MonthlyDN.com Terms of Service Agreement1. Service Agreement Overview:
This Agreement is by and between MonthlyDN having a place of business at 1440 Veteran Ave, Suite #527, Los Angeles, California (“MonthlyDN”) and you, your heirs, agents, successors and assigns (collectively, "You"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of (the "Service") and explains MonthlyDN's obligations to You and Your obligations to MonthlyDN.
This Agreement, along with any other or additional MonthlyDN policies applicable to the Service, as well as any modifications that may be made hereto, constitutes the complete and exclusive agreement between You and MonthlyDN relating to the Service. With respect to the Service, this Agreement supersedes all prior proposals, agreements, or other communications; provided that all MonthlyDN policies and agreements specific to use of MonthlyDN's other services and web sites shall apply or continue to apply with respect to such other services and/or web sites.
You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which MonthlyDN may establish from time to time.
In addition, You agree to be bound by the terms and conditions of this Agreement with respect to any use and/or transactions undertaken on Your behalf by anyone acting as Your agent or otherwise using Your account whether or not the transactions were in Your behalf. You acknowledge that MonthlyDN's acceptance of any request for price information and/or MonthlyDN's ratification of any domain sales contract, transfer agreement or other contract related to the use of the Service will take and/or is deemed to have taken place at MonthlyDN's offices located in the USA.
This Agreement may be updated by MonthlyDN at any time in MonthlyDN’s sole discretion. The amended Agreement will be posted on the Service website (the "Site"). Continued use of the Service after such updates shall signify Your agreement to be bound by such revised terms. Acceptance of this Agreement requires You to abide by the User Guidelines and any other MonthlyDN policies (the "Guidelines"), which explain the Site rules, as well as acceptable and unacceptable conduct by users. If You do not accept this Agreement, You are prohibited from using the Service.
2. Requirements for Usage & Registration
The use of the Service is limited to parties who can enter into and form legally binding contracts under applicable law. Minors and those under the age of 18 are prohibited from using the Service. MonthlyDN reserves the right to refuse use of the Service to anyone at any time for any reason without notice.
3. Use of MonthlyDN’s Site and Service
Prohibited Use: You may not engage in any data or e-mail mining, manipulate any portion of the Service, exceed Your limited access to the Service permitted by MonthlyDN or take any other action which is not expressly permitted in this Agreement or the Guidelines.
4. Offers & Purchasing of Domains:
Users making offers agree to complete an agreed transaction within 10 business days of receiving an Accepted offer. MonthlyDN has the right (without limiting its other rights or remedies) to cancel any offer or offer in process at any time, if either the Buyer or Seller is deemed to be non-responsive in the transaction process. In any such event, in MonthlyDN’s sole discretion, the domain may be re-listed and sold to another party. If no agreement is reached between the Bidder (“Buyer”) and Seller, MonthlyDN may extend the reach of the bidding pool to subservient and other bidders for the domain at issue. Needless to say, non-payment for a domain won buy a Buyer is grounds for banning such a user or his agents and representatives, from utilizing MonthlyDN. It is agreed and understood that the responsibility for payment rests in the hands of the Buyer.
Manipulating Offers: Offer manipulation in any form, and for any reason is strictly prohibited and MonthlyDN hereby puts participants of such behavior on notice that such practices may be violative of criminal law, and MonthlyDN may make relevant authorities aware of such practices.
5. Listing/Selling/Buying:
MonthlyDN will contact you when and if your domains are approved to be sold using the MonthlyDN Service. MonthlyDN and the Site serves as a trading platform to allow users to offer to sell and buy domain names, complete web sites and content, and/or web-based businesses (collectively, "Domains"). MonthlyDN only gets involved in a resulting transaction to collect a fee for Services, except as otherwise specified in this Agreement or as otherwise agreed by all parties.
In the event that a Seller and Buyer negotiate an agreement for the purchase and sale of a Domain via the Service, MonthlyDN reserves the right (but shall not have the obligation) to require that the Buyer and Seller execute a standard purchase and sale agreement supplied by MonthlyDN. In addition, Buyer and Seller agree that the purchase and sale transaction shall be managed by MonthlyDN in accordance with the terms of MonthlyDN's Domain Transfer and Escrow Services as described below.
Should the registration of a Domain that is the subject of an Accepted Offer be in risk of expiring with its relevant domain registrar, or if the expiration date lies within the next sixty (60) days from the date of an Accepted Offer, Seller agrees to renew the Domain registration and is solely responsible for any costs or fees associated with such renewal. Buyer and Seller are each respectively responsible for any related fees charged by his/her registrar and/or service provider. Subject to Seller's renewal obligations noted above, Buyer understands that following transfer of the Domain to Buyer, Buyer shall be solely responsible for renewing the domain name and any costs and fees associated with such renewal.
6. Rules Regarding Listing Domains:
The following Domain listing requirements and obligations apply to your use of the Service:
(a) Domain names are the result of, and are subject to all of the conditions, limitations, and restrictions contained in, domain name registration agreements between the Seller and a third-party domain name registrar or other service provider. As such, the transferability of domain name registration may be limited, prohibited, or otherwise subject to conditions imposed by the domain name registrar or service provider. Subject to and without limiting Seller's obligations and representations herein, nothing in this Agreement or on the Site shall be construed as a representation by MonthlyDN that the Seller possesses any rights to a Domain beyond those specified in the Seller's agreement with the relevant domain name registrar or service provider.
(b) As a Seller of a Domain listed on the Service, You represent and warrant that: (i) You have registered the domain name with the appropriate domain name registrar or other registration authority; (ii) Your registration of the domain name that you offer for sale is current and not subject to deletion, cancellation, rescission, or deactivation by the applicable domain name registrar or other registration authority and was not obtained by fraud, misrepresentation or other improper means; (iii) You have not taken any action that would impair Your ability or right to transfer the domain name registration or any other aspect of the Domain and no such action has been taken against You; (iv) the Domain does not and has not been used in such a manner as to infringe the rights of any third party, including, but not limited to, trademark, copyrights, patent rights or naming or publicity rights; (v) the Domain is not the subject of any legal disputes or proceedings challenging Your right to register or use the Domain; (vi) You will accurately describe the domain’s history; (vii) You own and have the right to sell the domain name and other content, if any, listed as part of your Domain; and (viii) if Your offer to sell and transfer the Domain is accepted, You will complete the transaction with a ready, willing, and able Buyer. You will not under any circumstances list or transfer the rights to any Domain that You do not have sufficient rights to transfer or that is illegal to transfer under applicable law. For the avoidance of doubt, the representations and warranties set forth in this paragraph are made for the benefit of both MonthlyDN and Buyer, each of which may take appropriate action in the event of a breach of any of the foregoing representations and warranties by Seller.
(c) As Seller, You agree not to list any Domains which violate this Agreement and/or MonthlyDN Guidelines. MonthlyDN may refuse to list, or remove the listing for, any Domain which, in MonthlyDN's sole discretion, may potentially infringe or violate the proprietary rights of any third person or any other Domain, or which in MonthlyDN's sole discretion, is inflammatory, offensive, inconsistent with MonthlyDN's general policies or Guidelines, or otherwise may infringe any proprietary right of any third party.
(d) As Seller of a Domain, You agree not to enter an offer for Your own Domain and not to instruct other persons to do so. In addition, any user manipulation of Domain listing statistics is prohibited, including, but not limited to, manipulating or otherwise falsely inflating traffic statistics represented to Buyer during the course of negotiation or those which are measured and displayed by MonthlyDN.
(e) You will not Yourself, nor will You allow or enable another, to directly or indirectly interfere or attempt to interfere with the operations of the Site or the Service.
7. Minimum Offers & Set Prices;
If the Seller does not state a Buy Now price, the Domain listing serves as an invitation for Buyers to submit an offer for the purchase and sale of the Domain that is the subject of the Domain listing, but Sellers are not required to accept any such offers.
If the Seller states a minimum offer, the Domain listing serves as an invitation for Buyers to submit an offer equal to or in excess of the stated amount for the purchase and sale of the Domain that is the subject of the Domain listing, but Sellers are not required to accept any such offers.
8. Escrow Service For Transferring Domains.
Description of Service
MonthlyDN will assist the Buyer and Seller in the use of a third-party Escrow service for the payment and transfer of a Domain sold through MonthlyDN. MonthlyDN assumes no responsibility for any part of the Escrow process.
9. Costs & Fees
Seller agrees to pay MonthlyDN 4% of the final sales price of any Domain Name sold through MonthlyDN.
10. Transferring Your Domain
Reaching an Agreement
In the event of an Accepted Offer between the Buyer and the Seller, MonthlyDN reserves the right to provide and require execution of a separate online purchase and sale contract for the Buyer and Seller with respect to the sale of the Domain that was the subject of their negotiation. Depending upon the processing status of the transaction, the other contractual partner's respective data may be made anonymous until the transaction is complete. Should either party fail to meet to their obligations under this Agreement, the identity of the breaching user may be provided to the injured user upon request only if MonthlyDN allows such a request.
Transfer of Domain
Once an Accepted Offer has been received and reported to MonthlyDN, the Domain transfer process from the former owner (the Seller) to the new owner (the Buyer) shall commence. MonthlyDN shall then instruct the Buyer and the Seller of the Domain as to the required steps and best practices involved in the technical Domain Name transfer process. A prompt and orderly transfer of the Domain can only be accomplished if MonthlyDN's instructions to the Buyer and Seller are strictly followed. As such, the Buyer and Seller are obligated to fully cooperate with each other and MonthlyDN, and failure to so cooperate may be considered by MonthlyDN as a breach of this Agreement.
Successful Transfer and Payment of Purchase Price
Upon successful transfer of the Domain to the Buyer, the payment of the amount owed to the Seller shall be remitted in a timely manner. A successful transfer of a Domain Name has taken place when the Buyer's registration data has been updated in the WHOIS database of the relevant domain name registry and the Buyer has assumed technical control of the Domain. In the event that MonthlyDN assumes temporary control of the Domain to be transferred on a discretionary basis, then a successful transfer may be considered to have been made at that moment in which MonthlyDN obtains control of the Domain and the Seller has lost control of this Domain.
Publication Rights
The Buyer and Seller agree that MonthlyDN shall have the right to publish the name of the domain name sold as well as the respective purchase price on the Site or in other places for reference purposes.
Penalties for Failing to Perform Obligations
In the case of a Failed Transfer, MonthlyDN reserves the right (without limiting any of its other rights or remedies) to collect any applicable commission fee from that party who has violated his/her obligation to cooperate.
MonthlyDN also reserves the right to collect any applicable commission fee from either party for the sale of any Domain listed in the Service but sold outside the Service if MonthlyDN determines that the Buyer and Seller were introduced in any way through the Service.
Certain Rights of MonthlyDN in the event of a Dispute between the Parties
11. Disclaimer
BUYER AND SELLER AGREE THAT MonthlyDN SHALL NOT BE LIABLE FOR ANY CLAIM FOR DAMAGES (INCLUDING ATTORNEY'S FEES) IN CONNECTION WITH, OR ORIGINATING OR ARISING FROM A FAILED TRANSFER ABSENT EVIDENCE OF INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF MonthlyDN.
The foregoing shall apply in all circumstances, including, but not limited to, those cases in which either the Buyer or Seller rejects the proper completion of transfer-related documents; impedes the execution of the transaction in another way; a Buyer, Seller or third party has committed any fraudulent act; or in the case where one of the contractual parties cannot be properly identified due to providing incorrect or misleading contact information.
INVESTIGATION/EXAMINATION OF THE DOMAIN 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 SELLER LISTING THE DOMAIN FOR SALE AND THE BUYER.
IT IS UNDERSTOOD THAT MonthlyDN MAY BECOME A SELLER AND/OR A BUYER IN ANY TRANSACTION, BUT IT SHALL NOT BE DEEMED TO HAVE ACQUIRED UNDER ANY CIRCUMSTANCES ANY LIABILITIES OF A BUYER OR SELLER HEREUNDER AND IT HAS NO DUTY TO VERIFY THAT THE DOMAIN BEING SOLD AND TRANSFERRED DOES 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.
BUYER AND SELLER AGREE THAT THE DOMAIN TRANSFER AND 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.
The MonthlyDN service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. MonthlyDN expressly disclaims any representation or warranty that the MonthlyDN service will be error-free, secure or uninterrupted. No oral advice or written information given by MonthlyDN its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. MonthlyDN and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.
12. Binding Arbitration & Disputes
In the event of a dispute between You and MonthlyDN or a third party regarding the ownership of any domain name which is subject to the rules of ICANN and the Uniform Domain-Name Dispute Resolution Policy ("UDRP"), You understand and agree that such dispute shall be adjudicated exclusively by binding arbitration pursuant to the rules of ICANN and the UDRP which are incorporate herein fully by reference. Further You agree understand and agree that You have waived rights to any claim for relief against MonthlyDN except that You may obtain transfer of a domain name pursuant to ICANN and UDRP, and that You specifically and expressly waive all claims for money damages of any type whatsoever, including but not limited to actual, statutory, punitive, compensatory or other damages arising out of any alleged violation of intellectual property rights of any type whatsoever, including but not limited to copyright and/or trademark infringement under the laws of any jurisdiction, and including but not limited to any business torts related to interference with contract, interference with prospective advantage, or otherwise. In the event that You fail to follow this provision, You understand and agree that MonthlyDN may recover from You all attorneys fees and costs incurred by MonthlyDN, including, but not limited to, those fees and costs incurred in order to obtain remand to arbitration as set forth above.
You agree further that any dispute You may have with MonthlyDN or that Buyer and Seller may have with each other (other than those set out in the paragraph above) shall be adjudicated exclusively by binding arbitration before the American Arbitration Association ("AAA") pursuant to the AAA Commercial Arbitration Rules and any such arbitration shall take place in Los Angeles, California. With respect to claims initiated by MonthlyDN, MonthlyDN shall have the right, but not the obligation, to arbitrate such claims before the AAA in New York, New York, and You agree to participate in any such arbitration.
13. Indemnity
You agree to defend, indemnify and hold harmless MonthlyDN and its parents, subsidiaries, successors, assigns, attorneys, contractors, agents, employees, officers, directors, shareholders, and affiliates (the "MonthlyDN Parties") from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any claim, action, proceeding or demand related to Your use (including Your agents, affiliates, or anyone acting on Your behalf) of the Site, Service and/or any Domain that You may list, request information about, purchase from, or sell through MonthlyDN. You further agree to indemnify and hold the MonthlyDN Parties harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that You have infringed a third person's copyright, trademark or proprietary or intellectual property right, or misappropriated a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should MonthlyDN be notified of a pending law suit, or receive notice of the filing of a law suit, MonthlyDN may seek a written confirmation from You concerning Your obligation to indemnify MonthlyDN. Your failure to provide such a confirmation may be considered a breach of this Agreement.
You agree that MonthlyDN shall have the right to participate in the defense of any such claim through counsel of its own choosing at Your expense. You agree to notify MonthlyDN of any such claim promptly in writing and to allow MonthlyDN to control the proceedings. You agree to cooperate fully with MonthlyDN during such proceedings.
You agree that You will not be entitled to a refund of any fees paid to MonthlyDN if, for any reason, MonthlyDN takes corrective action with respect to Your improper or illegal use of the Service.
14. Force Majeure & System Integrity
MonthlyDN does not guarantee the availability of the service and will not be liable for delays in its performance of the MonthlyDN Service caused by circumstances beyond MonthlyDN’s reasonable control, including acts of God, Electrical or Technical failures, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively “Force Majeure”). MonthlyDN will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.
15. Breach of The Agreement
Breach of this Agreement may result in the banning of any user from the site, at any time, without notice.
16. No Warranties
THE SITE AND SERVICE ARE PROVIDED "AS IS." MonthlyDN MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT OUR SERVICE(S) WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICE SHALL NOT CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. MonthlyDN DOES NOT GUARANTEE THE AVAILABILITY OR QUALITY OF THE SITE OR THE SERVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
17. Limitations of Liability
THE MonthlyDN PARTIES SHALL IN NO EVENT BE HELD LIABLE FOR ANY DAMAGES ARISING OUT OF USE OF THE SITE OR SERVICE AND/OR THE INABILITY TO USE THE SITE AND SERVICE, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THE MonthlyDN PARTIES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST PROFITS, COSTS OF COVER, INTERRUPTION OF BUSINESS, LOSS OF TECHNOLOGY OR LOST DATA, HOWEVER ARISING, WHETHER UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF MonthlyDN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MonthlyDN PARTIES' TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE SHALL BE LIMITED TO THE AMOUNT RECEIVED BY MonthlyDN PURSUANT TO THIS AGREEMENT (SPECIFICALLY EXCLUDING ANY AMOUNT THAT IS NOT RETAINED BY MonthlyDN) IN CONNECTION WITH THE SPECIFIC TRANSACTION AT ISSUE.
Agreement and participation in our Service requires Your acceptance to and agreement to abide by any additional Legal Disclaimers we may post on the Service.
18. Privacy
Agreement and participation in our Service requires Your acceptance to our Privacy Policy.
19. Release
Buyer and Seller agree not to sue and to release the MonthlyDN Parties should a dispute arise between the parties during a transaction. Specifically, Buyers and Sellers agree to release (and to take any further action necessary to effect such release) the MonthlyDN Parties from claims, demands, damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way associated with such disputes.
20. Compliance
Users are required to comply with all local, state and federal laws regarding use of our services. At MonthlyDN’s sole discretion to change this clause at any time and for any reason, to the extent required, if any, all auctions will take place in the State of New Hampshire, United States of America.
21. Copyright
The content of MonthlyDN owned and operated web sites is the property of MonthlyDN or the suppliers of the content and is protected by US and International copyright laws.
22. Representations of Buyer and Seller
The Seller represents and warrants to the Buyer, and the Buyer represents and warrants to the Seller, that he/she/it is authorized to agree to the terms set forth in this Agreement and to do all things necessary to complete the transaction contemplated by Accepted Offer, and that he/she/it will take all steps necessary to fulfill his/her/its obligations to the other party and to MonthlyDN.
23. Miscellaneous
The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. No waiver by MonthlyDN of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
24. Integration Clause
This Agreement (and any documents referred to in it) contains the whole agreement between the Parties relating to the transactions contemplated by this Agreement and supersedes all previous understandings and agreements between the Parties relating to these transactions. Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement and any documents referred to in it) made by or on behalf of any other Party or any other person whatsoever before the execution of this Agreement. Each Party waives all rights and remedies which, but for this Clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance, provided that nothing in this Clause shall limit or exclude any liability for willful misconduct or fraud
CONTACT INFORMATION
If you have any questions about this Terms of Use Agreement, or if you want to contact MonthlyDN for any reason, please direct all correspondence to:
Linton Investments, LLC. 1440 Veteran Ave. Suite #527 Los Angeles, CA 90024
or email: morgan(at)LintonInvestments.com. Copyright: Linton Investments, LLC
