Escrow Service Agreement

 

1. Introduction

This Sedo Escrow Service Agreement (this “Agreement”) is entered into by and between Sedo.com, LLC (“Sedo”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Sedo’s Escrow Service (“Escrow Service” or the “Service”). Your acceptance of this Agreement indicates that you have read, understand and agree to the terms of this Agreement, along with Sedo’s User Agreement, which is hereby incorporated by reference. If you reside outside the United States or Canada you are subject to the Sedo GmbH User Agreement.

Any capitalized terms not defined within this Escrow Agreement shall have the meaning as described in the Sedo User Agreement.

If Sedo intends to amend this Escrow Agreement, Sedo will notify you thereof. If you do not object thereto in due form or in due time, the amended Escrow Service Agreement shall take effect two (2) calendar weeks after receipt of the notice. An objection is only deemed to have been made in due form and in due time if it is made in writing and is received by Sedo within two weeks after receipt of the notice. Sedo shall notify you of the possibility of filing an objection and of the form and time limit therefor and the legal consequences of failing to file an objection in due form and in due time.

Unless otherwise agreed between Sedo and you, side agreements, amendments, or addenda to this Agreement are not valid unless set forth in written form (e-mail and fax are sufficient). Any waiver of this written form requirement is also not valid unless set forth in written form.

These terms and conditions may be provided in languages other than English such as German, French, Spanish and Chinese. In the case of any inconsistency between the English version and the other versions, the English version will prevail.

2. Description of Escrow Service

The Escrow Service allows Users to securely transfer funds for the purchase of, or legal right to register, an Internet domain name (“Domain”) that is the subject of a purchase and sale agreement whereby a domain buyer (“Buyer”) has agreed to purchase the Domain from a domain owner (“Seller”) for an agreed upon amount (“Purchase Price”).

Transfer of the Domain, content, data, programming and/or any additional consideration included in a purchase and sale agreement are outside the scope of the Escrow Service. Buyer and Seller agree that they are solely responsible for the transfer of any and all elements of a transaction outside the Purchase Price and that once the Escrow Service is initiated and accepted by Sedo, neither party will request cancellation due to a dispute over such.

Drafting of custom purchase and sale agreements, enforcing the terms of such agreements between Buyer and Seller, or any legal consultations on the part of Sedo or its partners or sub-contractors are not included in the Service and must be obtained from User's own legal representative.

Sedo provides the Escrow Service in partnership with Escrow Domains and Greenberg & Lieberman, LLC, who shall act as the escrow agent of record for the transfer of the Purchase Price. Users ordering the Escrow Service must review and accept the terms and conditions of Escrow Domains and Greenberg & Lieberman, LLP, which you may review here and which are hereby incorporated by reference (“Escrow Partners”).

USER HEREBY AUTHORIZES SEDO TO SHARE THE CONTACT INFORMATION IN YOUR USER ACCOUNT WITH SEDO’S ESCROW PARTNERS FOR THE SOLE PURPOSE OF PROVIDING THE SERVICES DESCRIBED HEREIN AS DESCRIBED IN SECTION 3.5 BELOW, INCLUDING THE CREATION OF A USER ACCOUNT ON ESCROW PARTNERS’ WEBSITE.

3. Rights and Duties of Sedo

Users who wish to have Sedo’s technical assistance with the transfer of the Domain should instead order Sedo’s Domain Transfer Service. Domain transfer support is not a feature of the Escrow Service and Sedo nor its Escrow Partners have any duty to support transfer of the Domain besides the relaying of messages between Buyer and Seller.

Sedo and its Escrow Partners act here neither as a Buyer or Seller, nor as the representative of a Buyer or a Seller. Sedo and its Escrow Partners reserve the right to review and reject any orders for the Escrow Service in its sole discretion. Sedo shall not accept any orders in which the Purchase Price is less than the fees owed to Sedo pursuant to this Agreement or any other agreement for services related to the Domain.

Sedo and its Escrow Partners shall provide all instructions to Buyer and Seller through the applicable sections of your User Account on the Sedo Site or the Escrow Partners’ site. You shall not hold Sedo and its Escrow Partners responsible to reach out to you through other contact information listed in your User Account. You will be contacted via the email address listed in your User Account when communications are posted to your User Account. Not being aware of any communications posted to your User Account, whether on the Sedo Site or the Escrow Partners’ site, shall not be grounds to release you from any of your obligations in this Agreement or the terms and conditions of Sedo’s Escrow Partners.

3.1 Transferring the Purchase Price

Sedo and/or its Escrow Partners shall instruct the Buyer and the Seller of the Domain as to the required steps and best practices involved in the transfer of the Purchase Price. Once remitted, the Escrow Partners shall safeguard the Purchase Price on Buyer’s and Seller’s behalf until disbursed to the Seller. Sedo and its Escrow Partners can only ensure the prompt and orderly transfer of the Purchase Price if Sedo's instructions to the Buyer and Seller are strictly followed.

A successful transfer of the Purchase Price has taken place when the Sedo’s Escrow Partners have confirmed that the Purchase Price has been successfully remitted to the Seller according to their preferences, after Buyer has confirmed their control of the Domain in accordance with the Escrow Partners terms of use.

3.2 Anonymity

Sedo and its Escrow Partners may, at their sole discretion, restrict the identity of the other User during any portion of the Escrow Service process to provide anonymity for the parties to the purchase and sale agreement. Both during and after the Escrow Service Process, the User agrees that Sedo and its Escrow Partners may provide their contact information to the other User.

3.3 Disputes between Buyer and Seller

BUYER AND SELLER AGREE THAT SEDO AND ITS ESCROW PARTNERS SHALL NOT BE RESPONSIBLE FOR SEEKING ENFORCEMENT OF ANY PURCHASE AND SALE AGREEMENT.

If the Buyer and Seller become involved in a dispute at any time during the Escrow Service, Sedo and its Escrow Partners may temporarily stop providing the Service and set a reasonable deadline for the parties to reach an agreement. If said deadline passes without a resolution, Sedo and its Escrow Partners reserve the right to cancel the Escrow Service. At that point, the aggrieved party, either Buyer or Seller, may exercise their right to initiate a legal process or proceeding against the other party. Both Buyer and Seller agree that Sedo and its Escrow Partners are not responsible or liable in any way for a purchase and sale transaction ending in this manner.

3.4 Cancellation of the Service

Sedo and its Escrow Partners reserve the right to cancel the Escrow Service ("Failed Escrow") for the following reasons. Sedo may cancel the Escrow Service if any provisions of the purchase and sale agreement conflict with the provisions of this Agreement, including the incorporated terms and conditions of the Escrow Partners. Sedo may cancel the Escrow Service because of a dispute between the Buyer and Seller pursuant to Section 3.3. Sedo may cancel the Escrow Service if Buyer or Seller fails to fulfill its obligation to cooperate in the escrow process after two (2) requests are made by Sedo via the User Account. Sedo may cancel the Escrow Service if the Service violates the local regulations of either the Buyer or Seller’s jurisdiction. Sedo may cancel the Escrow Service if either party to the purchase and sale agreement materially breaches this Agreement.

If the Escrow Partners have received the Purchase Price pursuant to Section 3.1, the Escrow Partners shall return the Purchase Price to the Buyer if the Seller has not transferred control of the Domain to the Buyer or the Escrow Partners shall disburse the Purchase Price to the Seller if the Seller has transferred control of the Domain to the Buyer.

Should either party fail to meet to their obligations under this Agreement or the purchase and sale agreement, Sedo or the Escrow Partners shall provide the identity of the breaching User to the injured User upon request.

PROVIDED THAT A CLAIM ORIGINATING FROM A FAILED ESCROW IS NOT BASED UPON THE INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF SEDO, ITS STATUTORY REPRESENTATIVES OR VICARIOUS AGENTS, BUYER AND SELLER AGREE THAT SEDO SHALL NOT BE LIABLE FOR DETRIMENT OR DAMAGES, ORIGINATING FROM A FAILED ESCROW CAUSED BY, BUT NOT LIMITED TO, EITHER BUYER OR SELLER (i) REJECTING THE PROPER COMPLETION OF PAYMENT OR DOMAIN TRANSFER-RELATED DOCUMENTS, (ii) IMPEDING THE EXECUTION OF THE TRANSACTION IN ANY OTHER WAY, OR (iii) IN THE CASE WHERE ONE OF THE CONTRACTUAL PARTIES CANNOT BE PROPERLY IDENTIFIED DUE TO PROVIDING INCORRECT OR MISLEADING CONTACT INFORMATION.

3.5 Subcontractor

You acknowledge and agree that Sedo may utilize the assistance or services of a third-party provider, including, but not limited to, the Escrow Partners, to fulfill its obligations under this Agreement so long as the identity of the provider is disclosed to you and you will not incur any additional cost for Sedo’s use of the provider’s services. You hereby authorize Sedo to share confidential information regarding the transaction with such a third party provided that the third party is bound to the same degree of care as Sedo to protect that information.

4 Rights and Duties of Domain Buyer

The provisions of this Section 4 shall apply to you for any Transaction in which you are the Buyer.

4.1 Remitting Payment

You agree to promptly remit payment of the Domain Purchase Price upon receipt of instructions from Sedo or Escrow Partners. The Purchase Price will be safeguarded on Buyer’s and Seller’s behalf by the Escrow Partners. Sedo and the Escrow Partners reserve the right to apply the payment, or any part thereof, to any outstanding obligations you owe to Sedo or the Escrow Partners before applying payment to the Purchase Price. You acknowledge that failure to remit sufficient funds to cover any outstanding obligations you owe to Sedo or the Escrow Partners and the Purchase Price is not grounds to release you from any obligations of the purchase and sale agreement.

If you require an invoice or tax information (such as a form W-9) related to the purchase and sale agreement, you shall inform Sedo of this requirement prior to remitting payment. Sedo shall communicate the request to the Seller as neither Sedo nor the Escrow Partners are parties to the purchase and sale agreement and, unless an Escrow Partner offers to facilitate such a request on behalf of Buyer and Seller in accordance with the Escrow Partner’s terms and conditions, Sedo and the Escrow Partners cannot furnish those documents. You agree that you shall not portray Sedo or the Escrow Partners as the Seller of the Domain to any third party. Failure to receive these documents after remitting payment shall not be grounds to release you from any of your obligations in this Agreement.

4.2 Transferring the Domain

You agree to cooperate with all the instructions provided by the Seller, Sedo and/or its Escrow Partners regarding the initiation and confirmation of the technical transfer of the Domain registration. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Seller as a material breach of the purchase and sale agreement.

Once the initial transfer of the Domain is complete, you acknowledge that you are free to change the registrar for the transferred Domain at your own expense. You also acknowledge that assistance with any further transfers of the Domain are not part of the Escrow Service and that neither Sedo nor the Escrow Partners are obliged to extend the Service for such purposes.

You agree to promptly confirm or deny your control of the Domain upon receipt of such an inquiry from Sedo or its Escrow Partners. Sedo and Escrow Partners shall be authorized to deem the transfer of registration to the Buyer complete should Sedo or its Escrow Partners not receive a response from you within ten (10 days). Sedo and Escrow Partners shall also be authorized to deem the transfer of registration to the Buyer complete based on confirmation of delivery through online tracking, a Whois change, or confirmation of the registrar change.

4.3 Transfer Failure and Repayment

You acknowledge that failure of the transfer of the Domain registration, for any reason, does not automatically release you from the purchase and sale agreement.

If the transfer of the Domain registration is ultimately unsuccessful for reasons unrelated to you and you have remitted payment pursuant to Section 4.2, Sedo or its Escrow Partners shall be responsible for returning the full payment of the Domain’s Purchase Price less any fees due.

If the Escrow Service is ultimately unsuccessful solely due to the fact that you have not undertaken to follow the instructions provided by Sedo or the Escrow Partners, there will be no responsibility on any party to return to you any fees or amounts owed in accordance with this Agreement or the respective purchase and sale agreement.

5 Rights and Duties of Domain Seller

The provisions of this Section 5 shall apply to you for any Transaction in which you are the Seller.

5.1 Payment

You agree to provide an invoice and tax information (such as a form W-9) if requested by the Buyer, Sedo, or the Escrow Partners. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Buyer as a material breach of the purchase and sale agreement. You hereby agree that Buyer may delay remittance of payment of the Purchase Price until you provide the requested documents.

Sedo’s Escrow Partners shall disburse the Purchase Price after you have relinquished control of the Domain to Buyer. Sedo or its Escrow Partners reserve the right to deduct any outstanding obligations you owe to Sedo or the Escrow Partners from that payment. You acknowledge that not receiving a payment of the exact amount of the Purchase Price is not grounds for a breach of this Agreement or the purchase and sale agreement by the Buyer.

5.2 Transferring the Domain

You agree to promptly relinquish control of the Domain upon receipt of confirmation from Sedo and/or its Escrow Partners that the Purchase Price has been remitted.

You agree to cooperate with all the instructions provided by Buyer, Sedo and/or its Escrow Partners regarding the initiation and confirmation of the technical transfer of the Domain registration. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Buyer as a material breach of the purchase and sale agreement.

In the event of a Failed Escrow, Sedo shall refund the Purchase Price to the Buyer unless the successful completion of the escrow process failed solely due to the Buyer’s failure to follow the instructions provided by Sedo or its Escrow Partners after payment of the Purchase Price.

5.3 Domain Transfer Failure

You acknowledge that failure of the transfer of the Domain registration to Buyer, for any reason, does not automatically release you from the purchase and sale agreement.

If the transfer of the Domain registration is ultimately unsuccessful for reasons unrelated to you and you have relinquished control of the Domain, the Buyer to whom you relinquished control shall be responsible for returning control of the Domain.

If the Escrow Service is ultimately unsuccessful solely because you have not undertaken to follow the instructions provided by Sedo or the Escrow Partners, there will be no responsibility on any party to return the Domain to your control.

5.4 Fraud

In the event Sedo is made aware of documented fraud relating to a Buyer or Seller utilizing the Escrow Service after transfer of the respective Purchase Price has been completed, you agree that, if Sedo or its Escrow Partners are able to instruct Buyer to return the Domain to your control on your behalf, you are obligated to accept a return of the Domain and shall remit back to Sedo or its Escrow Partners the Domain’s Purchase Price. If you do not cooperate with all the instructions provided by Sedo and/or its Escrow Partners, Sedo and/or its Escrow Partners shall be authorized, at its sole discretion, to either hold the Domain on your behalf and deduct any portion of the Purchase Price you have not returned to Sedo from any other amounts owed to you by Sedo, or to resell the Domain to another Buyer to recoup Sedo’s losses. Notwithstanding the foregoing, Sedo reserves the right to recover from Buyer or Seller any and all damages resulting from breaches of this Escrow Service Agreement and/or Sedo User Agreement. 

5.5 Authority

Seller expressly affirms that it has the authority to freely dispose of the Domain. Furthermore, Seller affirms that by its sale, the Domain does not infringe on company, name and brand rights or other priority rights of third parties and does not violate applicable law. Seller hereby agrees to indemnify Sedo and its Escrow Partners from any and all third party claims against Sedo and/or the Escrow Partners which are based on the Domain’s violation of third party rights or Seller’s breach of this Agreement.

6 Fees and Related Costs

The Escrow Service is provided for a fee specified on the Sedo Price List, which is located on the Site and subject to change from time to time.

When a Domain is transferred from the Seller to the Buyer, Buyer or Seller, based upon their respective registry and registrar providers, can incur further costs. The responsibilities for these payment obligations are defined by the relationship of the Buyer or Seller to the provider. This can include, but is not limited to, the responsibility of the Seller to pay for a registration renewal when the domain is set to expire within sixty (60) days from the date the Escrow Service is initiated.

The Purchase Price for the Domain shall be the price in the currency as identified in the purchase and sale agreement between the Buyer and Seller. The Purchase Price in the agreed-upon currency shall form the basis for formulating any fees owed Sedo. The Buyer agrees to remit the Purchase Price in the agreed-upon currency and the Buyer and Seller agree that the Purchase Price will be held by the Escrow Partners in the agreed-upon currency. The Buyer understands that if they choose to remit payment from an account held in another currency, they are responsible for any shortfall incurred in the conversion of the payment remitted to the agreed-upon currency. The Seller understands that if they choose to receive disbursement to an account held in a different currency, additional conversion rates and fees may be applied to the disbursement.

In the case of a Failed Escrow, Buyer and Seller agree that Sedo reserves the right to collect any applicable fee it would otherwise be owed for a successfully completed sale from the Purchase Price before returning it to the Buyer or remitting it to the Seller as per Section 3.4. Furthermore, any claims for damage compensation or contractual performance may be asserted by the non-breaching party against that party which violates his/her obligations under these terms or the terms of the applicable purchase and sale agreement.

7 Disclaimer of Warranties by Sedo

To the extent permitted by the law and without regard to intentional or gross negligence on the behalf of Sedo and its Escrow Partners, in addition to those disclaimers and limitations on warranties found in the Sedo User Agreement and terms and conditions of the Escrow Partners, Buyer and Seller understand, acknowledge and agree that:

(i) SEDO AND ITS ESCROW PARTNERS ARE NOT THE SELLER OF THE DOMAIN, AND AS SUCH, MAINTAIN NO DUTY TO VERIFY THAT THE DOMAIN NAME AND/OR WEBSITE CONTENT BEING SOLD AND TRANSFERRED DO NOT VIOLATE THE PRIORITY RIGHTS OF ANY THIRD PARTIES AND THUS MAKES NO WARRANTIES AS TO THE EXISTENCE OF CONFLICTING PRIORITY RIGHTS OF ANY THIRD PARTIES;

(ii) THE BUYER AND SELLER AGREE THAT THE ESCROW SERVICE DOES NOT INCLUDE AN EXAMINATION OR VERIFICATION OF THE EXISTENCE OF ANY CONFLICTING PRIORITY FIRM NAME, NAMING OR TRADEMARK RIGHTS, OR OTHER RIGHTS OF THIRD PARTIES; AND

(iii) FAILURE TO PERFORM IN ADVANCE AN EXAMINATION OF THE DOMAIN NAME AND/OR WEBSITE CONTENT FOR THE EXISTENCE OF CONFLICTING RIGHTS, INCLUDING, BUT NOT LIMITED TO, PRIORITY OWNERSHIP RIGHTS, TRADEMARK RIGHTS, AND/OR VIOLATION OF APPLICABLE LAW, IS THE SOLE RESPONSIBILITY OF THE BUYER AND SELLER.