Terms of Service
Broker.xxx
Terms-of-Service Agreement
Last Updated: March 12, 2021
This terms-of-service agreement is between Broker.xxx (“Broker.xxx”), and you, the individual or entity signing up to use www.broker.xxx (“Website”) and all other services, including the brokerage services to sell assets related to a website or other online business through Broker.xxx (“Services”). Please read this agreement carefully before using the Website or the Services, including listing assets or purchasing assets through the Services. If you do not agree to this agreement, you must not use the Services or the Website.
This agreement is a legally binding contract, and you have a duty to read this agreement before using the Website or the Services. If you do not agree to this agreement, you must immediately stop using the Website or the Services. Broker.xxx reserves the right to modify, amend, replace, suspend, or terminate this agreement at any time and within its sole discretion. If Broker.xxx modifies, amends, or replaces this agreement, the last updated date, located above, will change. Your use of the Website or the Services after a change in the last updated date constitutes your acquiescence to and acceptance of any modification, amendment, or replacement.
The parties agree as follows:
1. Buying and Selling through Broker.xxx
1.1 “Assets” means the following:
(a) All accounts associated with the Business, including all associated accounts, content, data, customer lists, databases, files, and artwork;
(b) All the Business’s general intangibles, including payment intangibles;
(c) All the Business’s instruments, including promissory notes, records, customer lists, email lists, and other files related to the Business;
(d) All letters of credit and letter-of-credit rights and supporting obligations;
(e) All the Business’s inventory, including raw materials, finished goods, packaging, and inventory deposits, if any (“Inventory”);
(f) All relevant domain names and associated domain name registrations (“Domain Names”);
(g) All rights in, arising out of, or associated with any patents, patent applications, trademarks, service marks, brands, logos, trade dress and all trademark applications or registrations, copyrights and works of authorship, copyright applications or registrations, trade secrets, know-how, inventions, technical information, computer programs, data, databases, applications, code, source code, rights of publicity, and all other intellectual property or proprietary rights (“Intellectual Property”);
(h) All licenses for applications or plugins used in connection with the Business;
(i) All prepaid expenses and subscriptions associated with the Business; and
(j) All goodwill and the going concern value of the Business.
1.2 “Business” means the Seller’s overall business function offered under one or more brand names.
1.3 “Buyer” means a User that has Unlocked the Confidential Information about a Business or Domain Names.
1.4 “Seller” means a User that has submitted a Business or Domain Names for sale through Broker.xxx’s Services.
1.5 “User” means a person or business that wishes to buy or sell assets related to a website or other online business through the Services, has registered an account with Broker.xxx, and has agreed to this agreement.
2. Modifications to this Agreement. Modifications to this agreement will not be binding unless acknowledged and agreed to in a writing by the relevant parties. Agreements to alter this agreement made through email, the Website, or other electronic writing (including checking a box) will be considered a writing for purposes of amending this agreement. No oral modifications are permitted.
3. Broker.xxx Account
3.1 Account Creation. To use the Services, you are required to create an account on the Website and consent to this agreement. To create an account, you must complete the registration process by providing Broker.xxx with accurate information as prompted by the registration form. You also will choose a password and a username. By registering for an account, you acknowledge that Broker.xxx may contact you through the details you provided, including phone and email, however, you may opt out of future emails.
3.2 Responsibility for Account. You are responsible for maintaining the confidentiality of your password and account. You must not provide any third party with access to your account. Further, you are responsible for all activities that occur under your account. You will promptly notify Broker.xxx of any unauthorized use of your account or any other breach of security.
3.3 Liability for Account Misuse. Broker.xxx will not be liable for any loss you may incur as a result of someone else using your password or account, either with or without your knowledge. Broker.xxx or another person could hold you liable for losses that Broker.xxx or another person incur due to someone else using your account or password.
3.4 Use of Other Accounts. You will not use anyone else’s account at any time.
3.5 Account Security. Broker.xxx cares about the integrity and security of your personal information. But Broker.xxx cannot guarantee that unauthorized persons will never be able to defeat the Site’s security measures or use any personal information you provide to Broker.xxx for improper purposes. You acknowledge that you provide your personal information to Broker.xxx at your own risk.
3.6 Statements of Fact. By registering for an account, you state that the following facts are accurate:
(a) You are either the age of majority in your nation, state, province, territory, or city, or at least 18-years old, whichever is greater;
(b) You are of sound mind, have the capacity to contract, and agree to the terms contained within this agreement;
(c) You have full power and authority to sign this agreement. If a User is making this statement on behalf of business entity or third party, the User states that he or she has actual authority to act as an agent of that business entity or third party and have the right and ability to agree to the terms of this agreement on behalf of that third party or business entity;
(d) If you are a Seller, you have fill unencumbered title to the Assets and Business or Domain Names to be sold through Broker.xxx’s Services;
(e) If you are a Buyer, you have sufficient funds to complete the purchase of any Assets and Business or Domain Names in which you make an offer to purchase; and
(f) You are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors.
4. Use of Website
4.1 License. During this agreement, Broker.xxx hereby grants you a nonexclusive, nontransferable license to access the Website and its software for your use under this agreement. You will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website.
4.2 Intellectual Property Rights. The Website and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by Broker.xxx, its licensors, or other providers of the material and are protected by Canadian and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
4.3 Trademarks. The company’s name, the term BROKER.XXX, the company’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Broker.xxx or its affiliates or licensors. You will not use these marks without Broker.xxx’s advance written permission. All other names, logos, product and service names, designs, and slogans on the Website are the trademarks of their respective owners.
4.4 User Conduct. You will use the Website only for lawful purposes under this agreement. You must not engage in any of the following prohibited activities:
(a) copying, distributing, or disclosing any part of the Website in any medium, including by any automated or non-automated “scraping;”
(b) transmitting spam, chain letters, or other unsolicited email;
(c) attempting to interfere with, comprise the system integrity or security of, or decipher any transmissions to or from the servers running the Website;
(d) taking any action that imposes, or may impose at Broker.xxx’s sole discretion an unreasonable or disproportionately large load on the Website’s infrastructure;
(e) uploading invalid data, viruses, worms, or other software agents through the Website;
(f) collecting or harvesting any personally identifiable information, including account names, from the Website;
(g) using the Website for any commercial solicitation purposes outside of the Services;
(h) impersonating another person or otherwise misrepresenting your affiliation with a person, conducting fraud, hiding or attempting to hide your identity;
(i) interfering with the Website’s proper working;
(j) accessing any content on the Website through any technology or means other than those provided or authorized by the Website; or
(k) bypassing measures Broker.xxx may use to prevent or restrict access to the Website, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content in it.
5. Broker.xxx’s Right to Terminate Users. Broker.xxx retains the discretion to terminate this agreement and ban Users from the Services (a) if a User is in breach of the agreement, (b) if Broker.xxx has grounds to believe a User is a repeat violator of this or previous agreements, or (c) for other grounds based on Broker.xxx’s discretion that a User will cause damage or injury to other Users or Broker.xxx. Users are expressly prohibited from contacting other Users for purposes unrelated to the purchase of Assets, including soliciting Users for sales of products or services.
6. Process to Submit a Business or Domain Name for Listing with Broker.xxx
6.1 Broker.xxx, in its sole discretion, will approve or reject the Business or Domain Name for listing on the Website and participation in the Services. Broker.xxx reserves the right to reject any submission for any reason or no reason at all.
6.2 Users submitting a Domain Name or Business to Broker.xxx acknowledge that Broker.xxx will rely on the facts and representations submitted. Users must provide Broker.xxx with all relevant information, as determined in Broker.xxx’s discretion, related to the operation of the Domain Name or the Business and Assets, including any relationship with distributors, affiliates, drop-shippers, view-only access to relevant information, or any other material information regarding the Domain Name or the Business. This information must be truthful, accurate, current, and complete. Broker.xxx reserves the right to ask Users for additional information about their Domain Name or Business. The User must provide complete and truthful information to all of Broker.xxx’s questions. Broker.xxx may share any information provided with independent third parties in connection with the vesting process.
6.3 Broker.xxx may provide Users with the ability to upload or transmit user-generated content in association with the Business or Assets, including text, comments, photographs, images, videos, audio files, profile information, name, likeness, advertisements, listings, information, and designs (collectively, “User-Generated Content”). Except as otherwise provided in this agreement, Users state that they own all interest in and to the User-Generated Content. By submitting User-Generated Content to Broker.xxx, you hereby grant Broker.xxx a non-exclusive, irrevocable, royalty-free, worldwide, perpetual license to use the User-Generated Content for the customary and intended purposes of the Services. These purposes may include, providing third parties with the Services and archiving or making backups of the Website. Users waive all moral rights in and to the User-Generated Content across the world, whether or not Users have asserted moral rights in or to the User-Generated Content. By submitting User-Generated Content, Users further waive all rights of publicity or privacy with respect to the User-Generated Content. Users state that any User-Generated Content submitted will not violate the rights of third parties, including trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
6.4 Users will be cooperative and provide reasonable assistance while the Domain Name or Business is being evaluated, including answering inquiries from potential buyers or Broker.xxx within 48 hours, and acting in a professional and courteous manner at all times. Users also will provide details about availability for sales calls and attend those calls. Users acknowledge that those sales calls may be recorded. User will direct all third-party communications regarding the sale of its Assets or Business to Broker.xxx.
6.5 Unless you expressly disclose specific facts indicating otherwise in writing to Broker.xxx in connection with the submission of your Domain Name or Business, by submitting your Domain Name or Business to Broker.xxx, you state that the following facts are accurate:
(a) You have clear and unencumbered title to the Assets and any related assets to be sold through Broker.xxx, including all intellectual property rights;
(b) You have not placed the Assets to be sold subject to a mortgage, pledge, lien, or encumbrance, except for those taxes must be prorated as of the Sale Date;
(c) You and the Assets are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors;
(d) The information you have provided to Broker.xxx in connection with the Assets or Business is true, accurate, current, and complete, and you have not omitted any material information regarding the performance or value of the Assets; and
(e) To the best of your knowledge, there is no lawsuit or pending claim or charge against the Assets.
7. Approval of Business for Listing and Exclusive 6-Month Listing Term; Automatic Renewal
7.1 After review of your Domain Name or Business, Broker.xxx will recommend a listing price for the sale of your Domain Name or your Business and the Assets (“Listing Price”). The User’s Domain Name or Business will not be listed for sale until the User agrees to the Listing Price. If the User does not agree with the Listing Price, the User is not under any obligation to list its Domain Name or Business with Broker.xxx.
7.2 The Domain Name or the Business has been “Listed” once it appears on the Website, which is also referred to as the “Listing Date.” Sellers expressly grant Broker.xxx an exclusive right to list, market, or advertise the Domain Name or the Business and Assets for sale for a period of six months from the date the Domain Name or the Business and Assets were listed (“Listing Term”). The Listing Term will automatically renew at the end of the then-current Listing Term for another six-month term unless the applicable Seller notifies Broker.xxx in writing by email to sales@broker.xxx no later than 30-days before the end of the then-current Listing Term that it wants to cancel the automatic renewal. Users acknowledge that they cannot cancel or otherwise terminate the Listing Term except as provided in this agreement.
7.3 Sellers acknowledge that Broker.xxx will be the sole and exclusive listing agent for the Domain Name or the Business during the Listing Term and that the Domain Name or the Business may only be sold by and through Broker.xxx during the Listing Term. Seller must not, directly or indirectly, list, solicit offers, or try to sell its Domain Name or Business using any other service, person, or agent for the duration of the Listing Term. Seller acknowledges that Broker.xxx may syndicate its listing of a Seller’s Domain Name or Business on third-party websites.
7.4 During the Listing Term, Seller will continue to operate and maintain the Domain Name or the Business in the same manner in which it was operated and maintained before the Listing Term, including taking all actions necessary to retain the Domain Name or Business value, which may include continued marketing efforts, advertising expenses, customer service, maintaining third-party links, and maintaining other traffic, revenue, distribution, or referral source, if applicable. Seller will not take any actions outside of its normal business practices or that would otherwise impair or impede the transfer of the Assets or the value of the Assets throughout the Listing Term.
7.5 During the Listing Term, Seller must maintain accurate and up-to-date business records and provide them to Broker.xxx in a timely manner on request.
7.6 Broker.xxx will review and update the Listing Price periodically based on consultation with Seller. Seller will timely respond to Broker.xxx’s communications regarding updated Listing Prices.
8. The Listing Price is an Offer to Sell and Sellers Have Accepted Offers at the Listing Price; Purchase Price
8.1 By agreeing to the Listing Price and having your Domain Name or Business listed, Seller is expressly offering to sell the Domain Name or the Business and Assets at the Listing Price, as updated.
8.2 Seller is deemed to have accepted an offer that is all cash in a single lump sum payment at the Listing Price.
8.3 Broker.xxx will communicate all below Listing Price offers to Seller. If Seller accepts the below Listing Price offer, Seller’s acceptance is incorporated into this agreement as if fully stated in this agreement.
8.4 The “Purchase Price” is the total consideration paid in connection with the sale of the Assets, not including inventory costs, if any.
9. Nondisclosure; Unlocking the Details Related to a Domain Name or Business Listed for Sale; Liquidated Damages
9.1 Broker.xxx only discloses non-public information relating to a specific Domain Name or Business after a User has “Unlocked” that information by consenting to this agreement and following the process to Unlock the Domain Name or Business as displayed on the Website, which may be amended from time to time, which generally includes a process to submit a payment to Broker.xxx. A User is required to specifically Unlock each Domain Name or Business it is interested in buying. Domain Names or Businesses that a User or Buyer has unlocked are collectively referred to as the Unlocked Businesses.
9.2 A Buyer will be provided Confidential Information only after the Domain Name or Business has been Unlocked. “Confidential Information” means non-public, proprietary information revealed by Broker.xxx or Seller of an applicable Domain Name or Business listing (whether in writing, orally, or by any other means) including (a) information expressly marked or disclosed as confidential; (b) all forms and types of financial, traffic, user, and other business information; and (c) all details relating to the Assets, Broker.xxx, or the Seller of an applicable Domain Name or Business listing, including the relevant URL, the Seller’s profits and losses or balance statement, Seller’s contact information, and any other information related to the Assets or Business. This provision is intended to be broadly construed so that all non-public information obtained by a User or Buyer will be considered Confidential Information.
9.3 Confidential Information will at all times be, and will at all times remain, the property of the disclosing party and all applicable rights, including all intellectual property rights, rights of publicity, or other personal or proprietary rights embodied in the Confidential Information will remain in the disclosing party. Buyer will treat all that Confidential Information as confidential and will not disclose that Confidential Information to any third party, except that a Buyer may disclose the Confidential Information to its Representatives (as defined below) who have a need to know that information in connection with the evaluation of the Assets. A Buyer will use at least the same degree of care to avoid disclosure of that Confidential Information as it would use with respect to its own confidential information of like importance.
9.4 A Buyer must not use Confidential Information for any purpose other than to evaluate the Domain Name or the Business and Assets for purchase. A Buyer will prohibit all third parties that come into possession of the Confidential Information because of their access to it from using it for any purpose other than to evaluate the Domain Name or the Business for purchase, including agents, financial advisors, employees, contractors, officers, and directors (collectively, “Representatives”). Buyer is prohibited from using the Confidential Information to circumvent Broker.xxx or its Services in any manner, including by making direct offers to buy the Domain Name or the Business or Assets from Seller outside of Broker.xxx’s terms, process, or knowledge. Buyer is strictly prohibited from using the Confidential Information to obtain non-public information from a competitor, to form a competing business, to register domain names pertaining or related to the Domain Name or the Assets or Business, to obtain keyword lists, user lists, or traffic numbers, or to take any other actions by which Buyer or any other party under Buyer’s ownership or control uses the Confidential Information for purposes outside of the evaluation of the Domain Name or the Business for purchase.
9.5 If a Buyer is required by law to disclose any Confidential Information, the Buyer will cooperate with the disclosing party and, when possible under statutory or regulatory authority, provide the disclosing party with prompt, written notice so that the disclosing party may seek a protective order, prevent against the disclosure of Confidential Information, or waive compliance with the provisions of this agreement.
9.6 Buyers acknowledge that Sellers will list Domains Names or Businesses for sale through Broker.xxx based on trust that Seller’s Confidential Information will not be misappropriated and that the Buyer’s actions to breach that trust will cause Broker.xxx damages the precise amount of which may be extremely difficult or impracticable to determine. Accordingly, if Broker.xxx files an action to enforce the restrictions imposed by this section 9, it will be entitled to the entry of an injunction without the necessity of havening to post a bond, which injunction will remain in place pending completion of any action begun. Notwithstanding Broker.xxx’s right to obtain an injunction, Broker.xxx will also be entitled to recover $25,000 in liquidated damages against the breaching party plus Broker.xxx’s costs and attorneys’ fees in association with the breach.
10. Process and Procedure for Making Offers to Buy a Domain Name or Business
10.1 Buyer acknowledges that all offers to buy Business or Assets listed on Broker.xxx’s Website or through Broker.xxx’s Services are required to be communicated in writing and through Broker.xxx that that Broker.xxx is specifically on notice and aware of all pending offers. Buyer and Seller acknowledge that the purpose of this provision is to avoid confusion in the sales process, including the avoidance of a Seller agreeing to sell the Assets to multiple parties.
10.2 Buyer’s offer to buy and Seller’s acceptance to sell a Domain Name or Business is incorporated into this agreement as if fully stated here. Buyer and Seller acknowledge that they are obligated to fulfill the purchase of the Domain Name or the Business if its offer is accepted, including paying the Purchase Price, completing the Migration Process, and completing all other obligations of this agreement.
10.3 If two or more Buyers offer the full Listing Price for the Domain Name or the Business, the Buyer that first completes a wire transfer of the Purchase Price to Broker.xxx is deemed the buyer of the Domain Name or the Business and Assets. The wire transfer is complete when it is received and cleared by Broker.xxx’s bank or other financial institution or the bank or other financial institution of Broker.xxx’s agent.
10.4 If a below Listing Price offer is made on one of the Buyer’s Unlocked Businesses, Broker.xxx will notify Buyer and provide Buyer with a reasonable time to match that offer in writing.
10.5 Broker.xxx does not charge Buyer any wire or transfer fees, however, certain fees and expenses may be charged by Buyer’s financial institution and are solely Buyer’s responsibility.
11. Buyer’s Responsibility to Investigate and Perform Due Diligence. Buyer acknowledges it is solely responsible for investigating all aspects of any purchase of Assets, including independently reviewing financial information, market circumstances, operational issues, supplier contacts, and other factors pertaining to the overall functioning of the Business. Buyer is advised to not only rely on information provided by Broker.xxx, but to supplement that information with its own investigation, including asking the Seller specific questions regarding the Domain Name or the Business and the information disclosed in the sales process. Broker.xxx is not making any representation or guaranty regarding the future performance of any Asset or Business. Users must complete all due diligence before the Migration Period.
12. Purchase Agreement. A Buyer and Seller that have reached terms for the sale of a Domain Name or Business have the option to enter into a more specific purchase agreement (“Custom APA”) to govern that transaction. If the Custom APA conflicts with any term of this agreement, the Custom APA will control. But all other terms of this agreement are not superseded or amended by the Custom APA.
13. Buy It Now Listings. Broker.xxx may present certain Listings with the ability to “Buy It Now.”
13.1 A Seller that agrees to list their Domain Name or Business for sale through a Buy It Now option is deemed to have agreed to sell the Domain Name or the Business and Assets for the stated Buy It Now Listing Price.
13.2 A Buyer that chooses to buy a Business through a Buy It Now option must follow the on-screen prompts to complete the process, including providing payment of the full Listing Price to Broker.xxx. A Buyer completing this process is obligated to fulfill the purchase, including the payment of the Purchase Price, completing the Migration Process, and completing all other obligations of this agreement.
14. Payment of the Purchase Price; Buyer Obtains Title at the Sale Date; Reconciliation
14.1 Based on the offer made by the Buyer and accepted by the Seller, the Buyer is required to deposit the Purchase Price, or a certain amount of the Purchase Price, with Broker.xxx before any transfer of the Assets or Business. Title to the Domain Name or the Assets and Business will pass to Buyer when, after the Buyer and Seller have agreed to the sale terms, Buyer has deposited the agreed amount of the Purchase Price with Broker.xxx (“Sale Date”).
14.2 All revenues associated with the Business or the Domain Name before the Sale Date is the Seller’s property.
14.3 All revenues associated with the Business or the Domain Name on and after the Sale Date is the Buyer’s property, on condition that a Successful Inspection Period is achieved.
14.4 The Buyer and Seller acknowledge that pre-Sale Date revenue will not be paid out by the applicable platform until Buyer is in possession of the Assets (“Seller’s Residual Revenue”). Buyer must remit Seller’s Residual Revenue to Seller. On the other hand, post-Sale Date revenue may be paid out or otherwise accumulated while Seller possesses the Assets (“Buyer’s Residual Revenue”). Seller must remit Buyer’s Residual Revenue to Buyer.
15. Sale of Assets; Limitations
15.1 In consideration of the Purchase Price and subject to this agreement, the Seller will hereby assign the Buyer, and the Buyer hereby buys from the Seller, all interest in the Domain Name or the Assets related to the Business.
15.2 This is an asset sale only. The Assets are the only assets that are the subject of this agreement, and there are no assets that are the subject of the sale and purchase under this agreement other than the Assets. Without limiting the foregoing, and by way of example and not limitation, this agreement specifically excludes the following assets: (a) Seller’s cash, cash equivalents, and investments; (b) Seller’s minute books, stock records, and company seals, and all shares of capital stock held in treasury; (c) all insurance policies and rights under it; (d) personnel records and other records that are required by law to be retained by Seller; and (e) other items specifically excluded in the sale as transmitted in writing and conveyed to Buyer. Buyer is not assuming, and will not be deemed to have assumed, any liabilities or obligations of Seller of any kind or nature (whether contractual, statutory, or otherwise).
16. Payment of Broker.xxx’s Commission
16.1 In exchange for Broker.xxx’s Services, Seller will pay Broker.xxx a commission (“Commission”) of a certain percentage of the Purchase Price for a Domain Name or Business on the following schedule:
· 19% on the Purchase Price amount under $100,000; plus
· 10% on the Purchase Price above $100,000 and below $1,000,000; plus
· 5% on the Purchase Price above $1,000,000.
16.2 Seller will pay Broker.xxx’s Commission on any of the following events:
(a) Seller sells its Assets or Business during the Listing Term, whether using Broker.xxx’s Services or not;
(b) During the Listing Term, Broker.xxx presents a ready, willing, and able buyer for the sale of the Assets or Business at the Listing Price;
(c) During the Listing Term, Seller fails to consummate the sale of Assets or Business after agreeing to sell the Assets or Business;
(d) Seller breaches a term of this agreement that impairs Broker.xxx’s ability to market, advertise, or sell the Assets; or
(e) For a period of one year after expiration of the Listing Term, the Seller sells, transfers, or otherwise assigns the Assets or Business to a person or entity that was introduced to the Seller or became aware of the Seller’s Assets or Business through Broker.xxx’s Services.
For the purposes of determining the Commission owed to Broker.xxx, the Listing Price will be the highest Listing Price in place on the occurrence of any of the events listed in subparts (a)–(e) above.
16.3 The Buyer is not separately responsible for paying Broker.xxx’s Commission if the purchase of Assets is consummated. But the Buyer will pay Broker.xxx’s Commission if the Buyer, after reaching an agreement for the purchase of the Assets, fails to consummate the transaction or otherwise breaches this agreement.
17. Migration Process
17.1 After the Sale Date, the process to move the Assets to the Buyer will begin (“Migration Process”). Users acknowledge that the Migration Process typically takes two to eight weeks to complete but could take substantially longer. Users acknowledge that Broker.xxx cannot guarantee a specific timeframe to complete the Migration Process.
17.2 During the Migration Process, the Buyer and the Seller will timely communicate with each other and Broker.xxx to facilitate the transfer of the Assets into the Buyer’s possession and to operate the Business or the Domain Name in the same manner in which it was operated before the Listing.
17.3 During the Migration Process, the Buyer will not make any material changes to the Domain Name or the Business, including increasing expenses, without the Seller’s prior written consent. This includes making large price adjustments to products or services, firing employees or contractors, altering paid advertisement campaigns, failing to pay vendors or suppliers, altering supplier relationships, or changing payment gateways. Breach of this provision causes the Buyer to automatically waive the Inspection Period.
17.4 The Migration Process is complete when the Buyer or Broker.xxx, in its sole discretion and in good faith, determines that a sufficient part of the Assets have been transferred to the Buyer so that the Buyer can fairly assess the associated revenue during the Inspection Period (“Completed Migration”). It is possible that some part of the Assets will continue to be transferred to the Buyer after the Completed Migration.
17.5 Broker.xxx may cancel any Migration Process and terminate the sale if either the Seller or Buyer has breached this agreement. If Broker.xxx determines that such a cancellation is required, Broker.xxx will cancel the sale, the Assets will be returned to the Seller, and the Purchase Price will be returned to the Buyer. On this termination, the Seller will be entitled to the net profit associated with the Domain Name or the Business after the Sale Date. The parties will cooperate to complete these actions.
17.6 A User’s failure to complete the Migration Process is a material breach of the agreement.
17.7 User will provide Broker.xxx all necessary information on request to facilitate the Migration Process.
17.8 If the Buyer’s purchase includes any type of delayed payment of the Purchase Price, including any type of “earn out” payment, then the Seller will transfer possession of the Domain Name to Broker.xxx and Broker.xxx will retain possession of the Domain Name until the full Purchase Price is timely paid. During this time, the Buyer will indemnify and hold harmless Broker.xxx from all use of the Domain Name and all expenses and attorney fees arising out of or related to this provision. On the Buyer’s timely payment of the Purchase Price, Broker.xxx will transfer the Domain Name to the Buyer. On termination of this agreement or Default, Broker.xxx will transfer the Domain Name to the Seller. In case of a dispute between the Buyer and the Seller regarding possession of the Domain Name, Broker.xxx is permitted to (i) transfer the Domain Name to an independent third party or court of proper jurisdiction to hold the Domain Name pending an outcome of the dispute or (ii) continue to hold the Domain Name until the Buyer and the Seller jointly instruct Broker.xxx to act regarding the release of the Domain Name or until a lawful court order from a court of proper jurisdiction otherwise provides.
17.9 If the Buyer’s purchase includes any type of delayed payment of the Purchase Price, including any type of “earn out” payment, the Buyer must not take any actions to circumvent or adversely affect the Seller’s ability to receive the deferred payment. The Buyer must operate the Domain Name or the Business in such a manner as to protect the Seller’s ability to receive the deferred payments including devoting sufficient resources to permit it to operate with a reasonable likelihood of success. The Buyer must not transfer, assign, or otherwise convey the material aspects of the Domain Name or the Business or its Assets without the Seller’s prior written consent.
18. Inspection Period
18.1 The Buyer will have a period of 14 days from the Completed Migration to inspect the operation of the Assets (“Inspection Period”) on the terms stated below.
18.2 During the Inspection Period, the Buyer will operate the Assets in a manner as close as possible to the Seller’s operation and must not make any material changes, including addition of new expenses, without the Seller’s prior written consent. Breach of this provision causes the Buyer to automatically waive the Inspection Period.
18.3 Broker.xxx may cancel any Inspection Period and terminate the sale if either the Seller or the Buyer has breached this agreement. If Broker.xxx determines that such a cancellation is required, Broker.xxx will cancel the sale, the Assets will be returned to Seller, and the Purchase Price will be returned to the Buyer. On this termination, the Seller will be entitled to the net profit associated with the Domain Name or the Business after the Sale Date. The parties will cooperate to complete these actions.
18.4 The Buyer may request termination of this agreement if, consistent with this agreement, the Buyer believes a Substantial Deviation exists.
18.5 A “Substantial Deviation” exists when the Inspection Period Revenue is less than 50% of the prorated Average Monthly Revenue. If the Inspection Period Revenue is 50% or more of the prorated Average Monthly Revenue, the Buyer has no right to request to terminate this agreement.
18.6 “Inspection Period Revenue” is defined as the Assets’ revenue during the Inspection Period.
18.7 “Average Monthly Revenue” is defined as the most current information regarding the Assets’ average monthly revenue made available on Broker.xxx’s Website.
18.8 A “Successful Inspection Period” is an Inspection Period in which there is no Substantial Deviation.
18.9 To request termination of this agreement based on a Substantial Deviation, the Buyer must, within the Inspection Period: (a) notify Broker.xxx in writing of the request to terminate this agreement within the Inspection Period at support@broker.xxx; and (b) provide evidence of the Substantial Deviation and Inspection Period Revenue through verifiable screenshots or by providing Broker.xxx access to the Assets’ raw financial data in a form acceptable to Broker.xxx.
18.10 If the Buyer requests termination of this agreement consistent with the provisions above, Broker.xxx will investigate the matter. The Seller and the Buyer understand that this investigation could take two to eight weeks to complete or longer depending on the circumstances (“Investigation Period”). Broker.xxx may require additional information from the Buyer or the Seller to conduct its investigation and the Buyer and the Seller agree to comply with those requests. Broker.xxx retains the sole discretion to determine the presence or absence of a Substantial Deviation.
18.11 If Broker.xxx confirms the presence of a Substantial Deviation, Broker.xxx will cancel the sale, the Assets will be returned to the Seller, and the Purchase Price will be returned to the Buyer. On this termination, the Seller will be entitled to all revenue associated with the Domain Name or the Business, including revenue after the Sale Date. The Buyer and the Seller will cooperate to complete these actions.
18.12 If Broker.xxx confirms the absence of a Substantial Deviation, the sale will continue, and the Inspection Period will be deemed to have expired.
18.13 If the Buyer fails to provide timely written notification of its request to terminate this agreement, the Buyer is deemed to have freely and voluntarily waived all contingencies in connection with the purchase of the Assets, including any discrepancies, fluctuations, or changes in the performance of the Assets and specifically its gross revenue, net revenue, expenses, traffic, and other metrics of performance, including any discrepancies, fluctuations, or changes in the performance of the Assets during the Migration Process or during the Inspection Period or both.
18.14 The Buyer may waive the Inspection Period by notifying Broker.xxx of its intent to waive the Inspection Period and authorization to release the Purchase Price to the Seller in writing.
19. Release of the Purchase Price to the Seller
19.1 On condition that the Seller has complied with this agreement, including the Verification Process below, within a reasonable time after a Successful Inspection Period, Broker.xxx will release the Purchase Price, or the applicable part of it, paid by the Buyer to the Seller, less Broker.xxx’s Commission.
19.2 Before the release of any part of the Purchase Price, the Seller is required to present Broker.xxx with verifiable photo identification through pictures or videos to confirm the Seller’s identity (“Verification Process”). The Identification must be government issued, including a driver’s license or passport. This identification is subject to Broker.xxx’s review in their sole discretion. Broker.xxx reserves the right to withhold payment of the Purchase Price to any Seller that fails to adhere to this provision, determined in Broker.xxx’s sole discretion.
19.3 The Seller will complete the Verification Process and respond to all questions pertaining to the release of the Purchase Price within five days of the expiration of the Inspection Period.
20. Buyer Default
20.1 The following will be deemed an event of Buyer’s Default: (a) Buyer fails to timely complete any required payments in connection with the purchase, including paying the Purchase Price, or any part of it, or any required payment for Inventory; or (b) if before completing the payment of the Purchase Price, the Buyer or another person files a petition for relief for the Buyer under the bankruptcy laws, or makes an assignment for the benefit of creditors for the Buyer, or if a receiver of any property of the Buyer is appointed in any action, suit, or proceeding by or against the Buyer, or if the Buyer admits in writing to any creditor or to the Buyer that it is insolvent, or if the Buyer’s interest in the Assets is sold under execution or other legal process.
20.2 On the occurrence of an event of the Buyer’s Default, the Seller may terminate the agreement and is entitled to full possession of the Assets. The Seller may make its election to terminate known to the Buyer by delivery of a notice of termination to the Buyer and a notice to Broker.xxx to transfer any of the Assets to the Seller, if Broker.xxx is in possession of any Assets. That termination will be effective immediately, and the Seller may forthwith begin an action in summary proceedings to recover possession of the Assets. The Buyer will fully comply and cooperate to transfer the Assets to the Seller. Further, the Buyer and the Seller acknowledge that Broker.xxx is not liable in any way for its transfer of any Assets to the Seller consistent with this agreement. Broker.xxx is not required to refund any part of its Commission on a Default.
20.3 Despite anything contained in this agreement to the contrary, on the occurrence of an event of default, neither the Seller nor Broker.xxx will exercise any right or remedy under any provision of this Agreement or applicable law unless: (a) the Seller or Broker.xxx has given written notice of it to the Buyer, and (b) the Buyer has failed to cure the event of default within 15 days.
21. Remedies for Material Breach. The Buyer, the Seller, and Broker.xxx acknowledge that monetary damages would not be a sufficient remedy for any breach of this agreement and that, in addition to monetary damages and all other rights and remedies available at law or under this agreement, the non-breaching party, including Broker.xxx, is entitled to seek equitable relief, including injunctive relief, specific performance, or the granting of an immediate restraining order or preliminary injunction (without posting bond) enjoining any such breach or reasonably anticipated breach as a remedy. These equitable remedies are not the exclusive remedies available for breach of this agreement but will be in addition to all other remedies available at law or equity.
22. Assumption of Risk. The Buyer and the Seller acknowledge that, before the Sale Date, the Seller assumes all risks of destruction, loss, or damage to the Assets or the risk of any casualty, including any liability arising out of ownership of the Assets, excluding any of the foregoing caused by the Buyer’s negligence. The Buyer assumes all risk on and after the Sale Date.
23. Non-Competition. Unless otherwise agreed, the Seller will not directly or indirectly:
23.1 Engage in or in any way become interested in, directly or indirectly, as an owner, partner, joint venturer, investor, shareholder, member, or otherwise, in any business, trade, or operation that competes with the Business for a period of three years of the Sale Date, anywhere in the world, except that the Seller may invest in a publicly owned company, on condition that the investment does not constitute more than one percent of the voting securities of any public company; or
23.2 For a period of three years, accept employment with or render services to a third party in a competing business as a director, officer, agent, employee, or consultant (with or without compensation).
24. Confidentiality. From and after the Sale Date, the Seller must not disclose any information concerning the Domain Name or the Business, except if the Seller can show that that information (a) is generally available to and known by the public through no fault of Seller (b) is lawfully acquired by Seller after the Sale Date from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation.
25. No-disparaging. During this agreement and for two years after its termination, no User will take any action that is intended, or would reasonably be expected, to harm Broker.xxx or its reputation or that would reasonably be expected to lead to unwanted or unfavorable publicity to Broker.xxx. But nothing will prevent any User from making any truthful statement in connection with any legal proceeding or investigation by Broker.xxx or any government body.
26.1 Indemnification of Seller. The Buyer will indemnify the Seller from all liabilities arising out of the Buyer’s operation of the Assets on and after the Sale Date.
26.2 Indemnification of Buyer. The Seller will indemnify the Buyer from all liabilities arising out of the Seller’s operation of the Assets before the Sale Date.
26.3 Indemnification of Broker.xxx. Each User will indemnify, defend, and hold harmless Broker.xxx from and against all claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arising out of or related to that User’s (a) use of the Broker.xxx Website; (b) use of Broker.xxx’s Services; (c) the review and listing of any Assets or Business for sale; (d) the transfer and migration of the Assets, including access to accounts associated with the transfer and migration of the Assets; (e) the violation of this agreement; (f) the violation of the rights of third parties, including rights of privacy or publicity or intellectual property rights; and (g) the violation of any law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international. The obligation to defend and indemnify Broker.xxx will not provide you with the ability or right to control Broker.xxx’s defense, and Broker.xxx reserves the right to control its defense, including the choice to litigate or settle and the choice of counsel.
27. Disclaimer of Warranty and Limitation of Liability. Except for Broker.xxx’s obligation to release the Purchase Price or its gross negligence, Users acknowledge that the Services are provided “as is” and without warranty of any kind, including warranties of quality, accuracy, merchantability, fitness for a particular purpose, security, non-infringement, and title. Broker.xxx will not be held responsible or liable for any claims, damages, judgments, charges, or fees arising out of or related to your use of the Services, including compensatory damages, consequential damages, special damages, incidental damages, punitive damages, exemplary damages, costs and attorneys’ fees, damages arising out of errors or omissions, and damages arising out of the unavailability of Broker.xxx’s Website or Services or other downtime. You acknowledge that your use of the Services is at your sole risk and that Broker.xxx’s liability is limited to the amount that you paid to use the Website or Services or $1,000, whichever is less.
28. Broker Disclaimer. Unless otherwise provided, all sales are final and there are no refunds. Earnings and traffic may decline due to search rankings, technology providers, service providers, or other updates or rule changes, increased competition, account suspension or termination, the Buyer’s mismanagement, and other factors. The Buyer and the Seller acknowledge that Broker.xxx is not making any guarantees or warranties, written or implied, of the future performance of the Assets. The Buyer specifically acknowledges that it assumes all risk in any purchase.
29. General
29.1 Opportunity to Retain Counsel and Enter into Custom Agreement. The Buyer and the Seller acknowledge that they have the option to retain legal counsel and draft and negotiate their own agreement to consummate the sale of the Domain Name or the Business.
29.2 Fair Market Value. The Buyer and the Seller each acknowledge that the Purchase Price represents fair market value.
29.3 Costs. All Users will pay their own expenses incurred with respect to this agreement.
29.4 Valid and Binding Agreement. This agreement represents a binding legal obligation and is enforceable according to its terms and binds and inures to the benefit of each User’s respective heirs, legal representatives, successors, and assigns.
29.5 Confidentiality. The Buyer and the Seller will maintain complete confidentiality regarding this agreement as it pertains to the purchase of a Domain Name or Business.
29.6 Waivers. A waiver by either the Buyer or the Seller of any provision of this agreement does not constitute a waiver of any other provision of this agreement.
29.7 No Third-Party Beneficiaries. Except as otherwise provided, this agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement. However, the provisions regarding Confidential Information and the Buyer’s obligations are intended to benefit the Seller.
29.8 Governing Law. Canadian federal law and the laws of the province of British Columbia govern all matters arising out of, or relating to the subject matter of, this agreement, including its validity, interpretation, construction, performance, and enforcement, without giving effect to its conflicts of law principles.
(a) Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief, (b) a dispute related to claims subject to indemnification under section 26, or (c) a suit to compel compliance with this section 29.9.
(b) Arbitration. The parties will settle any dispute arising out of or relating to the subject matter of this agreement, or the breach of it, by arbitration administered by ICDR Canada under its Canadian Arbitration Rules. The arbitrator, and not any court or agency, will have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this agreement, including any claim that any part of this agreement is void or voidable. A single arbitrator will preside over the arbitration and issue a final award on all issues submitted to the arbitrator. The arbitrator may grant any relief that would be available in a court, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will bind the parties, and any court of competent jurisdiction may enter it as a judgment. Arbitration will take place in Vancouver, British Columbia, and the language of the arbitration will be English. Subject to the prevailing party’s rights under section 29.9(d), the parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
(c) Jurisdiction and Venue. If a party brings any litigation proceeding authorized under section 29.9(a), that party will bring that proceeding only in the courts of competent jurisdiction located in Vancouver, British Columbia, Canada, and each party submit to the exclusive jurisdiction and venue of those courts for purposes of any proceeding. Each party waives any claim that any proceeding brought under this section 29.9(c) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
(d) Recovery of Expenses. In any proceedings between the parties arising out of, or relating to the subject matter of, this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 29.9(d), “prevailing party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
(e) Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
(f) Class Action Waiver. The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither you nor Broker.xxx will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
(g) Limited Time to Bring Claims. A party will not bring a claim arising out of or related to the subject matter of this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
29.10 Entire Agreement. This agreement constitutes the entire agreement of the parties concerning its subject matter. It supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the transactions contemplated in this agreement.
29.11 Severability. If any provision of this agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this agreement is invalid or unenforceable, but that by limiting that provision it would become valid and enforceable, then that provision will be deemed to be written, construed, and enforced as so limited.
29.12 Force Majeure. No party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this agreement, for any failure or delay in fulfilling or performing any term of this agreement when and to the extent that failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including: (1) acts of God; (2) flood, fire, earthquake, or explosion; (3) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (4) government order or law; (5) actions, embargoes, or blockades in effect on or after the date of this agreement; (6) action by any governmental authority; and (7) national or regional emergency; and (8) strikes, labor stoppages or slowdowns, or other industrial disturbances. The party suffering a Force Majeure event will give prompt notice to the other party, stating the period the occurrence is expected to continue, and will use diligent efforts to end the failure or delay and ensure the effects of that Force Majeure event are minimized.
29.13 Other Material Changes. Broker.xxx reserves the right (but not the obligation) to cancel a sale if there has been material changes outside the reasonable control of the Buyer or the Seller, including changes in commission structure or marketplace rules or regulations.
29.14 Further Assurances. The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
29.15 Electronic Signatures. Any affirmation, assent, or agreement you send through the Website in response to a prompt will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a mouse, keystroke, or other computer device, this action is the legal equivalent of your handwritten signature and binds you in the same way.
29.16 No Reliance. Each party acknowledges that in signing this agreement, that party does not rely and has not relied on any statement by the other party or its agents, except those statements contained in this agreement.
29.17 Permission to Send Emails to You. You grant Broker.xxx permission to email notices, advertisements, and other communications to you, including emails, advertisements, notices, and other communications containing adult oriented material, sexual content and language, and images of nudity unsuitable for minors. Your permission will continue until you ask Broker.xxx to remove you from its email list. For more information, please see the privacy policy.
29.18 Electronic Communications Not Private. Broker.xxx does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to Broker.xxx or from Broker.xxx as open communications readily accessible to the public. You should not use the Site to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Website may read all messages you send to the Website regardless of whether they are intended recipients.
29.19 Feedback. Broker.xxx encourages you to give feedback about Broker.xxx, the Services, or the Website. But Broker.xxx will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict Broker.xxx’ right to use, profit from, disclose, publish, or otherwise exploit any feedback, without paying you.
29.20 English Language. Broker.xxx has drafted this agreement in the English language. No translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in English.