This Domain Name Reseller Agreement (“Agreement”) is a legal agreement by and between you, as you have identified yourself in your account information (“You” or “Your”) and UPFLARE ONLINE, Inc. (“UPFLARE ONLINE”). You warrant that the information You provide in Your account with UPFLARE ONLINE (“Your Account”) is accurate and that You will keep it updated. The terms and conditions of this Agreement are effective (i) seven (7) days after we notify You of this Agreement, unless You send us written notice during such period that You do not agree to be bound by the terms and conditions of this Agreement; or (ii) immediately upon Your express consent to the terms and conditions of this Agreement (“Effective Date”).
1. Premium Domain Service
Subject to the terms and conditions of this Agreement and solely in accordance with instructions provided by UPFLARE ONLINE, UPFLARE ONLINE grants You a non-exclusive, non-transferable, non-sublicensable license to sell premium domain names through Your Instant Reseller site via the UPFLARE ONLINE premium domain name sales service (“Premium Domain Service”). In addition to the terms of this Agreement, you agree to the UPFLARE ONLINE Premium Listing Term of Services.
For each domain name sold by You from your Instant Reseller site through the Premium Domain Service, UPFLARE ONLINE will pay You a commission of forty percent (40%) of the gross revenues UPFLARE ONLINE receives for the sale of such domain name. When You have a balance greater than twenty-five dollars (U.S. $25.00) in commissions which have aged more than ninety (90) days, You will be able to have Your commissions transferred to Your Account balance, sent to You via a check deposited in the U.S. mail or via direct deposit, when and if direct deposit becomes available. Commissions will be reported through Your Account in Your available commission balance. UPFLARE ONLINE will only pay You commissions for the sale of domain names through the Premium Domain Service for which UPFLARE ONLINE collects revenues. If a payment is made to You by UPFLARE ONLINE under this Agreement and UPFLARE ONLINE is subsequently denied payment for the sale of any applicable domain name(s), UPFLARE ONLINE will be entitled to prompt repayment of any such amount through either (i) Your direct repayment to UPFLARE ONLINE; or (ii) UPFLARE ONLINE’s reduction of future payments to You. Additionally, in accordance with the preceding sentence, UPFLARE ONLINE will be entitled to prompt repayment of any amounts paid to You if UPFLARE ONLINE reasonably believes, in its sole discretion, that You have engaged in any fraudulent activity in connection with the Premium Domain Service or if UPFLARE ONLINE believes You have breached any of Your representations under this Agreement, or violated any of the terms of this Agreement.
3. Domain Name Transactions
a. With respect to the Premium Domain Service, UPFLARE ONLINE has no control over the accuracy, quality or legality of advertised domain names, the truth or the accuracy of the listings, the right and the ability of the listed seller to transfer the domain name or the ability of a buyer to consummate a transaction. UPFLARE ONLINE cannot and does not control whether or not third-party seller(s) or buyer(s) will complete a transaction. Additional risks arise out of dealings with foreign nationals, underage persons or people acting under false pretense or making deceitful representations, all of which are borne solely by the buyer or seller, as appropriate. UPFLARE ONLINE does not confirm that users who access Your website are who they claim to be. UPFLARE ONLINE encourages You to exercise reasonable, safe business practices as You would in any other commercial activity. b. You may not purchase or offer to purchase through the Premium Domain Service any domain name that You have listed for sale, either under Your own name, an alias, or any entity in which You maintain a controlling interest.
4. Term and Termination
a. The term of this Agreement is from the Effective Date for a period of one (1) year. Thereafter, this Agreement will renew for a successive one (1) year terms. Upon at least thirty (30) days written notice (including notice via email), either party may terminate this Agreement. UPFLARE ONLINE also retains the right to terminate this Agreement immediately if UPFLARE ONLINE determines, in its sole discretion, that You have failed to comply with any term or condition of this Agreement, or that Your use of the Premium Domain Service presents an unreasonable risk of harm to UPFLARE ONLINE or its affiliates, the Premium Domain Service, other users, or members of the general public. b. In the event of termination of this Agreement for any reason, all terms of this Agreement which, by their nature, extend beyond its termination shall remain in effect until fulfilled and shall apply to respective successors and assigns. Neither party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement according with its terms.
5. Intellectual Property
UPFLARE ONLINE or its licensor holds all rights, title and interest in the Premium Domain Service and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such intellectual property rights is being transferred to You and You agree to make no claim of interest in any such Premium Domain Service.
6. Disclaimer of Warranties.
UPFLARE ONLINE PROVIDES THE PREMIUM DOMAIN SERVICE “AS IS” AND “AS AVAILABLE. UPFLARE ONLINE MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PREMIUM DOMAIN SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UPFLARE ONLINE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. Some jurisdictions do not allow limitations on implied warranties, and therefore, some of the above limitations may not apply to You.
You, at Your own expense, will indemnify, defend and hold harmless UPFLARE ONLINE and its employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding based on or arising from any claim or alleged claim (i) arising from a breach by You of any covenant, representation or warranty in this Agreement; (ii) relating to Your use of the Premium Domain Service; (iii) Your violation of any applicable law, or the rights of another person or party; or (iv) arising from one of Your website user’s purchase or an attempted purchase of a domain name through the Premium Domain Service. You shall not enter into any settlement or compromise of any such indemnifiable claim without UPFLARE ONLINE’s prior written consent, which consent shall not be unreasonably withheld. You shall pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by UPFLARE ONLINE in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
8. Limitation of Liability.
EXCEPT WITH RESPECT TO YOUR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES, OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
9. Independent Contractors.
The parties to this Agreement are independent contractors and have no right or authority to bind or commit the other party in any way without the other party’s express written authorization to do so. This Agreement does not create an employer/employee, joint venture, partnership, or agency relationship between the parties.
You must not assign, transfer, or otherwise dispose of this Agreement or any of Your rights, benefits, or interests under this Agreement without prior written consent of UPFLARE ONLINE, and any such assignment in violation of this Section shall be void. UPFLARE ONLINE may assign this Agreement to a party which acquires the assets of UPFLARE ONLINE which relate to performance of this Agreement. UPFLARE ONLINE may assign all or part of its rights and obligations under this Agreement to its parent corporation, to a subsidiary, to its survivor in connection with a corporate reorganization, to any entity acquiring all or substantially all of its property, or to any entity into which it is merged or consolidated. No assignment of this Agreement shall operate to discharge the assignor of any duty or obligations hereunder without prior written consent.
Each party shall be responsible for and pay its own import duties, levies or imposts, value added, sales taxes, use taxes and any other taxes imposed by any jurisdiction as a result of (a) entry into this Agreement (b) the performance of any of the provisions of this Agreement or (c) the transfer of any property, rights or any other grant hereunder.
12. Force Majeure.
Neither party shall be in default or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with terms of this Agreement (other than the obligation to make payments, which shall not be affected by this provision) due to any causes beyond its reasonable control, which causes include but are not limited to Acts of God or the public enemy; riots and insurrections; war; fire; strikes and other labor difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, components or machinery; acts of civil or military authorities; failure of telecommunications; or other casualty.
The terms and conditions of this Agreement may be modified from time to time by UPFLARE ONLINE. Such modifications become effective (i) thirty (30) days after we notify You of the modifications; or (ii) immediately upon Your express consent to the revised terms, and are effective from that date forward. If You do not agree to the terms and conditions of this Agreement as modified, You may send us a cancellation notice and You will remain subject to the unmodified terms and conditions of this Agreement for the remainder of the current term of the Agreement, after which Your Agreement will terminate.
14. Governing Law and Arbitration.
This Agreement shall be governed by the laws of the United States of America and the State of Washington, as if this Agreement was a contract wholly entered into and wholly performed within the State of Washington. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be determined by arbitration in King County, Washington, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between You and UPFLARE ONLINE with respect to the Premium Domain Service, and supersedes and governs all prior proposals, agreements, or other communications with respect to the Premium Domain Service and is not intended to confer upon any person or entity other than UPFLARE ONLINE and You any rights or remedies hereunder. The failure of UPFLARE ONLINE 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 us of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement. 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. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.