Terms of Service
This Domain Parking Services Agreement (the "Agreement") shall govern the terms and conditions of the Domain Parking Service (the "Service"), as defined hereafter, offered by DomainAdvertising.com
By registering or enrolling for, or using this Service, or executing this Agreement on this day (the "TERMS AND DEFINITIONS"), You (the "Publisher" or "You") agree that:
- YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND
- YOU AGREE AND CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (AS MAY BE AMENDED FROM TIME TO TIME BY DOMAINADVERTISING.COM IN ITS SOLE AND ABSOLUTE DISCRETION) AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
DomainAdvertising.com and the Publisher may be referred to individually as a "Party" and collectively as the "Parties", and shall include agents, successors, heirs or assigns thereof.
- DomainAdvertising.com provides the Service to domain owners under the terms of this Agreement;
- You, the Publisher have domain names that you own and/or control and/or operate, and do not infringe, in any way, upon the copyright, trademark and/or intellectual property rights of any third party individual or entity; and
- You, the Publisher desire to use the Service, under the terms of this Agreement, for the domain names that you control, own and/or operate;
The Parties therefore, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, intending to be legally bound, hereby agree as follows:
TERMS AND DEFINITIONS
- "Confidential Information" shall mean all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementation, documentation, functional and interface specifications, customer, pricing, marketing and/or other information related to the subject matter of this Agreement provided by DomainAdvertising.com to you under this Agreement, whether written, transmitted, oral, through either DomainAdvertising.com's Websites or otherwise, that is marked as Confidential, and all information that is made available in the Control Panel, including but not limited to any revenue information provided and terms of service.
- "Content" shall include advertisements, hyperlinks, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted, on anything that DomainAdvertising.com hosts including, but, not limited to the website or any domain name, name server, or IP address that is hosted by DomainAdvertising.com .
- "Control Panel" shall mean the web based interfaces provided to You to view and manage the Services provided under this Agreement.
- "Domain Parking Service" or "Service" shall mean the domain name and/or traffic management service offered to the Publisher under the terms of this Agreement which allows the Publisher to generate earnings from their Parked Domains.
- "End User" shall means a visitor to one of Publisher's Parked Domains
- "Parked Domain" shall mean a domain name that:
- is owned and / or controlled and / or operated by the Publisher;
- is enrolled for the Service by the Publisher; and
- has begun to receive traffic.
- "Partners" shall individually or collectively, refer to third parties that DomainAdvertising.com may engage for providing commercial advertisements or content or for any product or service required by DomainAdvertising.com ;
- "Wrongful Use or Acts" refers to improper, fraudulent, illegal, or dubious acts in relation to or use of the Service, and shall include, but not limited to:
- run any automated bots, scripts or programs to create fraudulent traffic or revenue of Parked Domains in any manner;
- make any automated requests to the Parked Domains;
- stress test any aspect of the Services;
- disclose Confidential Information, including but not limited to URLs, parameters, data reported, revenues earned and the look, feel and functionality of the Services
- utilize or permit to be utilized any Parked Domain for the delivery of unsolicited commercial email messages (i.e., spam, as that term is defined in the U.S. CAN-SPAM Act of 2003) or for any such other illegal and/or dubious purpose or activity;
- cause people that may have not otherwise clicked on links or buttons displayed on the Parked Domains to click on such links or buttons in any fashion, including but not limited to beg, ask, entice, or provide incentives to End Users for clicking on such links or buttons;
- cause people that may have not otherwise visited a Parked Domain to visit a Parked Domain in any fashion, including but not limited to listings on newsgroups, bulk e-mailing, ICQ postings, or chat room / IRC postings, forums posting, guestbook posting, iframes, zero pixel frames, hitbots, clickbots, spiders, CGI-scripts, java-scripts, or any other similar method;
- encourage or require any individuals, either with or without their knowledge, to visit a Parked Domain, or to click on any links on the Parked Domains through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent;
- attempt to directly or indirectly cache, store, process, edit, modify, filter pages of the Parked Domains and its contents in any automated or manual fashion, or crawl, index or in any manner store or cache information obtained from the Domain Parking Service and the Parked Domains;
- offer or cause to offer any other means to display any pages of the Parked Domains, or any page similar to pages of the Parked Domains to an End User through a mechanism that does not involve a common browser and DomainAdvertising.com's infrastructure;
- modify the look and feel of the Parked Domains in any fashion on its side, except as allowed by DomainAdvertising.com through the Control Panel;
- display any other graphical or text units including pop-ups, pop-unders, exit windows, buttons, animations or any other advertisements while the End User is browsing the Parked Domains and immediately after the End User exits the Parked Domains or closes the browser window;
- obstruct full visibility of Parked Domains at any time, or adjust the browser window size, or cause any display which would partially or completely block the Parked Domains from the End User;
- redirect an End User away from the Parked Domains or serve a different version of the Parked Domain;
- provide any additional links, content or displays, including but not limited to branding, logos, graphics, animation, text, downloadable applications, marketing material and any other content, in any frames page that contains pages of the Parked Domain, or on the Parked Domain itself, except as provided for by DomainAdvertising.com ;
- allow any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Domain Parking Service or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of DomainAdvertising.com and/or Partners.
- create or attempt to create a substitute service or product through use of Services provided under this Agreement or proprietary information related thereto;
- claim to anyone, in any fashion, oral, or published, that the Parked Domain contains advertisements of any search engine or Partner;
- enroll a domain name in the Domain Parking Service for which Publisher does not have the right to do so or where such enrollment may violate any laws, intellectual property rights including without limitation trademark, service mark, trade name rights;
- engage in any action or practice that reflects poorly on DomainAdvertising.com and/or Partners or otherwise disparages or devalues DomainAdvertising.com and/or Partner's reputation or goodwill;
- transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any services or access provided under this Agreement, including, but not limited to the Parked Domains and its Content, or any part, copy or derivative thereof.
DUTIES OF THE PARTIES
- The Publisher shall begin parking with the Domain Parking Service by
- pointing it to a dedicated IP address provided for this purpose by DomainAdvertising.com;
- forwarding it to a URL specified by DomainAdvertising.com along with explicit parameters in the query string or otherwise and in a format specified by DomainAdvertising.com;
- modifying the name servers of a domain name to the DNS specified by DomainAdvertising.com ; or
- in any other fashion as prescribed by DomainAdvertising.com from time to time.
- Subject to the terms hereof, DomainAdvertising.com agrees to make available to the Parked Domains the Domain Parking Service, unless DomainAdvertising.com determines in its sole and absolute discretion that Publisher has committed a violation of its duties or made any false representations or warranties.
- This Publisher shall not, either directly or indirectly via third parties or representatives of the Publisher, or external entities, or programs or bots commit any Wrongful Use or Acts in relation to the Service offered under this Agreement.
- Notwithstanding the foregoing, the delivery of the Service by DomainAdvertising.com hereunder is entirely discretionary. DomainAdvertising.com may in its own sole discretion temporarily or permanently stop displaying pages of the Parked Domains or modify the contents of the Parked Domains, or disable the Publishers account with DomainAdvertising.com in the following (but not limited to) instances:
- in order to optimize the monetization opportunity for that Parked Domain, or to correct mistakes made by DomainAdvertising.com ; or
- in case of any breach of this agreement, or in case of termination of this Agreement, or if DomainAdvertising.com learns of any such event which DomainAdvertising.com reasonably determine would lead to termination of this Agreement or would constitute as breach thereof, or to protect the integrity and stability of DomainAdvertising.com 's Service, or
- to comply with any applicable laws, government rules or requirements, requests of law enforcement, or in compliance with any dispute resolution process, or in compliance with any agreements executed by DomainAdvertising.com, or if the agreements between DomainAdvertising.com and its Partners terminates or expires without renewal, or to avoid any liability, civil or criminal, on the part of DomainAdvertising.com, as well as their affiliates, subsidiaries, officers, directors and employees, or
- if the Contractee or any other authorized representatives of the Contractee violate any applicable laws/government rules/usage policies, including but not limited to, intellectual property, copyright, patent, anti-spam, or DomainAdvertising.com learns of the possibility of any such violation, or upon authorization from the Contractee in any manner that DomainAdvertising.com deems satisfactory, or for any other appropriate reason.
- If the Contractee's account remains idle for more than 90 days without any reason provided to DomainAdvertising.com. DomainAdvertising.com will notify You 7 days prior to such cancellation.
- The Contractee agrees that DomainAdvertising.com, and the employees, directors, officers, contractors, representatives, agents and affiliates, of DomainAdvertising.com, are not liable for loss or damages that may result from the any of the above acts of the Contractee or termination thereof.
- DomainAdvertising.com reserves the right to run random or continuous checks on the traffic coming to the Parked Domains and other web pages referring traffic to the Parked Domains. Such referral pages may not be password protected.
- DomainAdvertising.com may regularly update, amend, revise, supplement and modify this Agreement and policies and operating procedures for any reason deemed appropriate and the changes shall take immediate effect upon their being posted on the website "DomainAdvertising.com .com". The Contractee shall be responsible for regularly reviewing this Agreement. The Contractee may not use the Service unless the Contractee agrees to comply with DomainAdvertising.com's terms of Service as set forth in the Agreement, as updated from time to time. Should the Contractee decline to be bound by any new or recently changed provision of this Agreement, the Contractee must immediately discontinue any and all further use of the Service and close the Service Enrollment. Any continued use of the Service shall constitute an irrefutable expression of consent by the Contractee to comply with and be bound by the Agreement as it exists.
- Subject to the factors affecting payment and due compliance of this Agreement by the Contractee, the Contractee will be paid a commission of the total revenue earned by DomainAdvertising.com from the Parked Domains, excluding any traffic that DomainAdvertising.com, in its sole discretion, deems to be fraudulent or earned as result of any Wrongful Acts or Use.
- Contractee will be paid by DomainAdvertising.com on a monthly payment cycle, for each month, fifteen (15) days after Skenzo has received the payment from all its Partners for that month. This would approximately be forty five (45) days after the end of each calendar month. DomainAdvertising.com may, in its sole discretion, change the payment cycle for the Service or the Contractee by providing 15 day prior notice to the Contractee.
- DomainAdvertising.com will deduct all bank processing charges and delivery fees it incurs for making any payment to Contractee from their respective payments ("Transaction Costs").
- DomainAdvertising.com will process a payment to Contractee, only if the amount due in any calendar month exceeds USD 100, net of any and all Transaction Costs. If the amount due to the Contractee is lesser than USD 100 then such amount will be accumulated and carried forward to such subsequent payment cycle when the total accumulated amount due to the Contractee exceeds USD 100 net of any and all Transaction Costs.
Factors Affecting Payment:
- The Contractee acknowledges and agrees DomainAdvertising.com agrees to make commission payments to the Contractee pursuant to these terms of Service in this Agreement based on the mutual understanding that DomainAdvertising.com will be able to monetize the traffic through agreements with its Partners and that those agreements require that payment be made only upon appropriate traffic. As such, the Contractee acknowledges and agrees that all traffic generated to Parked Domains will be subject to review by DomainAdvertising.com which will not be disclosed to the Contractee. Further, in case DomainAdvertising.com is unable to collect revenues from any such Partners due to any failure of the Contractee to comply with the terms of this Agreement, any breach of Contractee's representations, warranties or covenants contained herein, the quality of the traffic which is being delivered to Parked Domains participating in the Service or any other factor that would prevent DomainAdvertising.com from earning revenue on Parked Domains, then commissions payable to Contractee hereunder shall be reduced accordingly.
- If the amount earned by Contractee hereunder is reduced to an amount less than the amount previously paid by DomainAdvertising.com, then Contractee shall immediately pay the difference to DomainAdvertising.com. Without limiting the generality of the foregoing, the Contractee understands and agrees that in the event any payment is made by DomainAdvertising.com to the Contractee and the Partner subsequently denies payment to DomainAdvertising.com for traffic generated from those Parked Domains, DomainAdvertising.com shall be entitled to repayment of any such amount whether through reduction of future payments to the Contractee or Contractee's repayment to DomainAdvertising.com of any such commissions based on such traffic.
- Further, the Contractee agrees that DomainAdvertising.com may withhold payments while traffic is being reviewed; or if DomainAdvertising.com reasonably believes that it will not receive payment for such traffic from its Partners.
- Contractee acknowledges that DomainAdvertising.com and Partners can run various checks, scripts and programs to identify fraudulent traffic, and DomainAdvertising.com and Partners in their sole discretion will determine what proportion of the traffic received on Parked Domains and revenue earned is genuine. Any portion of the traffic received on Parked Domains determined as fraudulent by DomainAdvertising.com or Partners, will be disregarded while calculating revenue paid to Contractee.
- DomainAdvertising.com has the right to rectify any mistakes in the traffic and/or revenue data at anytime.
Taxes and Withholding:
Contractee understands and agrees that taxes will not be withheld from any payments due to Contractee under this provision unless DomainAdvertising.com determines in its sole discretion that DomainAdvertising.com or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify Contractee of such withholding. Contractee understands and agrees that it is the responsibility of Contractee to pay all local, state, federal, and/or foreign taxes on income received under this Agreement. Contractee agrees to indemnify DomainAdvertising.com from, and promptly reimburse to, DomainAdvertising.com and its Partners and affiliates, any claim or assessment of Taxes by any foreign, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this paragraph with the exception of direct income tax applicable to DomainAdvertising.com under the laws of India.
The Contractee shall inform DomainAdvertising.com of any questions the Contractee may have as regards the payment of commissions under these provisions within fifteen (15) days of the date of such payment, in writing. Failure to so notify will constitute an acceptance of, and agreement with, the payment.
- DomainAdvertising.com may terminate this Agreement at any time with immediate effect by giving written notice in the event that the Contractee or an agent / employee / authorized representative of the Contractee materially breaches any term of this Agreement, including any of its representations, warranties, covenants and agreements hereunder and such breach is not cured within 5 calendar days after notice to the Contractee or it's agent / employee / authorized representative thereof.
- If in the sole discretion of DomainAdvertising.com, the Contractee has done any Wrongful Act or Use, or if the Contractee's account has remained idle for 30 days or more, or if the traffic to Parked Domains is not satisfactory, DomainAdvertising.com may immediate terminate this Agreement and suspend the Service without the need of prior notification or warning, along with forfeiture of any unpaid balances. DomainAdvertising.com may pursue any further legal action in case of any Wrongful Act or Use.
- In the event that DomainAdvertising.com learns that the Contractee does not have appropriate rights to the domain names or where the enrollment violates any laws, intellectual property rights, DomainAdvertising.com shall have the right to cancel any such names and/or withhold payments of any commissions due to the Contractee, and, in appropriate situations, in the sole discretion of DomainAdvertising.com, terminate Contractee's account. Contractee will indemnify DomainAdvertising.com against any claims or suits arising as a result of this clause.
- Either Party may terminate this Agreement, effective immediately, if the other Party is adjudicated bankrupt, becomes insolvent, voluntarily or involuntarily commences liquidation, if a receiver (temporary or permanent) for its property or a part thereof is appointed by a court of competent jurisdiction and not dismissed within 30 days after appointment, if it makes a general assignment for the benefit of creditors, or if execution is levied against substantially all of its property or which would have an adverse effect on the operation of its business and is not removed within 30 days.
Effect of Termination:
- Upon expiration or termination of this Agreement, and subject to factors that affect payment and payment terms and conditions (as per Clause 3), DomainAdvertising.com will send to the Contractee all balance due until that date within 15 business days, and suspend or delete the Contractee's account. All rights and licenses granted by the DomainAdvertising.com to the Contractee shall cease immediately; and the Contractee shall promptly return, or destroy and certify the destruction of, all Confidential Information of DomainAdvertising.com.
- Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its provisions, unless specified otherwise.
- Termination or expiration of the Agreement, in part or in whole, shall not limit either Party from pursuing other remedies available to it.
REPRESENTATION AND WARRANTIES
The Contractee represents and warrants that:
- The Contractee has all requisite power and authority to execute, deliver and perform your obligations under this Agreement;
- The Contractee has independently evaluated the desirability of the Domain Service provided by DomainAdvertising.com under this Agreement and is not relying on any representation, agreement, guarantee or statement other than as set forth in this Agreement.
- The Contractee acknowledges that the content on the Parked Domains is generated automatically. DomainAdvertising.com makes no warranties as to the appropriateness, validity and non-infringement of such content. DomainAdvertising.com makes no warranties that such content will not violate any applicable laws. Contractee has the ability to discontinue the parking service for any Parked Domain and as such may choose to do so at their sole discretion. The entire risk arising out of the use of the Domain Parking Service remains with the Contractee, and the Contractee will indemnify DomainAdvertising.com of any claims arising in relation to this clause.
- The Contractee represents that each Parked Domain is a duly registered domain name of which Contractee is
- the exclusive and official registrant, exclusively owns and controls, and exclusively owns all rights in, or
- is duly, expressly and exclusively authorized directly, or indirectly, by each of the associated official registrant(s) (each a "Registrant"), through a valid and fully enforceable written or click-through agreement with each such Registrant, to permit DomainAdvertising.com to perform the services, as contemplated under this Agreement as of the date and during the term such domain name remains a Parked Domain.
- Any material posted by the Contractee shall be considered to be in the public domain and the Contractee authorizes DomainAdvertising.com to use any such posting without any payment and without any liability to DomainAdvertising.com ;
- If the Contractee posts a third party's intellectual property, the Contractee is specifically warranting that the Contractee has the right to put this material into the public domain;
- The Contractee agrees to notify DomainAdvertising.com of any known or suspected wrongful acts or violations of this Agreement, and the Contractee's failure to do so shall be deemed a breach of this Agreement.
- The Contractee warrants that the Contractee will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions, or that in any manner could damage, disable, overburden, or impair our Service or interfere with any other party's use and enjoyment of same. The Contractee may not attempt to gain unauthorized access to the Service, other accounts, our computer system or network.
OWNERSHIP AND LICENSES
- Except as expressly set forth herein, nothing in this Agreement shall vest in the Contractee any right, title or interest in the DomainAdvertising.com intellectual property or any copyright, trademark or other intellectual property rights therein. All service marks, logos, trade names, trade dress, and trademarks of DomainAdvertising.com (collectively the Marks are the exclusive property of DomainAdvertising.com and nothing in this Agreement shall grant you the license to use such Marks. All intellectual property rights in the Services, including without limitation all computer code, audio, graphics, multimedia, images, sounds, and text incorporated into the Services, are owned exclusively by DomainAdvertising.com or its partners and are protected by copyright laws and international copyright treaty provisions. Any violation of the terms set forth herein is expressly prohibited by law and may result in severe civil and criminal penalties.
- Subject to the terms and conditions set forth herein, and during the entire term of this Agreement, the Contractee grants to DomainAdvertising.com the exclusive worldwide license to use the Parked Domains to provide the Services. Notwithstanding the foregoing, except as expressly set forth herein, nothing in this Agreement shall vest in DomainAdvertising.com any right, title or interest in the Parked Domains or any copyright, trademark or other intellectual property rights therein.
- Each Party reserve all rights in its intellectual property not specifically granted herein. Any improvements to existing intellectual property will continue to be owned by the Party already holding such intellectual property. d)Contractee shall further ensure that Contractee does not infringe any intellectual property rights or other proprietary rights of any person or entity, while using services under this Agreement. Contractee acknowledges that DomainAdvertising.com, cannot and does not, check to see whether any services or the use of the services by the Contractee under this Agreement, infringes legal rights of others.
NO GUARANTEE / DISCLAIMER OF WARRANTIES
- DomainAdvertising.com makes no guarantee or other representation regarding the amount of revenue to be paid to Contractee under this Agreement. DomainAdvertising.com's systems track traffic, and payments are made with respect to such estimates. These estimates may or may not reflect actual traffic or revenue related thereto.
- The Domain Parking Service and any other software / API / interface / specification / documentation / application services is provided on "as is" and "where is" basis and without any warranty of any kind. DomainAdvertising.com expressly disclaims all warranties and / or conditions, express or implied, including, but not limited to, the implied warranties and conditions of merchantability or satisfactory quality and fitness for a particular purpose and non-infringement of third party rights and quality / availability of technical support.
- DomainAdvertising.com assumes no responsibility and shall not be liable for any damages to, or viruses that may affect your computer equipment or other property in connection with access to, use of, the Domain Parking Service. Without limiting the foregoing, DomainAdvertising.com does not represent, warrant or guarantee that (a) any information/data/download available on or through the infrastructure serving the Parked Domains will be free of infection by viruses, worms, trojan horses or anything else manifesting destructive properties; or (b) the information available on the Parked Domains or through the infrastructure serving the Parked Domains will not contain adult-oriented material or material which some individuals may deem objectionable; or (c) the functions or services performed by DomainAdvertising.com will be secure, timely, uninterrupted or error-free or that defects will be corrected; or (d) the service will meet your requirements or expectations or (e) the services provided under this agreement operate in combination with any specific hardware, software, system or data or (f) you will receive notifications, reminders or alerts for any events from the system
- DomainAdvertising.com does not warrant nor make any representations regarding the use or the results in terms of their correctness, accuracy, reliability or otherwise.
- The Contractee further agrees that:
- The Contractee uses the Service at it's sole risk;
- DomainAdvertising.com provides the Service to the Contractee on an "as-is" and "as-available" basis; and
- The use of the Service is done at its own discretion and risk and that the Contractee will be solely responsible for any damage to any computer system or loss of data that results from any downloads from them.
- Neither DomainAdvertising.com nor any of our directors, officers, employees or agents shall have any liability to the Contractee for any failure or delay to maintain or provide any service to the Contractee. No advice or information, whether oral or written, obtained by you from DomainAdvertising.com or any third party shall create any warranty not expressly stated in this Agreement.
- Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions provided in this Agreement may not apply to the Contractee.
- The Contractee, at its own expense shall indemnify, defend, and hold harmless DomainAdvertising.com and its employees, directors, officers, representatives, agents and affiliates from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by DomainAdvertising.com , known or unknown, contingent or otherwise, directly or indirectly arising from Contractee's breach of any term or provision of this Agreement or any way related to Contractee's use of the Domain Parking Service.
- omainAdvertising.com will not enter into any settlement or compromise of any such indemnifiable claim without Contractee's prior written consent, which shall not be unreasonably withheld.
- Contractee will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by DomainAdvertising.com in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
LIMITATION OF LIABILITY
- THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE DOMAIN PARKING SERVICE REMAINS WITH THE CONTRACTEE. IN NO EVENT WILL DOMAINADVERTISING.COM, PARTNERS, OR CONTRACTORS OR THIRD PARTY BENEFICIARIES BE LIABLE TO THE CONTRACTEE FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF DOMAINADVERTISING.COM AND/OR PARTNERS AND/OR CONTRACTORS AND/OR THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- DOMAINADVERTISING.COM AND PARTNERS FURTHER DISCLAIM ANY AND ALL LOSSES OR LIABILITIES RESULTING FROM, BUT NOT LIMITED TO:
- LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION;
- LOSS OR LIABILITY RESULTING FROM FORCE MAJEURE EVENTS;
- LOSS OR LIABILITY RESULTING FROM ACCESS DELAYS OR ACCESS INTERRUPTIONS;
- LOSS OR LIABILITY RESULTING FROM NON-DELIVERY OF DATA OR DATA MISS-DELIVERY;
- LOSS OR LIABILITY RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT;
- LOSS OR LIABILITY RESULTING FROM THE INTERRUPTION OF SERVICE.
- LOSS OR LIABILITY RESULTING FROM INFRINGEMENT
- IF ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING (INCLUDING ARBITRATION) RELATING TO THE PERFORMANCE UNDER THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS BROUGHT AGAINST DOMAINADVERTISING.COM BY THE CONTRACTEE, THEN IN NO EVENT WILL THE LIABILITY OF DOMAINADVERTISING.COM (WHEN AGGREGATED WITH LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED USD 100.
- CONTRACTEE ACKNOWLEDGES AND AGREES THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE; THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
With respect to the Confidential Information, Contractee agrees that:
- Contractee shall treat as strictly confidential, and use all reasonable efforts, including implementing reasonable physical security measures and operating procedures, to preserve the secrecy and confidentiality of, all Confidential Information received from DomainAdvertising.com.
- Contractee shall make no disclosures whatsoever of any Confidential Information to others, except with the prior written consent of DomainAdvertising.com.
- Contractee shall not modify or remove any confidentiality legends and/or copyright notices appearing on any Confidential Information of DomainAdvertising.com.
- The obligations set forth herein shall be continuing, provided, however, that this section imposes no obligation upon the Parties with respect to information that:
- is disclosed with the other Party's prior written approval; or
- is or has entered the public domain in its integrated and aggregated form through no fault of the receiving Parties; or
- is known by the receiving Parties prior to the time of disclosure in its integrated and aggregated form; or
- is independently developed by the receiving Parties without use of the Confidential Information; or
- is made generally available by the other Parties without restriction on disclosure.
- In the event the Parties are required by law, regulation or court order to disclose any Confidential Information, the Parties will promptly notify the other Parties in writing prior to making any such disclosure in order to facilitate the other Parties seeking a protective order or other appropriate remedy from the proper authority, at the disclosing Party's expense. Each Party agrees to cooperate with the other Parties in seeking such order or other remedy. Each Party further agrees that if the other Parties are not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required.
- In the event of any termination of this Agreement, all Confidential Information, including all copies, partial copies of Confidential Information, copied portions contained in derivative works in Contractee's possession shall be immediately returned to DomainAdvertising.com or destroyed.
- Contractee shall provide full voluntary disclosure to DomainAdvertising.com of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Section 10 shall survive such termination and remain in full force and effect.
DELAYS OR OMISSIONS; WAIVERS
- No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
- No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
- No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
- The Contractee shall not create, publish, distribute, or permit any written / oral / electronic material that makes reference to DomainAdvertising.com and Partners or uses any of DomainAdvertising.com 's registered Trademarks / Service Marks or Partners registered Trademarks / Service Marks without first submitting such material to the DomainAdvertising.com and receiving prior written consent.
- The Contractee gives DomainAdvertising.com the right to recommend / suggest the Contractee's name and details to customers / visitors accessing DomainAdvertising.com's Website, and Prospective Customers and use the Contractee's name in marketing / promotional material with regards to services provided by DomainAdvertising.com. DomainAdvertising.com acknowledges that such usage of Contractee's name will be in good faith, and DomainAdvertising.com will not intentionally cause harm to Contractee's reputation or image by such use.
- Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a "Force Majeure Event") including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives or omissions of government or other competent authority, compliance with any statutory obligation or executive order, strike, lock-out, work stoppage, industrial disputes of any kind (whether or not involving either party's employees), any Act of God, fire, lightning, explosion, flood, earthquake, eruption of volcano, storm, subsidence, weather of exceptional severity, equipment or facilities breakages / shortages which are being experienced by providers of telecommunications services generally, or other similar force beyond such Party's reasonable control, and acts or omissions of persons for whom neither party is responsible. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Agreement, such party shall be excused from performance of its obligations (other than payment obligations) during the first three months of such interference, provided that such party uses best efforts to avoid or remove such causes of non performance as soon as possible.
ASSIGNNMENT / SUBLICENSE
- Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. The Contractee shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person(s)/party without the prior written consent of DomainAdvertising.com.
JURISDICTION & ATTORNEY'S FEES
- This Agreement shall be governed by and interpreted and enforced in accordance with the laws of India, applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in a court in Mumbai, India.
- DomainAdvertising.com reserves the right to enforce the law in the Country/State/District where the Registered/Corporate/Branch Office or Place of Management of the Contractee is situated as per the laws of that Country/State/District.
- Any reference in this Agreement to gender shall include all genders, and words importing the singular number only shall include the plural and vice versa.
- There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein.
- The Parties shall attempt to resolve any disputes between them prior to resorting to litigation through mutual understanding or a mutually acceptable Arbitrator.
- Survival: In the event of termination of this Agreement for any reason, Sections 1, 2, 3, 5, 8, 9, 10, 11, 12, 13, 17, 18, 19, and 20 shall survive.
- This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement) with any remedy, claim, and cause of action or privilege against DomainAdvertising.com.
- The Contractee, DomainAdvertising.com and Partners are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties. Contractee will have no authority to make or accept any offers or representations on DomainAdvertising.com's or our Partner's behalf. Contractee will not make any statement, whether on his Website or otherwise, that reasonably would contradict anything in this Agreement.
- Construction: The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.
- Entire Agreement; Severability: This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
- The division of this Agreement into Sections, Subsections, Appendices, Extensions and other Subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement.
- This agreement may be executed in counterparts.
- Language. All notices, designations, and specifications made under this Agreement shall be made in the English Language only.
- Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in the city of the registered office of DomainAdvertising.com.
- Any notice or other communication required or permitted to be delivered to either Party under this Agreement shall be in writing unless otherwise specified and shall be deemed properly delivered when delivered to:
- For Contractee:
[Address provided to DomainAdvertising.com during registration or specified in the Control Panel shall be used]
- For DomainAdvertising.com:
Attn: Legal Department
- For Contractee:
- Any communication shall be deemed to have been validly and effectively given, on the date of receiving such communication, if such date is a business Day and such delivery was made prior to 17:30 hours local time, and otherwise on the next business day.