Domain Brokerage Services Terms and Conditions

Version: February 2023

These general terms and conditions of business for the Domain Brokerage Service have been translated into English, French, Spanish and Chinese and are provided as a service to customers online. The contract language is German. The translation of these terms and conditions of use are therefore provided merely for information purposes. In the event of any ambiguities or divergences the German version is definitive.

Introduction

These are Sedo GmbH’s general terms and conditions of business for the Domain Brokerage Service. Sedo GmbH’s Domain Brokerage Service is a service for customers requiring the support of a Sedo GmbH domain broker when buying or selling a previously registered domain (also referred to as “the Domain Brokerage Service”).

Please read these general terms and conditions of business carefully before commissioning Sedo to provide the Domain Brokerage Service. By placing an order you are declaring that you agree to these general terms and conditions of use.
Scope of Application

1. Scope of Application

The business relationship between Sedo GmbH (hereinafter referred to as “Sedo”) and the customer (also referred to as the “buyer” or “seller”) shall be governed, in addition to the General Terms and Conditions of Business for the Domain Brokerage Service (hereinafter also referred to as the “Brokerage Terms”, “Domain Brokerage Terms” or the “domain brokerage contract”) as set out below, by Sedo’s general terms and conditions described in Sedo’s User Agreement (hereinafter referred to as “Terms of Use”), each as amended at the time of concluding the domain brokerage contract, at every phase of the brokerage relationship between Sedo and the seller/buyer, and with every provision in the Terms of Use applying where no deviating provision has been set out in the Domain Brokerage Terms. In the event of contradictions between the provisions of the Terms of Use and the provisions of the Domain Brokerage Terms, the clauses in the Domain Brokerage TERMSs shall take precedence.

Any deviating general terms and conditions of business of the customer are not recognized unless Sedo explicitly agrees to them in writing. Certain special conditions, which contain additional or diverging clauses to the Terms of Use or the Domain Brokerage Terms set out below, may apply to individual business relationships. In such cases any special conditions taking precedence over the two sets of Terms will be separately agreed with the customer.

2. Modes of Communication

(1) Sedo will make all instructions and information required to fulfill the domain brokerage contract available to the customer via the Transfer Center on the website. Sedo is not obliged to contact the customer using any other contact data that may be on file for the customer. If a notification is posted in the Transfer Center the customer will additionally be notified by an email sent to the email address stored in the customer account details. The fact that the customer might not be informed about notifications in the Transfer Center does not absolve the customer of his/her contractual obligations.

(2) The customer must ensure that s/he is contactable via the email address stated in his/her Sedo customer account.

3. Description of the Domain Brokerage Services

(3) The Domain Brokerage Service may be used by persons who wish to buy or sell a registered domain name and/or internet project (both hereinafter referred to as “domain”) and wish to receive the support of a Sedo domain broker to this end.

(4) Sedo does not act either as the seller or buyer of domains. Rather, Sedo assists its customers, by means of the services itemized in these Domain Brokerage Terms, to achieve their aim of buying or selling a domain by brokering the sale or purchase of a domain. Brokerage here means that Sedo represents the customer who has commissioned it to act for them and negotiates and/or concludes a sale agreement for the customer; as well as carrying out the services, including payment processing, set out in these Domain Brokerage Terms which are aimed at transferring the domain from the seller to the buyer.

(5) When carrying out its activities, Sedo will represent the interests of its customer with due care and diligence, and use its best endeavors to successfully broker the transaction, whether or not these activities ultimately lead to the conclusion of a contract.

(6) Sedo will notify its customer without delay about every potential deal brokered and every contract concluded through the mode of communication stated in these Domain Brokerage Terms. Sedo will make every effort to inform its customer unprompted - and at any time, if asked to do so - about current developments that are material to the performance of the domain brokerage contract.

4. Exclusivity

(1) Sedo will not act at the same time for both the seller and buyer of a domain; rather, it will either act only for the seller or only for the buyer of the domain.

(2) The customer commissions Sedo exclusively to provide brokerage and other services set out in these Domain Brokerage Terms, and commits not to engage any third parties in brokering activities relating to the domain name to be brokered for the duration of the domain brokerage contract.

(3) If the customer violates his/her obligation as set out in Section 4.2 of these Domain Brokerage Terms, namely to commission Sedo on an exclusive basis, s/he must pay Sedo a contractual penalty of EUR 2,000.00. If the commission lost on the contract exceeds the amount of EUR 2,000.00, instead of paying the contractual penalty of EUR 2,000.00, the customer must pay compensation in the amount of the commission lost. The sale price serves as the basis for calculating commission. If this cannot be determined, the maximum and minimum prices named by the customer, as described in Section 7.2 para. 1 of these Domain Brokerage Terms, shall apply.

(4) The customer acknowledges that Sedo offers a wide range of other services and facilitates transactions involving other domain names registered to third parties. The customer declares that s/he accepts that Sedo may possibly be representing third parties in competition with the customer, and that s/he does not view such activities as being either malicious or contrary to contract.

5. Customer Assurances

5.1 Customer Intention to Buy Or Sell When Placing Order

The customer warrants that at the time of placing of the order s/he desires in good faith to buy or sell the stated domain name and is not using the Domain Brokerage Service for the purpose of investigating the ownership of a domain, collecting evidence for the purpose of initiating legal proceedings or for the violation of applicable law or the rights of third parties in some other way.

5.2 The Rights of Third Parties

(1) Sedo herewith expressly states that its services do not cover investigation/scrutiny of the existence of any overriding business, naming or trademark rights or other rights of third parties. The carrying out of such an investigation - or the failure to do so - is the responsibility of the customer and comes solely under the customer’s risks and responsibilities.

(2) The customer is aware that trading and/or using domain names and internet projects, where these violate business, naming or trademark rights or other rights of third parties, can lead to their owner instigating legal proceedings and potentially enforcing an injunction. In such a case potentially, it may not be possible to demand the repayment of purchase monies already paid. This possibility exists in particular, if the purchaser, prior to contract formation, was informed by the seller about trademark or other risks associated with the purchase.

(3) The customer warrants that the domain name to be brokered and/or the use thereof does not violate any laws or third-party rights, in particular business, naming or trademark rights.

(4) The seller of a domain explicitly confirms that s/he is authorized to freely dispose of the domain. Furthermore, s/he warrants that the sale of the domain will not violate any business, naming or trademark rights or other rights of third parties, nor will it violate applicable law. The seller hereby undertakes to indemnify Sedo against any claims by third parties resulting from the violation of the rights of any third party, the buyer, the law, or this domain brokerage contract.

6. Formation of the Domain Brokerage Contract

The domain brokerage contract is formed when Sedo explicitly accepts the order placed by the customer in accordance with these Domain Brokerage Terms. Acceptance of the order is solely at the discretion of Sedo.

6.1 Exclusivity

(1) The customer acknowledges that in commissioning the Domain Brokerage Service from Sedo, neither the purchase nor sale of the domain will be through Sedo. Rather, Sedo merely brokers the purchase or sale of the domain.

(2) The customer places an exclusive order with Sedo for brokerage and other services as set out in these Domain Brokerage Terms by completing and submitting Sedo’s electronic order form.

(3) When placing the order, the customer must provide true and accurate details of all information relevant for the purchase or sale of the domain name in question. Sedo will determine what data is relevant and request this electronically during the order process.

6.2 Scrutiny and Acceptance or Refusal of the Order

(1) Once the order has been received, and within a reasonable period of time - generally within five (5) working days, Sedo will scrutinize the order and at its sole discretion accept or refuse the order.

(2) The customer will be informed by email as to whether the order has been accepted or refused.

(3) The sending of the acceptance email by Sedo causes the domain brokerage contract to be formed between Sedo and the customer.

6.3 Written Confirmation

If considerable cost will be involved in providing the brokerage service, Sedo may choose to send a copy of all or part of the Domain Brokerage Terms to the customer. In such a case, the customer undertakes to sign and return it to Sedo.

7. General Terms

7.1 Scope of Sedo’s Domain Brokerage Service

Sedo’s Domain Brokerage Service encompasses

(1) the brokerage services provided by Sedo.

Sedo is commissioned by its customer to broker, on behalf of and on the account of the customer, the purchase or sale of a domain and to negotiate the sale agreement and/or to conclude it. To this end,

immediately after accepting the customer’s order,
- Sedo will, on behalf of a customer interested in purchasing the domain name, research who is the owner of the domain name(s) to be brokered, contact the owner and try to negotiate with the owner to sell the domain name; or,
- on behalf of a customer wishing to sell, find a buyer for the domain name to be brokered and negotiate with the buyer to purchase the domain.
Sedo will conduct the sales negotiations on behalf of the customer as per these Domain Brokerage Terms either openly representing the customer or anonymously, if so requested by the customer; and,
on behalf of the customer, negotiate and conclude the domain purchase contract, openly representing the customer.

(2) Sedo’s Transfer Service.

Sedo’s Transfer Service covers the services set out in these Domain Brokerage Terms geared to transferring the domain and associated rights to register the domain name from the seller to the buyer, including payment processing.

Power of Attorney in Respect of Sale/Contract Negotiation, Formation and Accelerated Transfer

(1) The customer authorizes Sedo to negotiate and/or conclude a sale agreement on his/her behalf,

if wishing to acquire a domain, up to the maximum price set during the order process or at a later date in accordance with Section 7.3 below,
if wishing to sell a domain, down to the minimum price set during the order process or at a later date in accordance with Section 7.3 below,

either openly or anonymously representing the customer. Sedo is entitled to accept the purchase price from or on behalf of the buyer and to relay it to the seller. Furthermore, Sedo is entitled to deduct the remuneration owing to Sedo from the sale price, unless it is has been explicitly agreed that the buyer will pay Sedo its fee.

(2) The customer authorizes Sedo to coordinate, as it sees fit, and in accordance with Section 10.6 of these Domain Brokerage Terms, the transfer of a domain with his/her registrar for the purposes of assuming control of the domain. If Sedo is temporarily holding the domain in a registrar account that has been assigned to Sedo, the customer authorizes Sedo only to transfer the domain to a registrar account assigned to the buyer once the buyer has paid the purchase price in conformity with these Domain Brokerage Terms.

(3) In the event of an accelerated transfer as set out in Section 10.4 of these Domain Brokerage Terms, the buyer of a domain authorizes Sedo to set up a domain registrant account in his/her name, to agree to the registrar’s terms and conditions of use in his/her name and to inform the registrar of the buyer’s contact details as set out in the Sedo customer account. In such a case, the buyer agrees to the transfer and use by Sedo of his/her personal data for this purpose. Furthermore, Sedo is authorized to take all necessary measures to register the domain using this account.

(4) If brokering a domain for a seller, the customer authorizes Sedo to pass on payment instructions to the buyer using the payment information detailed in the customer account.

7.3 Change to the Maximum or Minimum price

(1) Buyers and sellers can increase or reduce the maximum and minimum prices they had respectively set at any time prior to concluding a sale agreement by writing to Sedo, provided that no firm offer aimed at concluding a sale has either been submitted or received by any party.

(2) Sedo and customer must mutually agree to any change of the maximum price or minimum price for such a change to valid.

(3) If the maximum price is lowered after Sedo has submitted a purchase offer to the domain owner, the originally agreed maximum price shall apply.

(4) If the minimum price is raised after Sedo has submitted a sale offer to a potential buyer, the originally agreed minimum price shall apply.

8. The Domain Purchase Contract

8.1 General Provisions

(1) If negotiations are concluded successfully, Sedo will offer its complimentary (standard) purchase contract and, based on the powers of representation granted, finalize it on behalf of the customer. In the event of the successful brokerage of the purchase of the domain name stated in the order, within the budget stated in the order, the customer agrees to Sedo using the purchase contract provided by Sedo for the purchase of the selected domain name.

(2) The purchase contract is formed between the seller and the purchaser and is only binding upon these parties. The deliverables and consideration for them agreed in the purchase contract, in particular the obligation to pay the agreed purchase price and to transfer the domain as well as content, data, programming and other elements linked to the website/project, are therefore only binding on the parties to the purchase contract and thus to the seller and purchaser of the domain. These deliverables and consideration for them are thus outside the scope of application of the Domain Brokerage Service.

(3) In the event of a failed transfer which is not the fault of the seller, the buyer of the domain is obliged to return the control of the domain to the seller if control of the domain had already been granted to the buyer or to a third party at the behest of the buyer.

(4) The purchase contract drawn up by Sedo can be made available to the customer upon request. Furthermore, Sedo is entitled to issue an individual domain brokerage contract, in addition to these Domain Brokerage Terms, to the customer. In both cases, if so stipulated by Sedo, the customer undertakes to sign and return the contract to Sedo without delay.

(5) Customer acknowledges that it is his/her responsibility to obtain any necessary legal advice or representation (and to cover the associated costs) in respect of drawing up or scrutinizing the purchase contract and any proposed changes. The customer also accepts that legal services are not part of the Domain Brokerage Service.

8.2 Purchase Price and Purchase Price Currency

(1) The purchase price for the domain is the price stated in the purchase contract and in the currency stated in the purchase contract agreed between the buyer and seller (“contract currency”).

(2) The purchase price will be automatically converted into the contract currency agreed in the purchase contract if the agreed contract currency is not the same as the currency originally selected by the customer or the standard currency setting (“user currency”) selected or assigned to the customer in the customer account. The exchange rate used by Sedo for conversion is the exchange rate of the European Central Bank valid at the time of initiating the Domain Brokerage Service or the Domain Transfer Service. Rates will be rounded to the nearest five (5) decimal places. The result of this conversion, in accordance with this section and including calculation of the fees to be paid to Sedo, will be rounded to the nearest whole dollar (USD), euro (EUR) or pound (GBP), depending on which currency was assigned to the customer. The result of this rounding, as per customary commercial practice, gives the purchase price to the customer in the currency determined in the purchase contract. The customer is not entitled under any circumstances to make or receive payment of the purchase price in another currency, nor to use a different exchange rate.

8.3 Right of Withdrawal

(1) Where Sedo acts for the buyer of a domain, the latter must agree to waive any right of withdrawal from the domain brokerage contract, regardless of whether this right of withdrawal has its basis in local law or contracts or not. This waiving of rights only applies to non-EU consumers.

(2) The customer also explicitly undertakes not to assert a right of withdrawal in the underlying purchase contract for a domain as justification for dissolving the domain brokerage contract with Sedo.

8.4 Disputes Between Buyer and Seller

(1) The customer acknowledges that it is not Sedo’s responsibility to force the conclusion of a purchase contract. The customer furthermore acknowledges that s/he may not demand the dissolution or termination of the domain brokerage contract or parts thereof on the basis of a dispute whose relevant, critical elements are covered by the purchase contract.

(2) If at some point during the term of the domain brokerage contract the buyer and seller start to disagree, Sedo may at its own discretion temporarily freeze its activities and set a reasonable deadline for the parties to reach agreement.

(3) If the deadline set in accordance with with Section 8.4 para. 2 of these Domain Brokerage Terms passes without agreement being reached, Sedo reserves the right to cancel the Domain Brokerage Service in accordance with the arrangements set out in Section 10.7 of these Domain Brokerage Terms. At this point the aggrieved party, whether it be the buyer or seller, is entitled to exercise its right to initiate legal proceedings against the party to the purchase contract violating the contract. The customer acknowledges that Sedo can in no way be held responsible or liable for a purchase transaction that ends in this way. Indeed, Sedo is entitled to assert a claim for the brokerage commission owing in accordance with these Domain Brokerage Terms against a customer violating the terms of the contract.

9. Payment of the Purchase Price

9.1 General Provisions

(1) Sedo alone shall make the decision as to whether the purchase price is to be paid in the contract or user currency, as per Section 8.2 of these Domain Brokerage Terms. The customer is not entitled to make, demand or receive payment of the purchase price in another currency, or at a specific exchange rate.

(2) In order to speed up payment to the seller, Sedo is entitled, exercising its own judgment and provided it is permitted by the relevant laws and regulations, to demand that the buyer transfers the purchase price to a bank account specified by Sedo. Alternatively, Sedo may use the services of a payment services provider to process payment. The customer herewith explicitly agrees to accept the terms and conditions of contract of the payment service provider.

9.2 Payment of the Purchase Price Where a Domain is Brokered for a Buyer

(1) The buyer is obliged to pay the domain purchase price without delay when instructions to do so are received from Sedo.

(2) If the buyer requires an invoice or tax-related information in conjunction with the purchase contract, s/he must inform Sedo of this prior to transferring the purchase price due. Sedo will merely pass on the query to the seller, as Sedo is not party to the domain purchase contract and can neither produce the required documentation nor force it to be produced. The buyer undertakes not to describe Sedo as the domain seller to any third parties, nor to imply that it is. If the buyer does not receive these documents after the purchase price due has been transferred, this circumstance does not release the buyer from his/her obligations under these Domain Brokerage Terms or the domain purchase contract. It also does not constitute a right of withdrawal.

(3) If the purchase price is transferred to a bank account stipulated by Sedo, Sedo is entitled to offset and deduct any amounts owing to it by the customer from the amount paid into the account. The buyer acknowledges that s/he is not freed of his/her obligations arising out of the purchase contract until such time as s/he transfers sufficient funds to cover both the amounts owing to Sedo and the purchase price.

9.3 Payment of the Purchase Price Where a Domain is Brokered for a Seller

(1) If so demanded by the buyer, the seller is obliged to issue a proper invoice containing all the necessary information. Failure to issue an invoice constitutes a violation of these Domain Brokerage Terms and the purchase contract concluded between the customers. If the violation is of the purchase contract, the buyer is entitled to withhold payment of the purchase price until such time as an invoice is issued and made available.

(2) If Sedo commissions a payment service provider to process payment, Sedo is authorized, in accordance with Section 7.2 para. 4 of these Domain Brokerage Terms, to relay the seller’s payment instructions as shown in the seller’s customer account on to the buyer. In this case, the seller is obliged to confirm receipt or non-receipt of the purchase payment within five (5) days of the due date for payment. If the seller does not confirm receipt of the purchase price after five (5) days have passed, his/her silence will be taken as confirmation that payment has been received and that Sedo may start and complete the transfer of the domain to the buyer.

(3) If the purchase price is transferred to a bank account stipulated by Sedo receiving payment on behalf of its customer, Sedo is only obliged to pay out the purchase price to the seller once the domain has been successfully transferred. Furthermore, Sedo reserves the right to deduct amounts owing to it by the seller from the sum received. The seller therefore acknowledges that non-receipt of the full purchase price does not constitute violation of the contract by the buyer and/or Sedo.

10. Domain Brokerage Transfer Service

10.1 General Provisions

(1) If the domain has been successfully brokered, the customer commits, upon conclusion of the domain purchase contract, to using Sedo’s subsequent, free-of-charge Domain Transfer Service. With this service, Sedo facilitates the transfer of the domain name that is the subject of the contract and thereby the associated requirements to register the domain name, as well as assisting with payment. Sedo does, however, reserve the right to refuse to offer the Domain Transfer Service in justified cases.

(2) The customer acknowledges that Sedo is at no point the owner or registrant of a domain.

(3) Sedo will inform its customers about steps which must be taken and about proven processes which are relevant for the technical transfer of the domain. Sedo can only ensure the prompt and proper transfer of the domain if its instructions are followed to the letter. The customer is therefore obliged to cooperate with all instructions issued by Sedo in relation to the technical transfer of the domain. A failure to demonstrate willingness to cooperate not only constitutes a material violation of the domain brokerage contract but may also be adjudged to be a material violation of the purchase contract by the contractual partner.

10.2 Successful Transfer

The domain is deemed to have been successfully transferred when the seller no longer has technical control of the domain and no longer has to do anything to facilitate technical control of the domain for the buyer (“successful transfer”). This is the case once

a) the buyer has changed the WHOIS dataset to show him/herself as the current domain owner;
b) Sedo has received confirmation from the buyer’s registrar or the registration unit that the buyer now has control of the domain;
c) the buyer confirms in writing that s/he has received the domain and has control of it; or
d) the buyer is requested to confirm that the transfer has taken place, and does not reply within five (5) days. In this case the silence is deemed to be confirmation of the transfer of the domain name.

A successful transfer can also be deemed to have occurred where Sedo, exercising its own judgment, has temporarily taken over control of the domain in order to facilitate its transfer. In such cases where Sedo assumes control of a domain while it is being transferred, Sedo is not obliged either to maintain or change the domain’s server settings, nor to display any content on the domain.

10.3 Failed Transfer

(1) A transfer is deemed to have failed if the transfer of the domain has not been completed in accordance with the rules set out in these Domain Brokerage Terms or is not deemed to have been successfully completed (“failed transfer”).

In particular, a failed transfer has occurred if the customer (i) refuses or fails to complete the transfer-related documentation in accordance with the regulations; (ii) obstructs the transaction in some form; or (iii) one of the parties to the contract cannot be identified in accordance with the regulations, because they have provided false or misleading personal or contact data, or have not updated the data.

In the event of a failed transfer - irrespective of the reason for it - the validity of the purchase contract remains unaffected.

(2) The customer therefore acknowledges that in the event of a failed transfer, this does not mean s/he is automatically released from his/her obligations arising out of the domain brokerage contract with Sedo and/or the domain purchase contract. In the event of a transfer that has failed irrevocably, those services which, as a result of the underlying purchase contract between the buyer and seller, have already been wholly or partially provided or initiated, must be reversed in accordance with the relevant clauses in the purchase contract or, alternatively, the clauses in these Domain Brokerage Terms. This normally also results in the purchase price, if it has already been paid, being refunded to the buyer and/or the rights/control of the domain being transferred back to the seller.

a) In the event of a transfer that Sedo classifies as having failed irrevocably and for which the buyer is not responsible, Sedo will initiate reimbursement of the purchase price to the buyer if the purchase price has been credited to the Sedo bank account specified by Sedo and provided that control of the domain has not been transferred to the buyer. Furthermore, Sedo will transfer back the domain to the seller if Sedo has control of the domain as described in Section 10.4 of these Domain Brokerage Terms and the purchase price payment has not (yet) been transferred to the seller.
b) In the event of a transfer that Sedo classifies as having failed irrevocably and for which the seller is not responsible, where the seller has already transferred control of the domain to a third party, the third party to whom control of the domain has been transferred undertakes to transfer it back to the seller in accordance with Sedo’s Domain Transfer Service Terms.
c) If the failed transfer has failed irrevocably because the customer did not comply with the instructions issued by Sedo, the buyer is not entitled to a refund of the purchase price for the domain or any commission owing to Sedo if either have already been paid. Furthermore, the seller is not entitled to have the domain transferred back or to a refund of any fees already paid to Sedo.
d) In the event that the buyer has complied with the instructions issued by Sedo but the failed transfer has nevertheless failed irrevocably, Sedo is entitled to transfer control of the domain back to the seller if Sedo is temporarily holding the domain. In such a case the buyer cannot accuse Sedo of a breach of duty due to having transferred the domain back to the seller.

10.4 Accelerated Transfer Where a Domain is Brokered for a Buyer

(1) If the buyer does not comply with Sedo’s transfer-related instructions as per Section 10.1 para. 2 of these Domain Brokerage Terms by the deadline set by Sedo, Sedo is entitled, if it sees fit, to carry out the registration for the buyer as the buyer has not continued to cooperate (“accelerated transfer”).

(2) In the case of an accelerated transfer Sedo sets up a domain registrant account in the name of the buyer, informs the registrar of the buyer's contact data as held in the Sedo customer account and takes all necessary steps to complete the domain registration in this account. In this case the buyer is obliged to bear all costs incurred and, where applicable, to reimburse Sedo. As soon as the domain has been booked to the domain registrant account, Sedo is allowed to treat the transfer of the registration as a successful transfer. In such a case no claim may be asserted, purely because the domain is not with the buyer’s preferred domain registrar, that Sedo has not fulfilled its obligations within the framework of the domain brokerage contract. Equally, once the domain has gone into this account, the buyer may not assert the claim that s/he does not have any control over the domain because s/he cannot use the registrar tools for updating domain registration data or the hosting server.

(3) If Sedo determines, in its sole discretion, to take control over the domain temporarily, the buyer undertakes to take over technical control of the domain immediately upon being instructed to do so by Sedo and to update the WHOIS information accordingly. Sedo is not responsible for maintaining the domain. If the buyer has not taken over technical control of the domain within sixty (60) days of Sedo assuming temporary control of the domain, Sedo may determine, in its sole discretion, not to extend the domain registration period. This may lead to the expiry or termination of the domain. If the domain expires or is terminated, the assertion of a claim against Sedo by the customer for potential loss of earnings or for compensation is herewith precluded. Sedo is indemnified by the buyer against all associated costs.

(4) Furthermore, if so requested by Sedo, the buyer is obliged to confirm or reject without delay the assumption of control over the domain. If the buyer does not react within five (5) days at the latest to the request, his/her silence is deemed to be confirmation of assumption of control over the domain. In such a case, Sedo is entitled to treat the transfer of registration as a successful transfer, at which point the buyer may no longer assert the claim that Sedo has not fulfilled all its obligations under the terms of the domain brokerage contract, just because the buyer does not have technical control of the domain.

(5) As soon as the domain transfer has been completed and the buyer has technical control over the domain, the buyer must confirm that s/he is bound by the contract with the registrar with whom s/he holds the domain, as well as by all that registrar’s rules. S/he acknowledges that these could include clauses that allow the registrar in future to charge fees to the buyer for maintaining the registration. Furthermore, the buyer also agrees that it is not Sedo’s responsibility to ensure that the registration is maintained. The buyer acknowledges that a restriction of his/her rights to transfer the registration to another registrar (such as a 60-day block on transferring a domain elsewhere) may apply and therefore agrees that s/he may not assert a claim against Sedo for non-fulfillment of its obligations under the terms of the domain brokerage contract simply because the buyer is restricted in his/her domain transfer options. Subject to the terms of the contract with the registrar, the buyer may, at his/her own cost, change the registrar for the transferred domain; in so doing, however, s/he acknowledges that support services for a transfer of the domain elsewhere are not part of the Sedo Domain Brokerage Transfer Service and that Sedo is not obliged to extend its services to include this particular service.

(6) As soon as the buyer has assumed control of the domain, s/he is obliged to update the WHOIS entry for the domain at the relevant registration unit without delay. The buyer also commits to compensate Sedo and/or the seller for all damages or costs arising out of not updating the WHOIS entry for the domain.

10.5 Special Provisions Where a Domain is Brokered for a Seller

(1) The seller undertakes to cooperate with and support the buyer in updating the WHOIS information for the domain and with all queries about registrars involved, the domain transfer and the domain purchase contract.

(2) The seller also undertakes to relinquish control of the domain immediately upon being instructed to do so by Sedo. In cases where Sedo has taken temporary control of the domain, the domain will be stored in the names of both the seller and buyer.

(3) In the event of a failed transfer, the non-payment of the purchase price to the seller and the refund of the purchase price to the buyer do not constitute a breach of duty on Sedo’s part. In such a case the assertion of a claim of breach of duty and the disbursement of the purchase price is precluded. Furthermore, Sedo is entitled to demand payment of its fees from the seller as the party violating the contract. The seller hereby acknowledges and undertakes to pay Sedo’s fees if s/he is responsible for the failed transfer.

10.6 Registrar Accounts

Sedo, in its sole discretion, is entitled to exercise its own judgment as to whether to work with the buyer’s or seller’s preferred registrar on taking control of the domain, so as to speed up service delivery. This can mean that Sedo temporarily holds the domain in a registrar account assigned to Sedo. In this respect the buyer and seller authorize Sedo only to transfer the domain to a registrar account assigned to the buyer once the buyer has made the purchase price payment in accordance with the provisions of these Domain Brokerage Terms, or it is deemed to have been paid.

10.7 Cancellation of the Domain Brokerage Transfer Service

In the event of disagreements as outlined in Section 8.4 of these Domain Brokerage Terms, or of a failed transfer or of some other violation of the clauses of these Domain Brokerage Terms, Sedo reserves the right to see fit to cancel the Domain Brokerage Transfer Service. This is particularly the case if

a) the buyer or seller has not fulfilled his/her obligation to cooperate with the transfer process despite having been twice asked to do so through the Transfer Center
b) the service violates the local regulations of either Sedo’s, the buyer’s or the seller’s legal system, or
c) one of the parties to the purchase contract violates the Domain Brokerage Terms or the purchase contract.

11. Fraud

(1) In the event of Sedo, after completion of a domain transfer, being made aware of a documented case of fraud in connection with its customer as the seller of the domain, the seller undertakes - where Sedo can demand the return of the domain from the registrar in the name of the seller - to accept the return of the domain and to repay the purchase price for the domain to Sedo.

(2) Should the seller not comply with Sedo’s instructions as set out in Section 11 para. 1 above, Sedo is entitled to decide to store the domain in the seller’s name and to offset the amounts it maintains are owing to it against that part of the purchase price that the seller has not repaid to Sedo, or to sell the domain to a different buyer in order to reimburse itself for costs or losses incurred.

(3) Without prejudice to the Section above, Sedo reserves the right to assert claims against the buyer or seller for any compensation payments/losses incurred through violation of these Domain Brokerage Terms, the general Terms of Use and/or Sedo’s conditions of use.

12. Third-Party Service Providers

(1) Sedo is entitled solely in relation to its Transfer Service to transfer service provision or parts thereof to third-party service providers or a subcontractor in order to be able to fulfill its obligations arising out of the domain brokerage contract.

(2) The customer agrees to confidential and personal data in relation to the transaction being passed to the third parties involved, in order to provide the service.

(3) Furthermore, the customer undertakes to accept the relevant Terms of Use of the third-party service provider where these are necessary for performance of contract and are demanded by the third-party service provider.

13. Guarantee and Warranty Disclaimer

(1) Sedo does not offer any guarantees and/or warranties whatsoever

a) to customers interested in buying, in respect of the availability of a domain name, the willingness of the current domain name owner to sell and/or the successful brokerage of the acquisition of a domain name;
b) to customers interested in selling, in respect of the existence and willingness to buy of parties interested in buying and/or the successful brokerage of the acquisition of a domain name.

(2) Sedo does not accept any liability nor offer any warranty in respect of the non-existence of third parties with overriding rights to the domain name.

14. Liability, Liability Exclusions and Exemptions Applying to Sedo

14.1 Violation of overriding third-party rights

The liability of Sedo for detriments or damages arising out of the existence of overriding third-party rights to the domain name is precluded where these damages are not the consequence of willful or grossly negligent behavior on the part of Sedo, its legal representatives, or subcontractors. Furthermore, the customer releases Sedo from any claims for compensation or liability, reprimands or claims to desist, or any other claims asserted by third parties, as well as from any costs arising out of the aforementioned, which are the result of the violation of overriding third-party rights within the meaning of Section 5.2 or other clauses of these Domain Brokerage Terms, or of the law.

14.2 Failed Transaction and/or Failed Transfer

The liability of Sedo for detriments or damages arising out of a failed transaction or a failed transfer is precluded where these damages are not the consequence of intended, willful or grossly negligent behavior on the part of Sedo, its legal representatives or subcontractors. In the case of a violation of material contractual obligations (main obligations) caused by minor negligent behavior, liability is restricted to the damages that could have been typically provided for. Sedo’s liability in this case is restricted to an amount of EUR 5,000.00 max. per loss event. Liability is otherwise precluded.

14.3 Sedo Liability for Claims Based on Product Liability or Data Protection Law

The liability of Sedo for claims based on product liability or data protection law, where Sedo has expressly adopted a guarantee or to the extent that the liability relates to damages from fatalities, physical injuries or damage to health, is unaffected by the liability provisions stated above.

14.4 Liability Exclusions

Furthermore, the liability provisions set out in Sedo’s general terms and conditions of use apply, where they have not been modified through the provisions in Section 15 of these Domain Brokerage Terms.

15. Fees and Transaction Costs

(1) The customer must pay Sedo the fees shown in the Price List tfor using the Sedo Domain Brokerage Service. These may be changed without prior notice by Sedo.

The application fee must be paid by the customer irrespective of the result of the brokerage activities and is non-refundable.
If Sedo is unsuccessful in brokering the purchase or sale of a domain name, no further charges, other than the application fee, will be levied on the buyer and/or seller.
If a purchase contract is successfully concluded, the customer is obliged to pay, in addition to the application fee, the brokerage commission due to Sedo as set out in the Price List valid at the time.

(2) The purchase price in the agreed contract currency as detailed in Section 8.2. of these Domain Brokerage Terms forms the basis for the fees to be paid to Sedo.

(3) If the purchase contract is not successfully concluded because the customer culpably fails to honor his/her obligations in accordance with these Domain Brokerage Terms or the Terms of Use, Sedo reserves the right to demand payment of the brokerage commission owing to it plus any costs incurred from the customer violating the terms of the contract. In addition, Sedo may make claims for compensation against the customer. Over and above this, a contractual partner who violates his obligation to cooperate or some other contractual obligation may be subject to claims for performance of contract and/or compensation from the other contractual partner.

(4) Where the buyer and seller have concluded a purchase contract, but the purchase or sale of the domain name cannot be carried out, any fees due to Sedo shall still be due and payable, despite the failed transfer. In the case of a failed transfer Section 16 para. 3 above applies as appropriate.

(5) When the domain is transferred from the seller to the buyer, further costs may be incurred:

depending on the provider involved, for example, costs may be incurred for registering the domain acquired or for extending the registration period prior to a transfer. These payments must be made directly by the customer to the provider.
If the so-called expiration date falls within 60 days of the conclusion of the purchase contract, the seller must apply for the registration period to be extended and must pay the associated costs for this.
The buyer and seller also undertake to reimburse Sedo for all costs invoiced to Sedo by the registrar as a result of an accelerated transfer or for the temporary safekeeping of the domain as set out in Section 10.6 of these Domain Brokerage Terms.

16. Contract Term

(1) Where the domain brokerage activity is on behalf of the buyer, the domain brokerage contract is concluded for an indefinite period of time. Sedo and the buyer may give written notice to terminate the contract at any time. There is no entitlement to a reimbursement of any fees.

(2) Where the domain brokerage activity is on behalf of the seller, the domain brokerage contract is concluded for a period of six (6) months, starting on the date on which the contract is concluded (“Initial Contract Period”). It is extended by a further six (6) months unless notice to terminate is given at least two (2) weeks prior to the expiry of the Initial Contract Period. Notice must be given in writing and may be sent by fax or email.

(3) In addition, either party to the contract may terminate the domain brokerage contract for good cause without the need to observe a notice period. Good cause is deemed by Sedo to exist, in particular, when

there is no possibility of contacting the domain owner;
there is no timely and consistent communication between Sedo and the customer;
the information provided by the customer in relation to the job is false or changes significantly and/or is not updated;
the customer fails to reply to a communication from Sedo within ten (10) working days;
the customer fails to react to three (3) reminder emails or warning notices;
exercising its own judgment, Sedo decides that it will not be possible to negotiate the purchase of the domain or there is no market for the domain to be sold;
the customer violates his/her obligations arising out of these Domain Brokerage Terms; or
clauses in the domain purchase contract contradict clauses in the domain brokerage contract.

(4) Once the contract termination has come into effect, the customer must place a new order to reactivate the domain brokerage service.

17. Confidentiality

(1) The parties to the contract undertake to safeguard the operational and business secrets of Sedo and the customer and to store all documents relating to the domain brokerage contractual relationship safely so that no third party can access them.

(2) Customers who have commissioned the Domain Brokerage Service may, at their express wish, confirmed in writing, remain anonymous throughout the entire brokerage process. The (company) name and contact information can, however, be displayed in the relevant Sedo customer account or, in the course of transferring the domain, in a purchase contract once this has been concluded. Sedo is entitled, if requested to do so by the aggrieved party, to reveal the identity of its customer if the latter does not fulfill its obligations in accordance with these Domain Brokerage Terms or the purchase contract, or if it violates clauses of these Domain Brokerage Terms which then leads to a failed transfer.

(3) Sedo is entitled, if it sees fit to do so, to restrict access to the identity of the other party during the domain brokerage transfer process so that the parties to the purchase contract remain anonymous. Both during and after the domain brokerage transfer process Sedo may not provide any information relating to a party’s identity other than its name, address and email address to the other party without the express permission of the former, other than in legally prescribed cases.

(4) Sedo will, however, record and publish the sale price and domain name(s). Sedo charges a fee, defined in the Sedo Price List valid at the time, for forbearing to publish the domain name and price. Sedo will not publicize the personal data of buyer or seller.

18. Usage of Information for Marketing Purposes

Sedo will not pass any personal data of its customers to third parties other than for the purpose of contract performance. Sedo does, however, reserve the right to store and publish information on brokered domain names and the price paid for them in an anonymous form. The customer has the right to object to the publication of this information. Due to the increased administration involved in this, the party requesting this will be invoiced an additional percentage-based fee based on the actual purchase price. The fee is determined in the current Sedo Price List.

19. Miscellaneous

19.1 Right of Modification

Sedo will inform the customer of any intention to modify these Domain Brokerage Terms. If the customer does not object to the changes in the required form and by the due date, the modified terms and conditions of business will come into force two (2) calendar weeks after notification was received. An objection is deemed to have been made in the required form and by the due date if it is made in writing and is received by Sedo two (2) weeks after the notification from Sedo was received. Sedo will inform the customer of his/her options to object and the form and deadline an objection must adhere to; and of the legal consequences of submitting an objection that has not been made in the required form and by the due date. If the customer submits an objection that has been made in the required form and by the due date, Sedo is entitled to terminate the contractual relationship with the customer immediately and to suspend the customer account.

19.2 Requirement for Communication in Written Form

Unless otherwise agreed between Sedo and the Customer, any side agreements, modifications, or additions to the domain brokerage contract are only valid if Sedo agrees to such changes in writing.

19.3 Invalid Contractual Clauses

Should a clause in the Terms of Use or in the Domain Brokerage Terms be or become wholly or partially invalid, the validity of the Domain Brokerage Contract and the Terms of Use remain unaffected. In place of the invalid clauses, an appropriate ruling shall apply that should be as close as possible to the parties’ original intentions.