NameWinner client according
to Registrar’s domain registration agreement
terms. According to the terms and conditions
of our agreement with the Accredited ICANN Registrar,
your acceptance of these terms and conditions
constitutes acceptance of changes that may be
made to this agreement as necessary to comply
with NameWinner’s agreement with the Accredited
ICANN Accredited Registrar or any other business
purpose. All domain name registrations for biz,
.com, info .net and .org are not effective until
we have delivered the domain name registration
information you provide us to the registry administrator
for the .com, .net, org and .biz TLDs, as applicable,
and the registry administrator(s) put into effect
your domain name registration.
1.2 You agree and acknowledge that NameWinner,
and its agents and employees, are not liable
or responsible in any way for any errors, omissions
or any other actions by NameWinner and the Registry
Administrator(s) arising out of or related to
your application and receipt of, or failure to
receive, a domain name registration. You further
agree to indemnify, defend and hold harmless
the Registrars, Registry Administrator(s) and
their directors, officers, employees, and agents
from and against any and all claims, damages,
liabilities, costs, and expenses (including reasonable
legal fees and expenses) arising out of, or related
to, your domain name registration.
2. Fees:
2.1 As consideration for the a successful find
provided through NameWinner and registration
provided by the winning Registrar, you agree
to pay NameWinner, prior to the effectiveness
of the desired domain name the bid price as a
finder’s fee, plus all applicable initial
registration fees. There will be no charge to
you for placing a bid until NameWinner is successful
in finding and registering the domain name on
your behalf. All fees are non-refundable. NameWinner
reserves the right to change registration fees,
surcharges, and renewal fees or to institute
new fees at any time, for any reason, at its
sole discretion.
2.2 Your requested domain name will not be registered
until NameWinner receives actual payment of the
bid amount and registration fees for at least
one year as applicable.
2.3 If your domain name is picked and successfully registered, we will
charge the full bid amount plus registration fees that will become due, to
your credit card without further notice to you. You will be notified of the
successful registration immediately after the registration is completed. In
the event of a charge-back or unsuccessful attempt to charge your credit
card for the fees owed, ownership of the domain name registered shall
immediately revert back to the winning Registrar or NameWinner (at
NameWinner's discretion) as the paying party for the domain name. NameWinner
or the winning Registrar may, at its option, allow the domain name to expire
at the end of the registration term, auction the name to the public, or
resell the domain name to the general public on a first-come-first-serve
basis, at NameWinner/Registrar's regular listed domain name registration
price at the time of the sell (plus any administrative costs), as listed on
NameWinner/Registrar's website (mentioned above and available upon request).
3. Registration Agreements of Registrars
3.1 This agreement and your continued use of
your domain name subject you to the policies
of the winning Registrar of your domain name
registration (available upon request), posted
on their respective website or incorporated in
their correspondence with you, in addition to
the terms of this agreement.
4. Dispute Policy
4.1 If successfully registered, you agree to
be bound by the appropriate Domain Name Dispute
Policy ("Dispute Policy(ies)"), which
are hereby incorporated and made a part of this
Agreement by reference. The Dispute Policy(ies)
can be found at the Registrar’s website
and include: http://www.dotster.com/disputepolicy.html
(Dotster) and http://www.icann.org/udrp/udrp-policy-24oct99.htm
(ICANN). These policy(ies) have been developed
by ICANN and/or the specific Registration Administrator(s)
and are a required component of every registration
agreement. Certain disputes, as specified in
the Dispute Policy(ies), are subject to that
Policy. You agree that you will be subject to
the provisions specified in the Dispute Policy(ies)
in effect at the time your domain name registration
is disputed by a third party, in the event such
dispute arises. You also agree that, in the event
a domain name dispute arises with any third party,
you will indemnify and hold NameWinner/Registrars
harmless pursuant to the terms and conditions
contained in the Dispute Policy(ies). Registrars
may modify the Dispute Policy(ies) at their sole
discretion at any time. Your continued use of
the domain name registered to you after any such
Dispute Policy modification shall constitute
your acceptance of this Agreement and the modified
Dispute Policy(ies). If you do not agree to any
of such changes, you may request that your domain
name registration be cancelled or transferred
to a different domain name registrar. You agree
that such cancellation or request for transfer
will be your exclusive remedy if you do not wish
to abide by any changes to this Agreement or
the Dispute Policy(ies).
5. Change of Ownership
5.1 The domain name may be transferred after registration if successful
in compliance with any agreements/terms of service in place. The entity
named as the authorized contact at the time the controlling user name
and password are secured shall be the owner of the domain name. You agree
that prior to the effectiveness of any transfer of ownership of your domain
name to another entity, you will pay Registrar the then-current amount
set forth by Registrar for the transfer of ownership of a domain name.
You further agree that as a condition of any such transfer of ownership
of your domain name, the entity to which you seek to transfer your domain
name shall agree in writing to be bound by all terms and conditions of
this Agreement. Your domain name will not be transferred until we receive
such written assurances, and actual payment of the transfer fee, or reasonable
assurance of payment of the transfer fee from some other entity (such
reasonable assurance as determined by Registrar in its sole discretion).
You acknowledge and agree that if you attempt to transfer your domain
name registration without paying Registrar the then-current amount set
by Registrar for the transfer of ownership of a domain name, or if the
entity to which you seek to transfer your domain name fails to agree in
writing to be bound by all terms and conditions of this Agreement, any
such transfer will be null and void, and will result in your domain name
registration being revoked without a refund of any charges you have incurred
in attempting to register or transfer that domain name.
5.2 Expired Domain Transfer ("ED Transfers"). An ED Transfer
is a transfer to you from a Registrar of a domain name that has not been
deleted by the Registry. If you are bidding on an expiring domain name,
you understand that if the domain is renewed by the original owner, it
will be taken out of the auction and bidding ends. If bidding completes
and your are awarded the opportunity to register the domain, if the domain
has not been deleted by the Registry, you acknowledge and agree that the
term of your registration will be for a period of one year from the original
expiration date for the
domain name immediately prior to your purchase. Therefore, the term of
your registration will be for less than a year from the time of your purchase.
You will not be compensated for the inability to use the domain from the
time it was expired until the time you are able to use the domain in your
account at the current Registrar. NOTE: Your rights to the domain name
are
non-transferable to any person nor Registrar for the first eighty (80)
days
of registration from the date the domain expired, prior to purchase, without
notice, at the current Registrar's discretion. In addition, it is your
responsibility to verify if any domain is infringing anyone else's rights,
prior to registration. If the domain name you have registered is found
to be
infringing on another person's rights, based solely on Registrar's
discretion, Registrar has the right to cancel your registration immediately.
If your rights are terminated, your sole remedy will be limited to a refund
of the price paid to us for the domain name. If it is a willful violation
of
our agreement, you will not be entitled to any refund. WE WILL NOT BE
RESPONSIBLE OR LIABLE FOR ANY COSTS ASSOCIATED WITH THE TERMINATION OF
YOUR
RIGHTS TO THE DOMAIN NAME. YOU AGREE TO INDEMNIFY US FOR ANY ACTION
COMMENCED BECAUSE OF YOUR FAILURE TO FOLLOW THE TERMS OF THIS AGREEMENT
AND INFORM AND VERIFY THE ACCEPTANCE OF THIS AGREEMENT BY OTHER USERS
OF THE
DOMAIN.
6. Transfer to Another Registrar
6.1 You agree that if your domain is successfully
registered, you may not transfer your domain
name registration to another domain name registrar
during the first sixty (60) days from the effective
date of your initial domain name registration
with Registrar. You agree to provide written
authorization to Registrar for the transfer of
the domain name to another registrar and agree
to pay any and all fees that may be charged by
Registrar to effect the transfer. Your request
to transfer to another registrar may be denied
in situations described in the Dispute Policy,
including, but not limited to: a dispute over
the identity of the domain name holder; bankruptcy;
and default in the payment of any fees.
7. Required Domain Name Registration Information
and Its Use
7.1 You are required to submit and keep current
the following information, as part of the registration
process. This information must be current, complete
and accurate.
a. Your name and postal address (or if different,
that of the domain name holder);
b. The domain name being registered;
c. The name, postal address, e-mail address,
voice telephone number, and where available,
fax number of the administrative contact for
the domain name; and
d. The name, postal address, e-mail address,
voice telephone number, and where available,
fax number of the billing contact for the domain
name.
7.2 Upon renewal of your domain name registration,
the type of information you are required to provide
may have changed. If you do not wish to provide
the new required information, you agree and acknowledge
that your registration may not be renewed.
7.3 All other information, which we may request
from you at registration, is voluntary. However,
not providing this information may prevent you
from obtaining all products and services made
available to domain name registrants by us, other
than registration of the domain name.
7.4 Registrar maintains additional information
relating to your domain name registration. This
information may include:
a. The original creation date of the registration;
b. The submission date and time of the registration
application to us and by us to the proper registry;
c. Communications (electronic or paper form)
constituting registration orders, modifications,
or terminations and related correspondence between
you and us;
d. Records of account for your domain name registration,
including dates and amounts of all payments and
refunds;
e. The IP addresses of the primary nameserver
and any secondary nameservers for the domain
name; the corresponding names of those nameservers;
f. The name, postal address, e-mail address,
voice telephone number, and where available,
fax number of the technical contact for the domain
name;
g. The name, postal address, e-mail address,
voice telephone number, and where available,
fax number of the zone contact for the domain
name;
h. The expiration date of the registration;
i. Information regarding all other activity between
you and us regarding your domain name registration
and related services.
7.5 In the event that, in registering the domain
name, you are providing information about a third
party, you hereby represent that you have (a)
provided notice to that third party of the disclosure
and use of that party’s information as
set forth in this Agreement, and (b) that you
have obtained that third party's express consent
to the disclosure and use of that party's information
as set forth in this Agreement.
7.6 You acknowledge that willfully providing
inaccurate information or willfully failing to
update information promptly will constitute a
material breach of this Agreement and will be
sufficient basis for cancellation of your domain
name registration. You further agree that your
failure to respond for over fifteen (15) calendar
days to inquiries by Registrar, concerning the
accuracy of contact details associated with your
registration shall constitute a material breach
of this Agreement and will be sufficient basis
for cancellation of your domain name registration.
7.7 You agree and acknowledge that Registrar
will make available domain name registration
information you provide or that we otherwise
maintain to ICANN, to the Registry Administrator(s).
Registrar has established an agreement, license
or contract for the domain name registration
services, and to other third parties as ICANN,
the Registry Administrator(s), and applicable
laws may require or permit. You further agree
and acknowledge that Registrar, may make publicly
available, or directly available to third party
vendors, some, or all, of the domain name registration
information you provide, for purposes of inspection
or for targeted marketing and other purposes
as required or permitted by ICANN, the Registry
Administrator(s), and applicable laws.
7.8 Additionally, you acknowledge that ICANN
and the Registry Administrator(s) may establish
guidelines, limits and/or requirements that relate
to the amount and type of information that Registrar
may or must make available to the public or to
private entities, and the manner in which such
information is made available.
7.9 You hereby consent to any and all such disclosures
and use of, and guidelines, limits and restrictions
on disclosure or use of, information provided
by you in connection with the registration of
a domain name (including any updates to such
information), whether during or after the term
of your registration of the domain name. You
hereby irrevocably waive any and all claims and
causes of action you may have arising from such
disclosure or use of your domain name registration
information by Registrar.
7.10 Registrar will not process data about any
identified or identifiable natural person that
we obtain from you in a way incompatible with
the purposes and other limitations described
in this Agreement.
7.11 Registrar will take reasonable precautions
to protect the information it obtains from you
from our loss, misuse, unauthorized access; or
disclosure, alteration or destruction of that
information.
8. Ownership of Data
8.1 You agree and acknowledge that Registrar
owns all database, compilation, collective and
similar rights, title and interests worldwide
in our domain name database, and all information
and derivative works generated from the domain
name database. You further agree and acknowledge
that Registrar owns the following information
for those registrations for which we act as the
registrar: (a) the original creation date of
the registration, (b) the expiration date of
the registration, (c) the name, postal address,
e-mail address, voice telephone number, and where
available fax number of the technical contact,
authorized contact, zone contact and billing
contact for the domain name registration, (d)
any remarks concerning the registered domain
name that appear or should appear in the WHOIS
or similar database, and (e) any other information
Registrar generates or obtains in connection
with the provision of domain name registration
services, other than the domain name being registered,
the Internet protocol (IP) addresses of the primary
nameserver and any secondary nameservers for
the domain name, and the corresponding names
of those nameservers. Registrar does not have
any ownership interest in your specific personal
registration information outside of its rights
in our domain name database.
9. Agents and Licenses
9.1 You agree that, if you are registering a
domain name 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 Dispute Policy.
9.2 You agree that if you license the use of
the domain name registered to you to a third
party, you nonetheless remain the domain name
holder of record, and remain responsible for
all obligations under this Agreement, including
but not limited to payment obligations, and providing
(and updating, as necessary) both your own full
contact information, and accurate technical,
authorized, billing and zone contact information
adequate to facilitate timely resolution of any
problems that arise in connection with the domain
name and domain name registration.
10. Restrictions
10.1 Registrations in the .biz TLD will be subject
to the following restrictions:
a. Registrations in the .biz TLD must be used
or intended to be used primarily for bona fide
business or commercial purposes; and
b. Registrations in the .biz TLD must comply
with the Uniform Dispute Resolution Policy ("UDRP"),
as adopted and as may be amended by the Internet
Corporation of Assigned Names and Numbers. For
proceedings initiated before the Commencement-of-Service
Date, a modified version of the UDRP, known as
the Start-Up Uniform Dispute Resolution Policy
("SUDRP") (which also includes corresponding
modifications to the Rules for Uniform Domain
Name Resolution Policy) will apply.
10.2 For purposes of the .biz Registration Restrictions
("Restrictions"), "bona fide business
or commercial use" shall mean the bona fide
use or bona fide intent to use the domain name
or any content, software, materials, graphics
or other information thereon, to permit Internet
users to access one or more host computers through
the DNS:
a. To exchange goods, services, or property
of any kind;
b. In the ordinary course of trade or business;
or
c. To facilitate (i) the exchange of goods,
services, information, or property of any kind;
or, (ii) the ordinary course of trade or business.
10.3 Registering a domain name solely for the
purposes of (1) selling, trading or leasing the
domain name for compensation, or (2) the unsolicited
offering to sell, trade or lease the domain name
for compensation shall not constitute a "bona
fide business or commercial use" of that
name.
11. Limitation of Liability
11.1 YOU AGREE THAT NAMEWINNER/REGISTRARS WILL
NOT BE LIABLE FOR ANY (a) SUSPENSION OR LOSS
OF THE DOMAIN NAME REGISTRATION IN YOUR NAME,
(b) USE OF YOUR DOMAIN NAME REGISTRATION BY YOU
OR OTHERS, WHETHER OR NOT AUTHORIZED BY YOU TO
HAVE SUCH USE, (c) INTERRUPTION OF BUSINESS,
(d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO
THIS SITE OR THE WEB SITE(S) YOU ACCESS BY THE
DOMAIN NAME REGISTERED IN YOUR NAME; (e) DATA
NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION
OR OTHER MODIFICATION; (f) EVENTS OUT OF NAMEWINNER/REGISTRAR”S
REASONABLE CONTROL; (g) THE PROCESSING OF THIS
APPLICATION; OR (h) APPLICATION OF THE DISPUTE
POLICY. NAMEWINNER/REGISTRARS ALSO WILL NOT BE
LIABLE 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),
BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED,
OR OTHERWISE, EVEN IF NAMEWINNER/REGISTRAR HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES MAY NOT ALLOW SUCH A BROAD EXCLUSION
OR LIMITATION OF LIABILITY FOR DAMAGES, AS CONTAINED
HEREIN; IN SUCH STATES, OUR LIABILITY IS LIMITED
TO THE FULL EXTENT PERMITTED BY LAW. IN NO EVENT
SHALL NAMEWINNER/REGISTRARS’ MAXIMUM AGGREGATE
LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU
FOR REGISTRATION OF A DOMAIN NAME.
12. Indemnification
12.1 You agree to defend, indemnify and hold
harmless NameWinner, Registrars, registry administrator(s),
and their respective directors, officers, employees
and agents, from and against any and all claims
for any loss, damages or costs, including reasonable
attorneys’ fees, resulting from any third
party claim, action, or demand related to the
registration or use of the domain name registered
in your name. This indemnification is in addition
to any indemnification required under the Dispute
Policy.
13. Representations and Warranties
13.1 You represent that, to the best of your
knowledge and belief that the registration of
neither the domain name nor the manner in which
it is directly or indirectly used infringes the
legal rights of a third party. You further represent
and warrant that all information provided by
you in connection with your domain name registration
is accurate.
13.2 ALL DOMAIN NAME REGISTRATION SERVICES ARE PROVIDED TO YOU "AS
IS." EXCEPT FOR OUR STATEMENT REGARDING OUR AGREEMENT WITH AN ACCREDITED
ICANN-APPROVED DOMAIN NAME REGISTRAR IN THE INTRODUCTORY PARAGRAPH OF
THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR ITS DOMAIN NAME
REGISTRATION SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES
ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, NAMEWINNER/REGISTRARS
MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT THE
BIDDING PROCESS, REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT
WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR WINNING BID OR DOMAIN
NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE
DOMAIN NAME REGISTERED TO YOU.
14. Breach and Revocation
14.1 NameWinner/Registrars reserve the right
to suspend, cancel, transfer or modify your domain
name registration in the event (a) you materially
breach this Agreement (including the Dispute
Policy) and do not cure such breach within thirty
(30) days of notice by Namewinner/Registrars
(b) you use the domain name registered to you
to send unsolicited commercial advertisements
in contradiction to either applicable laws or
customary acceptable usage policies of the Internet,
(c) you use your domain name in connection with
unlawful activity, or (d) grounds arise for such
suspension, cancellation, transfer or other modification
as provided for in this Agreement.
14.2 You further acknowledge and agree that
your registration of a domain name is subject
to suspension, cancellation or transfer by any
ICANN procedure, by any ICANN accredited registrar
or any ICANN accredited registrar or registry
administrator(s) procedures approved by an ICANN-adopted
policy, or by any other TLD registry administrator
procedures as the case may be, (a) to correct
mistakes of NameWinner, registrars or the registry
administrator in administering the name or (b)
for the resolution of disputes concerning the
domain name.
14.3 You also agree that winning Registrars
shall have the right in its sole discretion to
suspend, cancel, transfer or otherwise modify
a domain name registration upon seven (7) calendar
days prior written notice and after such time
as NameWinner/Registrars receive a properly authenticated
order from a court of competent jurisdiction,
or arbitration award, requiring the suspension,
cancellation, transfer or modification of the
domain name registration.
14.4 Registrars will abide by any ICANN or Registry
Administrator (s) adopted policy prohibiting
or restricting warehousing of or speculation
in domain names by registrars. Registrars reserve
the right to refuse to register multiple domain
name registrations.
15. Governing Law
15.1 Except as otherwise set forth in the Dispute
Policy with respect to disputes, this Agreement,
your rights and obligations and all actions contemplated
by this Agreement shall be governed by the laws
of United States of America, State of Washington,
as if the Agreement was a contract wholly entered
into and wholly performed within state of Washington
and laws of the Registrar's domicile. Except
as otherwise set forth in the Dispute Policy(ies)
with respect to disputes, any action to enforce
this Agreement or any matter relating to your
use of the NameWinner/ Registrars site shall
be brought exclusively in Washington State, respective
domicile of Registrar, or in accordance with
Registrar’s Registration Agreement.
16. Notices
16.1 You agree that any notices required to
be given under this Agreement to you will be
deemed to have been given if delivered in accordance
with the contact information you have provided.
17. General
17.1 This Agreement and the Dispute Policy(ies),
together with all modifications, constitute the
complete and exclusive agreement between you
and NameWinner, and supersede and govern all
prior proposals, agreements, or other communications.
17.2 Namewinner may amend/modify this agreement
at any time. Your continued use of this website
asserts your acceptance of this agreement and
its terms as amended/modified.
17.3 Nothing contained in this Agreement shall
be construed as creating any agency, partnership,
or other form of joint enterprise between the
parties. The failure of NameWinner/Registrar
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 NameWinner/Registrar 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. NameWinner/Registrars 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 NameWinner/Registrars, as reflected in the
original provision. This Agreement may not be
amended or modified by you except by means of
a written document signed by both you and an
authorized representative of NameWinner.
(August 6, 2003 version)
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