Domain Name Lease Terms and Conditions

Version No. 20201214

  1. Introduction

    1. This Agreement: These Terms and Conditions and the Business Details together constitute a binding Domain Name Lease Agreement (this "Agreement") between the person identified in the Business Details as the owner of the Domain Name ("Owner") and the person identified in the Business Details as the Lessee of the Domain Name ("Lessee"). In this Agreement, Owner and Lessee are referenced collectively as the "Parties" and each individually as a "Party".
    2. Key Definitions: In this Agreement the following capitalized words have the following meanings, and other capitalized words have the meanings set out elsewhere in this Agreement: "Business Details" means the business details for this Agreement expressly agreed to by the Parties using the online procedures available through the Venture.com Domain Name Marketplace, as amended by the Parties from time to time in accordance with this Agreement; "Domain Name" means the internet domain name identified in the Business Details; "Effective Date" means the date this Agreement is effective as set out in the Business Details; "Email Address" means an email address that includes the Domain Name; "Intended Purpose" means the purpose for which Lessee will use the Domain Name, as described in the Business Details; "IP Rights" means all intellectual property rights of any nature and kind whatsoever (including trademark rights and copyright), whether or not registered or registrable, now or hereafter in force and effect throughout all or any part of the world; "Lessee’s Website" means a website that is owned and controlled solely by Lessee; "Service Provider" means the service provider appointed by Owner in accordance with this Agreement; and "Term" means the term of this Agreement.
    3. Business Details: The Parties acknowledge that after the Parties enter into this Agreement, the Venture.com Domain Name Marketplace will deliver or otherwise make available to the Parties a copy of these Terms and Conditions with the Business Details added to the table at the top of a copy of these Terms and Conditions.
    4. Electronic Contracting: The Parties acknowledge that this Lease Agreement is made by the Parties using online, electronic processes available through the Venture.com Domain Name Marketplace, and that no further action or formality (such as a signed paper contract) by the Parties is required for this Lease Agreement to be valid and binding on the Parties.

  2. Domain Name License and Use

    1. License: Subject to the provisions of this Agreement, Owner hereby grants to Lessee an exclusive, limited license during the Term to use the Domain Name in accordance with this Agreement (the "License"). The License is not sublicensable, not transferrable and not assignable except as expressly set out in section 12.5. For greater certainty, the License is limited to the use of the Domain Name as an internet domain name in accordance with the provisions of this Agreement, and does not include any license or authorization to use any trademark or other IP Rights relating to the Domain Name.
    2. Lessee’s Website/Email Addresses/Acceptable Use: Lessee will use the Domain Name for the sole purposes of identifying and resolving to Lessee’s Website and for use in Email Addresses, and not for any other purpose whatsoever. Lessee will ensure that, throughout the Term: Lessee’s Website (including all information and content available on or through Lessee’s Website) is used for the Intended Purpose only, and not for any other purpose whatsoever; and Email Addresses are used by Lessee and Lessee’s employees only and in connection with the Intended Purpose only, and not by any other person or for any other purpose whatsoever. Lessee will not use, or authorize or permit any other person to use, the Domain Name, Lessee’s Website or Email Addresses in any way or for any purpose that violates the Service Provider’s Acceptable Use Policy established and revised by the Service Provider from time to time. (Venture.com’s Acceptable Use Policy is online at www.venture.com/terms.)
    3. Legal Compliance: Lessee will at all times comply, and ensure that Lessee’s Website (including all information and other content available on or through Lessee’s Website) and each email sent using an Email Address complies, with all applicable laws in all relevant jurisdictions (including all laws relating to IP Rights, domain names and cybersquatting, personal information and data protection, consumer protection, business practices, advertising and marketing, commercial electronic messages and spam).
    4. No Infringement of Third Party Rights:Lessee will ensure that Lessee’s use of the Domain Name, Lessee’s Website (including all information and other content available on or through Lessee’s Website) and each email sent using an Email Address does not violate, infringe or misappropriate any rights (including IP Rights, privacy rights and personality rights) of any person.
    5. Domain Name Registration Agreement and Policies: Lessee will ensure that Lessee’s use of the Domain Name at all times complies with all agreements, terms of service and policies (including acceptable use policies and domain name dispute resolution policies) that govern the registration and use of the Domain Name as specified by the applicable domain name registry authority (e.g. ICANN) or the domain name registrar (e.g. Uniregistry or GoDaddy) for the Domain Name. Lessee acknowledges that copies of the applicable agreements, terms of service and policies are available to Lessee on the websites of the relevant domain name registry authority and domain name registrar.
    6. Suspension Event: Notwithstanding any other provision of this Agreement, if a Suspension Event occurs then Owner may immediately suspend or cause Service Partner to suspend Lessee’s use of the Domain Name by changing the Domain Name’s Name Server addresses so that the Domain Name resolves to a "Temporarily Out of Service" web page until Lessee cures the breach of this Agreement or otherwise resolves the circumstances that are the basis for the Suspension Event. "Suspension Event" means any of the following: Lessee fails to make any payment when due under this Agreement and fails to cure the breach (by making the required payment) within seven (7) days after Lessee’s receipt of notice of the breach from Owner; Lessee breaches any of sections 2.2, 2.3, 2.4, 2.5, 5.5 or 12.5 and fails to cure the breach within seven (7) days after receipt of notice of the breach from Owner; or there is a threatened or actual Domain Name Proceeding (defined in section 7.3(a)).

  3. Domain Name Registration and Escrow

    1. Registration: Owner is solely responsible for payment of all fees for the registration of the Domain Name throughout the Term. Subject to section 3.3, Owner in its discretion will select, and may change from time to time, the domain name registrar for the Domain Name.
    2. WHOIS and DNS Records
      1. Name Servers and MX Records: Subject to the provisions of this Agreement, on written request by Lessee, Owner will use commercially reasonable efforts to promptly (within ten (10) days) change (or instruct the Service Provider to change) the Name Server addresses and MX Records for the Domain Name to the addresses and host names specified in writing by Lessee. Lessee may request up to five (5) changes to Name Server addresses and MX Records during each year at no additional charge, and any additional change to Name Server addresses and MX Records during a year will be subject to a $100 service fee for each change.
      2. General: Subject to section 3.2(a), Owner in its discretion will determine the information that will be included in the WHOIS information and DNS Records for the Domain Name, including the name and contact information of the registered owner, the administrative contact and the technical contact of the Domain Name (each of which may be the name and contact information of Owner or Owner’s nominee or a privacy service).
    3. Escrow: Within ten (10) days after the Effective Date, Owner will cause the Domain Name to be held in a domain name registry account controlled by the Service Provider so that: the Service Provider has control over the Domain System records (including Name Server addresses and MX Records) for the Domain Name.
    4. Sale of Domain Name by Owner: Notwithstanding any other provision of this Agreement, Owner in its discretion may, without Lessee’s consent, transfer and assign sole beneficial ownership of the Domain Name to any person (the "New Owner") provided that Owner also assigns this Agreement to the New Owner and the New Owner expressly agrees in writing to accept Owner’s assignment of this Agreement and to be bound by this Agreement as if all references in this Agreement to "Owner" were references to the New Owner. Owner will give Lessee notice of any transfer and assignment of sole beneficial ownership of the Domain Name pursuant to this section 3.4 promptly after the transfer and assignment are completed, and after Owner gives that notice to Lessee Owner will no longer have any obligations or liabilities under this Agreement and will not be responsible or liable to Lessee for any acts, omissions or liabilities by or on behalf of the New Owner.

  4. Fees, Taxes and Payments

    1. Monthly Fee: In consideration for the License, Lessee will pay to Owner the applicable monthly fee (the "Monthly Fee") for each month during the Term. The Business Details set out the Monthly Fee as of the Effective Date. On the Effective Date, Lessee will pay for the initial stub period (until the end of the then-current month), prorated based on a 30-day month. On each anniversary of the Effective Date, the Monthly Fee will automatically increase by four and eight-tenths percent (4.8%).
    2. Taxes: The Monthly Fee and other amounts specified in this Agreement do not include any Taxes. Except as expressly set out in this Lease Agreement (including section 4.4(b)), Lessee is solely responsible and liable for, and will pay and remit promptly to the applicable governmental authority, all Taxes associated with, based on or due as a result of the Monthly Fee and other amounts payable under this Agreement. Without limiting the generality of the foregoing in this section 4.2, on request by Owner Lessee will pay to Owner all Taxes that Owner is required by law to collect from Lessee or to remit to a governmental authority for or on behalf of Lessee, including Canadian GST/HST. In this Agreement: "Canadian GST/HST" means a tax payable under Part IX of the Excise Tax Act (Canada) and any equivalent statute, as amended or replaced from time to time; and "Tax" means any federal, state, provincial or municipal sales, use, value-added, property, excise, import, foreign, withholding or other governmental tax, duty, charge, levy, fee, excise, tariff or assessment of any nature whatsoever now or hereafter imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto.
    3. Payments: Lessee will pay the Monthly Fee and all applicable Taxes (e.g. Canadian GST/HST) charged by Owner in advance on or before the first day of each month during the Term, except that if Lessee has breached this Agreement by failing to pay the Monthly Fee and all applicable Taxes charged by Owner when due then, on written notice from Owner, Lessee will be required to pay Monthly Fees plus applicable Taxes charged by Owner in advance for each three (3) month period during the Term. Lessee will make all payments under this Agreement using the commercially reasonable payment method (e.g. credit card or wire/electronic funds transfer) specified by or on behalf of Owner from time to time, and Lessee will be solely responsible and liable for all related payment or transaction fees (including currency conversion fees). An amount will be deemed not paid by Lessee unless and until immediately cleared funds have been unconditionally deposited to the designated bank account free and clear of all restrictions. All amounts specified in this Agreement are in U.S. currency and are payable in U.S. currency. Late payments will be subject to a penalty fee of $50. This penalty charge will be applied if Lessee's account has an unpaid lease fee as at 11:59 PM PST on the 3rd day of the month. Certain payments made by Lessee under this Agreement may be refundable in accordance with the Service Provider's Refund Policy. Owner (or the Service Provider on behalf of Owner) is not obligated to issue invoices for payments by Lessee under this Agreement, and the absence of an invoice, notice or demand will not relieve Lessee of the obligation to timely pay all amounts due and owing under this Agreement.
    4. Withholdings:
      1. General: Except to the extent required by applicable law and otherwise expressly set out in this Agreement, all amounts payable to or for the benefit of Owner under this Agreement (including an amount payable under section 7.4 or section 7.6(b)) are payable in full without any deduction or withholding, whether on account of Tax or otherwise, and if Lessee is prohibited by law from making a payment free of deductions or withholdings then, subject to including section 4.4(b), Lessee will pay to or for the benefit of Owner an additional amount (the "Gross-Up Amount") so that the actual amount received by or on behalf of Owner after the required deductions and withholdings and after payment of any additional Taxes or other charges due as a consequence of the payment of the Gross-Up Amount will equal the amount that would have been received by or on behalf of Owner if the deductions and withholdings were not required.
      2. Canadian and U.S. Withholdings: Owner in its discretion may remit, or cause the Service Provider to withhold and remit, to the relevant governmental authority amounts that Owner in its discretion considers appropriate on account of Canadian Withholding Tax or U.S. Withholding Tax applicable to Lessee’s payments of the Monthly Fee (collectively "Tax Remittances"). Lessee may obtain information about Tax Remittances (if any) from Service Provider or Owner. If Owner or Service Provider make a Tax Remittance, then: Lessee will not be required to pay a Gross-Up Amount in respect of the Tax Remittance; and Lessee will take account of the Tax Remittance when Lessee determines whether or not Lessee is required by applicable law to make a deduction or withholding from an amount payable to or for the benefit of Owner under this Agreement. In this Agreement: (1) "Canadian Withholding Tax" means any amount required to be withheld or deducted from a payment under Part XIII of the Canadian Income Tax Act, as amended or replaced from time to time; and (2) "U.S. Withholding Tax" means any amount required to be withheld or deducted from a payment under the US Internal Revenue Code of 1986, Subtitle A, Chapter 3, as amended or replaced from time to time.
    5. Tax Residence: Lessee represents and warrants that Lessee’s sole residence for Tax purposes is the country in which Lessee’s postal address set out in the Business Details is located. Lessee acknowledges that Owner will rely on that information to determine whether or not to make, or direct Service Provider to make, a Tax Remittance or charge and collect a Tax from Lessee. Lessee will immediately give Owner and the Service Provider notice of any change to the Lessee’s residence for Tax purposes.

  5. Other Matters

    1. Service Provider:
      1. General: Throughout the Term Owner will appoint a person to be the Service Provider to administer the registration of the Domain Name, to receive payments on behalf of Owner under this Agreement and to provide other services to Owner to assist Owner to administer this Agreement. If Owner’s arrangement with the Service Provider is terminated for any reason whatsoever, then: Owner will promptly give notice to Lessee and use commercially reasonable efforts to promptly appoint a replacement Service Provider; and until Owner appoints a replacement Service Provider Lessee will make all payments under this Agreement directly to Owner. As of the Effective Date, Owner appoints Reinvent, Inc. ("Venture.com") to be the Service Provider.
      2. Details: Unless Owner expressly directs in writing otherwise: Owner’s notices to Lessee under this Agreement may be given by the Service Provider on Owner’s behalf, and may be given by email to Lessee’s then-current email address on file with Service Provider; Lessee will make all payments (including payments of Monthly Fees and related Taxes) to Owner under this Agreement by making the payments to the Service Provider using the payment processes prescribed by the Service Provider from time to time; and Lessee will comply with the terms of service and other agreements that govern Lessee’s dealings with the Service Provider.
    2. Technical Requirements: Lessee is fully responsible and liable for obtaining, provisioning, configuring, maintaining, paying for and protecting from loss and damage, all equipment, software and services (including hosting services and email services) required for Lessee’s use of the Domain Name, including the creation and use of Lessee’s Website and Email Addresses.
    3. Responsibility: As between the Parties, Lessee is fully responsible and liable for Lessee’s Website (including all information and content available on or through Lessee’s Website and the use by any person of Lessee’s Website) and all use of Email Addresses (including the content of all emails sent or received using any Email Address).
    4. Information/Inspection: On request by or on behalf of Owner, Lessee will promptly provide Owner and the Service Provider with accurate, current and complete information and documents regarding Lessee, Lessee’s use of the Domain Name, Lessee’s Website and Email Accounts, and will promptly permit Owner to access and review all parts of Lessee’s Website, so that Owner may verify Lessee’s compliance with this Agreement.
    5. Lessee’s Successors/Assigns/Licensees: Both during and after the Term, Lessee will ensure that each of Lessee’s successors, permitted assigns and licensees complies with Lessee’s obligations under this Agreement.
    6. Sale of Lessee’s Businesses: Notwithstanding any other provision of this Agreement, if Lessee transfers and assigns sole ownership of and control over Lessee’s Website, all Email Accounts and all of Lessee’s business and assets in association with which Lessee uses the Domain Name to any person (the "New Lessee"), then Lessee may also assign this Agreement to the New Lessee, provided that the New Lessee expressly agrees in writing to accept Lessee’s assignment of this Agreement and to be bound by this Agreement as if all references in this Agreement to "Lessee" were references to the New Lessee. Lessee will give Owner notice of any assignment by Lessee of this Agreement to a New Lessee pursuant to this section 5.6 promptly after the assignment is completed. Notwithstanding the foregoing in this section 5.6 and Lessee’s assignment of this Agreement to the New Lessee, unless Owner expressly agrees in writing otherwise, Lessee will remain fully responsible and liable to Owner for all acts, omissions and liabilities by or on behalf of the New Lessee and any breach of this Agreement by the New Lessee.

  6. Proprietary Rights

    1. Ownership of Lessee’s Website: As between the Parties, and subject to section 6.3, Lessee is and will remain the sole owner of all right, title and interest in, to and associated with Lessee’s Website and all related IP Rights, and nothing in this Agreement or done pursuant to this Agreement will give Owner any right, title or interest in, to or associated with Lessee’s Website or any related IP Rights, or any right to purchase or otherwise acquire any interest in, to or associated with Lessee’s Website or any related IP Rights. For greater certainty, this section 6.1 does not apply to the Domain Name or any related IP Rights that may be used in Lessee’s Website.
    2. Lessee’s Pre-Existing Trademark Rights: Nothing in this Agreement or done pursuant to this Agreement will adversely affect or impair any rights that Lessee has prior to the Effective Date in any registered trademark.
    3. Ownership of Domain Name and Related Trademarks: Notwithstanding any other provision of this Agreement, as between the Parties Owner is and will remain the sole owner of all right, title and interest in, to and associated with the Domain Name and all related IP Rights. All IP Rights relating to the Domain Name, including trademark rights and goodwill arising from Lessee’s use of the Domain Name, belong to Owner. Nothing in this Agreement or done pursuant to this Agreement will give Lessee or any other person any right, title or interest in, to or associated with the Domain Name or any related IP Rights, or any right to purchase or otherwise acquire any interest in, to or associated with the Domain Name or any IP Rights. Lessee will not: contest or challenge (on any basis whatsoever) the ownership of the Domain Name and all related IP Rights throughout the world by Owner or Owner’s successors, assigns and licensees; commit any act or omission that might adversely affect or impair the ability of Owner or Owner’s successors, assigns and licensees to maintain, protect and enforce their ownership of and rights in, to and associated with the Domain Name and all related IP Rights throughout the world; assert, register or otherwise attempt to acquire, anywhere in the world, any rights (including IP Rights) in the Domain Name or any trademark that incorporates or is derived from the Domain Name or that is confusingly similar to the Domain Name; grant, assign or transfer to any person any interest (including any lien or other security interest) in, to or associated with the Domain Name or any related IP Rights; or assist, permit, or encourage any other person to do any of the foregoing in this section 6.3.
    4. Use of Domain Name After Term: For greater certainty, at any and all times after the Term Owner and each of Owner’s successors, assigns and licensees may use, and authorize other persons to use, the Domain Name and any and all similar domain names and all related trademarks and other IP Rights for any and all purposes whatsoever (including in association with any website, business, product and service that is competitive with or a substitute for any website, business, product or service of Lessee or any of Lessee’s successors, assigns and licensees) and notwithstanding any confusion or likelihood of confusion with any domain name or trademark (whether registered or unregistered) adopted or used by Lessee or any of Lessee’s successors, assigns or licensees.
    5. No Claim for Enhanced Value of Domain Name: Notwithstanding any other provision of this Agreement, Lessee is not entitled, under this Agreement or otherwise, to any compensation, remuneration, reimbursement or other payment in respect of any enhancement of or improvement to the value of the Domain Name (including enhanced goodwill or improved search engine optimization prominence or rank value) or any related trademark or any other IP Rights as a result of Lessee’s use of the Domain Name pursuant to this Agreement.
    6. Reservation of Rights: All rights not expressly granted by Owner under this Agreement are reserved by Owner.

  7. Claims, Proceedings and Indemnity

    1. Claims/Proceedings by Lessee: Lessee will not, without Owner’s express prior written consent, make, commence, maintain or assign against any person any allegation, claim, complaint, counter-claim, demand, dispute, action, suit or proceeding of any nature or kind whatsoever that is based on or relates to the Domain Name or any related IP Rights, the License or Lessee’s use of the Domain Name.
    2. Notice and Documents: Lessee will immediately give notice to Owner if Lessee becomes aware of any threatened or actual action, suit, assessment or proceeding in any court or before any tribunal, including a Domain Name Proceeding (defined in section 7.3(a), arising from, connected with or relating to the Domain Name, Lessee’s Website or any Email Address (including any allegation, claim, complaint, demand or dispute regarding any information or content available on or through Lessee’s Website or any email messages sent or received using an Email Address) and will provide to Owner all documents, including correspondence (including emails) and pleadings, relating to the threatened or actual action, suit, assessment or proceeding received by Lessee.
    3. Control Over Defence of Domain Name Proceedings:
      1. Definition: In this Agreement, "Domain Name Proceeding" means any threatened or actual action, suit or proceeding in any court or before any tribunal (including an arbitration-like proceeding pursuant to a dispute resolution policy [e.g. the Uniform Domain-Name Dispute-Resolution Policy] established by a domain name registry authority) commenced by any person against any or all of Owner, Lessee and Service Provider that either: includes a claim or allegation that the registration or use of the Domain Name infringes any person’s rights (including IP Rights) or is otherwise invalid or unlawful; or seeks any order or remedy that might affect Owner’s ownership of and control over the Domain Name (including an order canceling the registration of the Domain Name or transferring registered ownership of the Domain Name to another person).
      2. Control of Defence/Settlement by Owner: Notwithstanding section 7.4, Owner has the right, but not the obligation, to control the defence and settlement of any Domain Name Proceeding. If Owner in its discretion decides to control the defence and settlement of a Domain Name Proceeding, then: Owner in its discretion will determine whether and how to defend, settle or otherwise resolve the Domain Name Proceeding (including by settlement or default), all without any liability to Lessee or any other person; at Owner’s request, Lessee will fully cooperate with and assist Owner regarding the investigation, defence and settlement of the Domain Name Proceeding, including by providing documents, information and evidence; and for greater certainty, Lessee will fully pay all costs of defending the Domain Name Proceeding pursuant to section 7.4 and subject to section 7.5.
      3. Control of Defence/Settlement by Lessee: Subject to section 7.5, if Owner in its discretion gives notice to Lessee that Owner does not intend to control the defence and settlement of a Domain Name Proceeding, then Lessee will diligently defend the Domain Name Proceeding using competent and experience legal counsel approved by Owner, provided that Lessee will not settle or otherwise resolve the Domain Name Proceeding without Owner’s express, prior written consent, except this section 7.3(c) will not apply if Lessee terminates this Agreement pursuant to section 10.2.
    4. Indemnity: Subject to section 7.5, both during and after the Term, on request by Owner Lessee will defend, indemnify and hold harmless Owner and each of Owner’s personnel and representatives from and against any and all claims, complaints, demands, disputes, actions, suits, assessments and proceedings of any nature and kind whatsoever (including any Domain Name Proceeding) by any third party (including a governmental authority) and all related expenses (including legal fees and disbursements) and all resulting obligations and liabilities (including damages, administrative monetary penalties, financial sanctions, settlement payments, expenses and costs, including lawyer’s fees) arising from, connected with or relating to any of the following: Lessee’s use of the Domain Name, including Lessee’s Website and Email Addresses; any breach of this Agreement by Lessee; or any act or omission (including any misrepresentation) by or on behalf of Lessee or any of Lessee’s personnel or representatives or any other person for whom Lessee is responsible under this Agreement or applicable law. Subject to section 7.3(b), Lessee will control the defence and settlement of each of the foregoing claims, complaints, demands, disputes, actions, suits, assessments and proceeding using competent and experience legal counsel approved by Owner provided that Lessee will not settle any claim, complaint, demand, dispute, action, suit, assessment or proceeding that is subject to this section 7.4 without Owner’s express prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Owner and each of Owner’s personnel and representatives retains the right to participate (with legal counsel of their own selection at their sole cost and expense) in the defense of and settlement negotiations relating to any claim, complaint, demand, dispute, action, suit, assessment or proceeding by a third party.
    5. Exclusions: Sections 7.3(c) and 7.4 do not apply to a claim, complaint, demand, dispute, action, suit, assessment or proceeding if and to the extent, but only to the extent, that it is either: based solely on events that occurred prior to the Effective Date; or a direct result of a deliberate wrongful act by Owner that Owner intended and knew would result in direct harm to Lessee or another person, provided that a finding in a Domain Name Proceeding that Owner or Service Provider registered the Domain Name in "bad faith" does not constitute a finding that Owner committed a deliberate wrongful act for the purposes of this section 7.5.
    6. Compensation for Loss of Domain Name:
      1. General: Subject to section 7.6(c), if Owner ceases to be the sole beneficial owner of the Domain Name as a result of an order or other remedy (including an order canceling the registration of the Domain Name or transferring registered ownership of the Domain Name to a person other than Owner or the Service Provider) made or granted in a Domain Name Proceeding, then Lessee will compensate Owner by promptly paying the Compensation Payment to Owner.
      2. Compensation Payment: In this Agreement, "Compensation Payment" means an amount that is equal to the then-current Monthly Fee multiplied by two hundred and fifty (250). For example only, if the Monthly Fee is $4,000, then the Compensation Payment would be $1 million. Lessee acknowledges that the Compensation Payment reflects the fair market value of the Domain Name and is a genuine pre-estimate of reasonable compensation to Owner for the loss of ownership of the Domain Name and constitutes liquidated damages and not a penalty.
      3. Exception: Section 7.6(a) does not apply if the order or other remedy is either: based solely on events that occurred prior to the Effective Date; or a direct result of a deliberate wrongful act by Owner that Owner intended and knew would result in direct harm to another person, provided that a finding in a Domain Name Proceeding that Owner or the Service Provider registered the Domain Name in "bad faith" does not constitute a finding that Owner committed a deliberate wrongful act for the purposes of this section 7.6(c).

  8. Warranties and Disclaimers

    1. Owner’s Representations: Owner represents and warrants that: Owner has all requisite power, capacity, authority and approvals to make this Agreement and perform fully Owner’s obligations under this Agreement; except as expressly set out in this Agreement, Owner is and will remain the sole beneficial owner of the Domain Name throughout the Term; and as of the Effective Date Owner does not have actual knowledge of any threatened or actual Domain Name Proceeding.
    2. Lessee’s Representations: Lessee represents and warrants that: Lessee has all requisite power, capacity, authority and approvals to make this Agreement and perform fully Lessee’s obligations under this Agreement; the information and documents provided by Lessee to each of Owner and the Service Provider is true, accurate, current and complete; except as expressly set out in this Agreement, Lessee is and will remain the sole owner and operator of Lessee’s Website throughout the Term and has and will retain full control over all Email Addresses throughout the Term; and as of the Effective Date Lessee does not have actual knowledge of any threatened or actual claim, demand, action, suit or proceeding regarding Lessee’s Website (including information and content available on or through Lessee’s Website) or any of Lessee’s business, products or services.
    3. General Disclaimer: The representations and warranties expressly set out in this Agreement are in lieu of, and replace, all other representations, warranties, conditions and guarantees implied by law. Except for the representations and warranties expressly set out in this Agreement, each Party disclaims, to the maximum extent permitted by law, any and all representations, warranties, conditions and guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance.
    4. Domain Name Disclaimer: Lessee uses the Domain Name at Lessee’s own risk. To the maximum extent permitted by applicable law, Domain Name is made available for use pursuant to the License on an "as is", "as available" and "with all faults" basis, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, including any representation, warranty, condition or guarantee of or relating to fitness for a particular purpose; merchantability; non-infringement; title; performance or results; all of which are hereby disclaimed by Owner to the maximum extent permitted by applicable law. Without limiting the generality of the foregoing, Lessee is solely responsible and liable for the selection and use of the Domain Name to achieve Lessee’s desired results, and Owner does not make or give any representation, warranty, condition or guarantee that the Domain Name will meet Lessee’s requirements or that Lessee’s use of the Domain Name will achieve any specific results.
    5. Legal Compliance/Non-Infringement Disclaimer: Lessee is solely responsible and liable for conducting all necessary inquiries and investigations (including trademark clearance searches, tax and other legal due diligence) in all relevant jurisdictions and obtaining appropriate professional advice (including legal and tax advice) to ensure that Lessee’s use of the Domain Name, Lessee’s Website and Email Addresses will not violate any applicable law (including any law relating to IP Rights, domain names and cybersquatting, personal information and data protection, privacy, consumer protection, business practices, advertising and marketing, commercial electronic messages or spam) in any relevant jurisdiction or violate, infringe or misappropriate any right (including any IP Rights, privacy rights and personality rights) of any person in any relevant jurisdiction and that Lessee complies with all obligations to withhold, remit or pay all applicable Taxes. Owner does not make or give any representation, warranty, condition or guarantee regarding any of those matters.
    6. DNS System Disclaimer: Lessee acknowledges that use of the Domain Name depends on the operation of the DNS System and is subject to limitations, delays and other problems inherent in the DNS System, and that the rules regarding the DNS System are subject to change from time to time and those changes might affect the Domain Name and Lessee’s use of the Domain Name. Owner is not responsible or liable for the operation of the DNS System or any related problems, or any changes to the rules regarding the DNS System or the consequences of those changes.

  9. Liability Exclusions/Limitations and Risk

    1. Exclusion/Limitation of Liability: Notwithstanding any provision of this Agreement except section 9.2, and to the maximum extent permitted by applicable law:
      1. Exclusions: each Party’s liability (if any) to the other Party arising from, connected with or relating to this Agreement or the Domain Name or any related matter (including the use or inability to use the Domain Name) is limited to direct damages suffered by the other Party only, and in no event and under no circumstances will either Party be liable to the other Party for any indirect, incidental, consequential, special, punitive or exemplary loss or damage, or any loss of data, loss of information, loss of business, loss of markets, loss of savings, loss of income, loss of profits, loss of use, loss of production or loss of goodwill, anticipated or otherwise;
      2. Limitations: in no event and under no circumstances will Owner’s total aggregate liability to Lessee arising from, connected with or relating to this Agreement or the Domain Name or any related matter (including the use or inability to use the Domain Name) ever exceed the total amount of fees actually paid by Lessee to Owner during the three (3) months immediately prior to the date on which the liability arose; and in no event and under no circumstances will Lessee’s total aggregate liability to Owner arising from, connected with or relating to this Agreement or the Domain Name or any related matter (including the use or inability to use the Domain Name) ever exceed the amount of the Compensation Payment calculated as of the date on which the liability arose; and
      3. Application: this section 9.1 applies to liability under any theory of law (including contract, tort, strict liability and statutory liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the liable Party or any person for whom the liable Party is responsible, even if other remedies are not available or do not adequately compensate for the loss or damage, and even if the liable Party knows or ought to have known of the possibility of the potential loss or damage being incurred and regardless of whether or not the loss or damage was foreseeable.
    2. Exceptions: Section 9.1 does not apply to any of the following: a Party’s liability for breach of any of sections 2, 6.3 and 7; a Party’s liabilities and obligations under any of sections 4 and 7.4; or a Party’s liability for fraud or a deliberate wrongful act by or on behalf of the Party that the Party intended and knew would result in direct harm to the other Party.
    3. Service Provider: Service Provider is not a party to this Agreement and does not have any obligation to either Party under this Agreement. Service Provider is not responsible or liable for any act or omission (including any misrepresentation or breach of this Agreement) by either Party to this Agreement. Service Provider will not have any liability to either Party for any act or omission by Service Provider based on instructions (including instructions to suspend or terminate Lessee’s use of the Domain Name) given by Owner to Service Provider. This section 9.3 is for the benefit of Service Provider, who is a third party beneficiary of this section 9.3, and Service Provider is entitled to rely on and independently enforce this section 9.3 for Service Provider’s own benefit. This section 9.3 is a requirement of Service Provider and cannot be amended by the Parties without the express prior written consent of Service Provider.
    4. Acknowledgement: The allocation of risk set out in this Agreement (including in sections 8 and 9) is an essential part of the bargain between the Parties, a controlling factor in setting the fees payable by Lessee for the License, and an inducement to the Parties to enter into this Agreement.

  10. Term and Termination

    1. Term of Agreement: The term of this Agreement will commence on the Effective Date and will continue until this Agreement is terminated pursuant to this section 10.
    2. Termination by Lessee:
      1. For Convenience: At any time after the first month of the Term, Lessee may terminate this Agreement for Lessee’s convenience effective immediately on notice of termination to Owner, but on termination Lessee will not be entitled to a refund of any amounts paid by Lessee to or for the benefit of Owner before the termination date. For greater certainty, Lessee may give notice of termination to Owner by using an applicable online functionality made available for that purpose by the Service Provider.
      2. For Cause: Lessee may terminate this Agreement for cause effective immediately on delivery of a termination notice to Owner if Owner breaches this Agreement and Owner has not remedied the breach within thirty (30) days after receipt of a default notice from Lessee identifying the breach and stating Lessee’s intention to terminate this Agreement if the breach is not remedied within a thirty (30) day cure period.
    3. Termination by Owner for Cause: Owner may terminate this Agreement for cause effective immediately on notice of termination to Lessee if any of the following occur:
      1. Lessee fails to make any payment when due under this Agreement and fails to cure the breach (by making the required payment) within fourteen (14) days after receipt of notice from Owner identifying the breach and stating Owner’s intention to terminate this Agreement if the breach is not remedied within a fourteen (14) day cure period;
      2. Lessee breaches this Agreement [other than a payment breach, which is governed by section 10.3(a)] and Lessee has not remedied the breach within thirty (30) days after receipt of a default notice from Owner identifying the breach and stating Owner’s intention to terminate this Agreement if the breach is not remedied within a thirty (30) day cure period; or
      3. Owner has delivered to Lessee three (3) or more notices of breach pursuant to any of sections 10.3(a) and 10.3(b) within any six (6) month period, and regardless of whether or not the Lessee has remedied any or all of the breaches referenced in the notices.
    4. Termination by Owner for Other Reasons: Owner in its discretion may terminate this Agreement if any of the following occur: the Domain Name is subject to a Domain Name Dispute; Owner ceases to be the sole beneficial owner of the Domain Name as a result of any circumstance beyond Owner’s control or as a result of an order or direction issued by a court, arbitrator or administrative panel in a Domain Name Proceeding or any other legal proceeding; or this Agreement or Lessee’s use of the Domain Name under this Agreement is prohibited by any agreement, terms of service or policy that governs the registration or use of the Domain Name as specified by the applicable domain name registry authority or the registrar for the Domain Name, as amended from time to time. For greater certainty, and except as expressly set out in this section 10.4, Owner may not terminate this Agreement for Owner’s convenience.
    5. Consequences of Termination: On termination of this Agreement for any reason: the License will immediately and automatically terminate, Lessee will no longer be entitled to use the Domain Name for any purpose or in any manner whatsoever, and Owner may immediately change the Domain Name’s Name Server addresses and MX Records so that the Domain Name no longer resolves to the Lessee’s Website or the Lessee’s email servers; each Party will remain responsible and liable for all of the Party’s obligations and liabilities arising prior to the termination of this Agreement; and Lessee will immediately pay all amounts due and owing to Owner under this Agreement.
    6. Survival: Notwithstanding any other provision of this Agreement, each of sections 4, 5.5, 6, 7, 8, 9, 10.5, 11 and 12, and all other provisions necessary to the interpretation or enforcement of those sections, will survive indefinitely after the expiration or termination of this Agreement and will remain in full force and effect and be binding on the Parties.

  11. Disputes

    1. Disputes: All disputes, controversies and claims between the Parties arising under, out of, in connection with, or in relation to this Agreement (each a "Dispute") will be resolved in accordance with the dispute resolution process set out in this section 11.
    2. Negotiation: If there is a Dispute, then either Party may give a notice (a "Dispute Notice") to the other Party requiring the Parties to attempt to resolve the Dispute through negotiation, and the Parties will then cause their respective authorized representatives to meet (by conference call or in person) on a mutually acceptable date and time within seven (7) days after the date on which the Dispute Notice is delivered to discuss and attempt to resolve the Dispute. If a Dispute is not fully and finally resolved within fifteen (15) days after the date on which the Dispute Notice is delivered, then either Party may refer the Dispute to arbitration pursuant to section 11.3. All communications (oral and written) made in the course of negotiations regarding a Dispute pursuant to this section 11.2 will be deemed "without prejudice" and will not be admissible into evidence in arbitration or any other legal proceeding unless the communication is in writing and is expressly identified as being made "with prejudice".
    3. Arbitration: Subject to sections 11.4 and 11.5, a Dispute that is not resolved by the Parties pursuant to section 11.2 will be referred to and finally resolved by confidential binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The number of arbitrators will be one. The place of arbitration will be Vancouver, British Columbia. The language of the arbitration will be the English language. If ICDR Canada is not operative, then the arbitration will proceed ad hoc and be governed by the Arbitration Act (British Columbia). Any award rendered in an arbitration is final and binding and judgment on the award may be entered in any court having jurisdiction for the enforcement of the award.
    4. Litigation: Notwithstanding sections 11.2 and 11.3, either Party may seek preliminary or temporary injunctive relief and other remedies from the Supreme Court of British Columbia sitting in Vancouver, British Columbia to avoid irreparable harm or to preserve the status quo, and the Parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all of those matters and all other matter that is not properly subject to arbitration pursuant to section 11.3.
    5. Enforcement: Lessee acknowledges that each of sections 2, 6.3 and 7 are of fundamental importance to Owner, and a breach of Lessee’s obligations under any of those sections will result in irreparable harm, loss and damage to Owner for which Owner could not be adequately compensated by an award of monetary damages. Accordingly, if Lessee breaches or threatens to breach any of those sections and fails or refuses to immediately remedy or avoid the breach and expressly agree in writing to comply with this Agreement, then notwithstanding sections 11.2, 11.3 and 11.4 Owner may immediately commence legal proceedings against Lessee in the Supreme Court of British Columbia seeking judicial remedies (including restraining orders and injunctions) to prevent the breach or threatened breach, and Lessee will not oppose the granting of those remedies.

  12. General

    1. Relationship: The Parties are independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. Neither Party is authorized to make any representation or commitment, or create any obligation (express or implied), on behalf of the other Party.
    2. Governing Law: This Agreement, the subject matter of this Agreement and the resulting relationship between the Parties will be governed by, and construed in accordance with, the laws of the Province of British Columbia, Canada and the laws of Canada applicable in British Columbia, excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods and excluding any rules of private international law or the conflict of laws that would lead to the application of the laws of any other jurisdiction.
    3. Notices: Except as expressly set out in this Agreement, all notices to be given under this Agreement will be in writing and will be delivered by email to a Party at the email address set out in the Business Details or at other email addresses specified by the Party in a notice delivered to the other Party pursuant to this section 12.3. Each Party will ensure that the Party’s email address and related email account is and remains valid and effective throughout the Term.
    4. Amendments: This Agreement (including the Business Details) may not be amended except by a written document (not an email) that expressly states that it is an amendment to this Agreement and that is signed by both Parties or their respective successors or permitted assigns.
    5. Assignment of Agreement: This Agreement and each Party’s rights and obligations under this Agreement are personal to the Party, and a Party may not transfer or assign this Agreement without the express prior written consent of the other Party except as expressly set out in sections 3.4 and 5.6.
    6. Miscellaneous: If a provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable or invalid for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. Except as expressly set out in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which the Party may be entitled under this Agreement or at law, and each Party may pursue any and all of the Party’s rights and remedies concurrently, consecutively and alternatively. No consent or waiver by a Party to or of any breach of this Agreement by the other Party will be effective unless in writing and signed by both Parties, or deemed or construed to be a consent to or waiver of a continuing breach or any other breach of this Agreement by the other Party. If a Party’s consent or approval is required under this Agreement, then the Party in its discretion and for its sole convenience may withhold or refuse the consent or approval unless this Agreement expressly states otherwise. This Agreement will enure to the benefit of and will be binding on each Party and its successors and permitted assigns. Each Party will, on reasonable request by the other Party, execute any further documents and do any further acts or things that may be necessary to implement and carry out the intent of this Agreement. The Parties have expressly requested and required that this Agreement and all related documents be in the English language. All communications, notices and documentation provided under this Agreement will be in the English language only.
    7. Force Majeure: Notwithstanding any other provision of this Agreement, a Party will not be liable for any delay in performing or failure to perform any of the Party’s obligations under this Agreement (except for payment obligations) if and to the extent performance is delayed or prevented due to a cause or causes beyond the Party’s reasonable control, and any delay or failure of that kind will not be a breach of this Agreement and the time for performance of the affected obligations will be extended by a period that is reasonable in the circumstances.
    8. Interpretation: In this Agreement: a reference to "this Agreement" and other similar expressions refers to this Agreement as a whole, and not just to the particular document or provision in which those words appear; headings are for convenience only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; words importing the singular number only include the plural, and vice versa; reference to a day, month or year means a calendar day, calendar month or calendar year, unless expressly stated otherwise; a reference to currency is to the lawful money of the United States of America, unless expressly stated otherwise; "discretion" means a person’s sole, absolute and unfettered discretion; "including" or "includes" means including or includes (as applicable) without limitation or restriction; "in writing" or similar terms includes email, unless expressly stated otherwise; "law" includes common law, equity, statutes (including statutes implementing treaties), regulations and orders of courts and tribunals, and a reference to a specific statute includes all regulations made under the statute and all amendments to, or replacements of, the statute or any regulation made under the statute in force from time to time; "person" includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; and "trademark" includes a service mark, logo and any other sign or symbol protected under law.
    9. Complete Agreement: This Agreement (which is comprised of the Business Details and these Terms and Conditions) sets out the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between the Parties regarding the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties regarding the subject matter of this Agreement other than as expressly set out in this Agreement.
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