2. TERM AND TERMINATION.
2.1. Term. The Parties agree that this Agreement will be effective upon the Effective Date and shall extend for three months from this date and may be renewed at the option of the Domain Buyer for an additional three months.
2.2. Termination. The Agreement will terminate upon the successful purchase of the Domain(s) or at the expiration of the above mentioned time periods. Any potential purchase transaction initiated during the Term of this Agreement will automatically extend the Agreement until the said purchase is completed and Company will be entitled to payment if the Domains are purchased by Company while the Agreement is in effect. Because of the marketing efforts to be extended by Company in the marketing of the Domains, the Parties agree that this Agreement may not be terminated by either Party during the Term; provided, however, that a Party may terminate this Agreement immediately in the event of a material breach of this Agreement by the other Party or any affirmative act of insolvency by the other Party.
3. EXCLUSIVE BROKERAGE.
3.1. For and in consideration of the time and efforts to be expended by Company, Domain Buyer hereby grants to Company the exclusive right to purchase the Domain(s) during the Term of this Agreement. As such, during the Term of this Agreement, Domain Buyer agrees not to use, appoint, hire, retain or engage any person or entity other than Company to act as Domain Buyer’s agent, buyer’s representative or in a similar capacity with respect to the Domain(s).
3.2. Agency Relationship. During the Term of this Agreement, Company shall act as the exclusive agent for Domain Buyer and shall manage any actual or potential purchase of the Domain(s), pursuant to the terms and conditions contained herein. The Parties specifically agree that in some instances Company may act as an agent for both Domain Buyer and the Domain Seller (“Seller”) of one or more Domains from Domain Seller. Domain Buyer hereby consents to Company acting as a dual agent for Domain Buyer and Seller only in certain situations where Company and Seller are doing business at “arms’ length” and/or Company is not receiving any kick-back or other incentive to increase the negotiated purchase price of any Domain; provided, however, that Company shall disclose any such relationship to Domain Buyer in advance of the consummation of any Domain sale by Seller.
4. OBLIGATIONS OF COMPANY.
4.1. Company shall provide exclusive acquisition services to Domain Buyer and shall use its best efforts to purchase the Domain(s) during the Term of this Agreement. Company shall exercise reasonable skill and care in negotiating for the Domain(s) for Domain Buyer.
4.2. Company, as Domain Buyer’s exclusive broker and agent, shall negotiate the purchase of the Domain(s) and shall disclose to Domain Buyer any facts or information learned while speaking to the owner of said Domain(s).
5. OBLIGATIONS OF DOMAIN BUYER.
5.1. Domain Buyer shall establish for itself an Escrow.com account, if it has not done so already, which shall be used by Domain Buyer to facilitate the purchase of the Domain(s) pursuant to this Agreement.
5.2. Domain Buyer may not use the service of another broker for any of the Domains while this Agreement is in effect.
5.3. Domain Buyer represents and warrants to Company that it is financially capable of making this purchase. Domain Buyer hereby expressly declares that it is authorized to sign this Agreement.
5.4. Domain Buyer agrees to complete the sale of one or more of the Domains if Company negotiates up to the maximum reserve price for the Domain(s) or if the Company negotiates a price that, if more than the maximum reserve price, is otherwise acceptable to the Parties and confirmed in writing (email sufficing) by Domain Buyer; and if any sale includes a definitive agreement between Domain Buyer and Seller which includes the terms, conditions, representations, warranties and covenants normally found in such an agreement. The amount actually paid for the Domain(s) before any taxes, fees or expenses, shall be the “Actual Sales Price”.
6. COMMISSION TO COMPANY.
6.1. Commissions Payable. Company shall use best effort to purchase the Domains pursuant to this Agreement and Domain Buyer agrees to compensate Company by the payment of a commission in the amount of 15% of the Actual Sales Price of each Domain less the escrow fees charged by Escrow.com (the “Commission”). If the Actual Sales Price of each Domain less the escrow fees charged by Escrow.com is equal to or less than $16,667, the minimum Commission shall be $2,500. Said Commission shall be paid without any discount or allowance for any sales and marketing efforts made by Domain Buyer or by any other person in connection with the sale of the Domains. Company shall be paid the Commission regardless of the source or development of the purchase. In consideration of the services to be performed by Company, Domain Buyer agrees to pay Company the Commission. Domain Buyer shall arrange for the Commission to be paid from the payment made by the Domain Buyer through the automatic features available through Escrow.com.
6.2. Commission Payment.
6.2.1. Company acknowledges and agrees that Domain Seller will only accept a bank wire in United States Dollars for the purchase of the Domain; and that the Actual Sales Price shall not include the value of any other consideration that a potential buyer desires to pay, barter or exchange for the Domain(s).
6.2.2. Domain Buyer and Company agree to use Escrow.com to complete any Domain transaction. Domain Buyer agrees that Company will be paid its Commission from the proceeds held by Escrow.com, as further set forth in Section 6.1 above. Domain Seller shall have no obligation to transfer any Domain until Escrow.com has received and confirmed receipt of the full Actual Sales Price payment from Buyer. Upon completion and verification of the transfer of the Domain(s) to Buyer, Domain Buyer shall authorize Escrow.com to release the Commissions earned by Company directly to Company.
6.3. Non-Cash Compensation. While the priority is to receive an immediate all-cash payment as Actual Sales Price for the Domain, if any Domain Buyer’s payment were to include non-immediate cash or non-cash payments, such as debt or ownership in a new entity intending to use the Domain, or as another example, licensing/royalty fees over time, such different forms of payment will be divided according to the same percentages detailed in Section 6.1 above. In the case of the Parties accepting anything but immediate cash for the Domain, the Parties would have to both agree to such terms.
7. MISCELLANEOUS PROVISIONS.
7.1. Publication Rights. There are no publication rights granted under this agreement.
7.2. Relationship of the Parties. Company is retained hereunder as an independent contractor and nothing herein contained shall create an employer/employee, partnership or joint venture relationship between the Parties.
7.3. Confidentiality. Each Party agrees that it shall not disclose the terms of this Agreement to any person or persons except as required by applicable law or compelled by a court of competent jurisdiction. Notwithstanding the foregoing, this provision shall not apply to disclosures made by either Party to their agents, employees and advisors to whom such disclosure is necessary in order to perform pursuant to this Agreement.
7.4. Force Majeure. Both Parties hereto shall be excused from the performance of its obligation under this Agreement in the event such performance is prevented by causes beyond the control of a particular Party, including without limitation, unforeseen circumstances causing the disruption of services provided through Company’s website; disruption of services provided via the Internet; disruption of access to Company’s Site; acts of God; acts, regulations or laws of any government; war; civil commotion; destruction of service facilities or materials by fire, earthquake or storm; epidemics; labor strikes; and failure of common carriers, and such performance shall be excused; provided, however, that if any such Force Majeure event continues for more than one month, Domain Buyer may terminate this Agreement.
7.5. Attorneys’ Fees and Costs. In connection with any litigation arising out of this Agreement, the prevailing Party shall be entitled to recover all costs incurred, including reasonable attorney’s fees, for services rendered in connection with such litigation, including appellate proceedings and post-judgment proceedings.
7.6. Disclosure of Relevant Information. Domain Buyer and Company specifically acknowledge and understand that if either Domain Buyer or Company knows of any information materially affecting the value of the Domains, whether said information is readily discernible or publically available, Domain Buyer or Company, as applicable, shall disclose these facts to the other Party.
7.7. Notices. Any notice required or permitted to be delivered pursuant to this Agreement must be delivered by facsimile, U.S. Mail, certified or registered mail, or overnight courier, and addressed as set forth below the signature line of the Party to whom notice is being given, or to such other address as the Parties may from time to time designate by notice in writing to the other Party.
7.8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without respect to its conflict of laws provisions. Venue for any litigation or other dispute resolution arising under, or in connection with, this Agreement shall be in the state and federal courts located in Fulton County, Georgia. The Parties agree to confer jurisdiction for any and all actions concerning this Agreement, upon the state and federal courts located in Fulton County, Georgia.
7.9. Entire Agreement. This Agreement constitutes and represents the entire agreement between the Parties and supersedes any prior understandings or agreements, written or oral, between the Parties respecting the subject matter of this Agreement. This Agreement may be amended, supplemented or modified only upon an agreement in writing executed by all of the Parties. This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. If any provision of this Agreement shall be determined to be invalid, void or illegal, such provision shall be construed and amended in a manner which would permit its enforcement, but in no event shall such provision affect, impair or invalidate any other provision in this Agreement.
7.10. Amendments. No amendment of this Agreement shall be valid unless set forth in a writing signed by both Parties.
7.11. Liquidated Damages. In the event of a material breach of this Agreement by Domain Buyer or in the event Domain Buyer purchases the Domain(s) directly from domain owner or through any person or entity other than Company during the Term of this Agreement, Company shall be entitled to terminate this Agreement immediately and receive the Commission based on the maximum reserve price or the actual sales price, whichever is greater, as liquidated damages. Domain Buyer and Company acknowledge that any damage to Company due to the foregoing would be difficult to determine and agree that the foregoing liquidated damages are fair and adequate to compensate Company in any such event
7.12. LIMITATION OF WARRANTY AND LIABILITY. ALL SERVICES BY COMPANY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BOTH PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. COMPANY DOES NOT WARRANT OR GUARANTY THAT THE SERVICES WILL RESULT IN THE SALE OF THE DOMAIN(S) NOR DOES COMPANY GUARANTEE THAT THE BROKERAGE SERVICES WILL OPERATE WITHOUT FAULT, ERROR OR INTERRUPTION. EXCEPT FOR ANY DAMAGE CAUSED BY COMPANY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR RECKLESSNESS, DOMAIN BUYER’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE TO PROVIDE THE SERVICES PROMISED HEREIN IS TO TERMINATE THIS AGREEMENT. EXCEPT AS EXPLICITLY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR THE LOSS OF DATA, BUSINESS INTERRUPTION OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY CLAIM OR FINDING THAT A REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL PURPOSE.
7.13. WAIVER OF JURY TRIAL. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY TRIAL IS A CONSTITUTIONAL RIGHT, THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY BY ALL PARTIES TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
7.14. Assignment. Neither Party may assign or transfer this Agreement, either in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the prior written consent of the other Party, if such assignment is to: (i) a person or entity which, directly or indirectly, through one or more intermediaries, is controlled by, controlling, or under common control with, the assigning Party, or (ii) a person or entity that has acquired all or substantially all of the assigning Party’s assets as a successor to the business of the assigning Party (whether by way of merger, reverse merger, consolidation, sale and purchase of assets or otherwise), and such person or entity has agreed in writing prior to the effective date of such assignment to be bound by and to perform in accordance with this Agreement as if it were the assigning Party. Any attempted assignment in violation hereof shall be void.
7.15. Survival of Obligations. The obligations of the Parties under this Agreement that by their nature would continue beyond termination or expiration of this Agreement, including without limitation all liabilities and obligations that have accrued prior to such termination or expiration, shall survive, and each Party shall also retain any and all rights that it may have under applicable law.
7.16. Severability. Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity and maintain the Parties’ original intent.
7.17. Headings and Counterparts. As used in this Agreement, captions and paragraph headings are provided solely for convenience and shall not be deemed to restrict, limit or interpret the meaning of the text. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Photocopies, signatures reproduced by mechanical, digital or other means, and/or facsimile transmittal signature pages, may be used instead of originals.
7.18. Recitals. The recitals first mentioned above are true and correct and hereby incorporated into this Agreement as if fully restated herein.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized representatives as of the Effective Date first written above.