FOLLOWING ARE THE TERMS ON WHICH SmartMart OFFERS YOU ACCESS TO OUR WEB SITE AND SERVICES.
This is the User Agreement (the “Agreement” or “User Agreement”) for your use of web sites owned or operated by, and services offered by, SmartMart (“SmartMart”). If you reside within the United States or Canada, the party you are contracting with is SmartMart.com, and you are subject to the US Terms of Use. This Agreement contains the terms and conditions (“T&C”) applicable to your use of our online and employee-assisted services (“Service” or “Services”) as described and available under or through the domain, sub-domains, and affiliated domains of www.SmartMart.com (the “Site”). IF YOU (“YOU” OR “USER”) DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE OR ACCESS OUR SITE OR SERVICES.
You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may use the Site or the Services or become a registered user of the Site. This Agreement is effective upon the earlier of: (i) your first use of the Site or Services for any reason; (ii) acceptance of this Agreement by new registering users; or (iii) the Effective Date noted on the posted version of the Agreement. SmartMart may elect to discontinue offering the Site or the Services, or any portion thereof, at any time for any reason, with or without advance notice.
1. Eligible Users
Use of the Site and Services is restricted to persons who: (a) are at least 18 years old, and (b) reside, or have a business address outside the United States or Canada. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement. If you are not yet 18, do not have the capacity to enter into contracts, are easily offended, or are accessing this Site from any country where material on this Site is prohibited or illegal, you do not have permission to access the Site or the Services. If a parent or guardian wishes to permit a person under 18, and under his or her supervision, to use this Site, the parent or guardian should email SmartMart at contact@SmartMart.comto make arrangements, although no such access can be guaranteed.
2. Modification of This Agreement
SmartMart may amend this Agreement at any time by posting the amended terms on the Site. Such modifications and additional terms and conditions will be communicated to You and, if accepted, will be effective immediately or at the stated effective date and will be incorporated into this Agreement. In the event that you refuse to accept such changes, SmartMart will have the right to terminate the Agreement. The posting date and effective date for this Agreement are noted at the top of this document. Except as provided in this Section 2, this Agreement may not be amended or modified except in a writing signed by you and SmartMart.
3. Acceptable Use
3.1. User Accounts
At all times your use of the Site and Services must be in compliance with this Agreement and the acceptable use policies posted on the SmartMart website under Policies, and which are hereby incorporated by reference. If you violate the Acceptable Use terms described herein, SmartMart may, in its sole discretion, with or without notice, terminate your access to the Site and Services.
You are allowed to create one (1) user account with SmartMart. Your right to use the Site and Services is personal to you. Post office boxes or addresses of office service providers may not be used as an address for a User account. It is likewise not permitted to provide value-added service numbers as telephone numbers for a Customer Account. Furthermore, SmartMart reserves the right to forbid the use of freely available email addresses as the email address for a User account.
As a condition of your use of the Site and Services, you warrant to SmartMart that you will not use the Site for any purpose that is unlawful or prohibited by this Agreement. Prohibited uses include, but are not limited to: competitive analysis (including copying and/or providing screen shots, which are copyrighted material owned by SmartMart); data mining or scraping through the use of robots, spiders, or otherwise; and/or any use with the potential to infringe the rights of any third party.
In addition, you hereby represent and warrant that: (a) you are an eligible user (see Section 1, Eligible Users); (b) you have provided accurate and complete information in connection with your registration and use of the Site and Services (all such information collectively referred to as “Your Information”), and (c) you will update SmartMart to ensure that Your Information remains accurate and complete.
3.2. Use of the Site and Services
You may not use the Site or the Services to: (a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) conduct or forward illegal contests, pyramid schemes, or chain letters; (c) publish, post, distribute, disseminate or link to any: (i) inappropriate, profane, defamatory, infringing, obscene, adult content, nude, indecent or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials; (iii) software or other material that contains viruses, corrupted files, or that may or are intended to damage the operation of another’s computer (e.g., “cracks,” “hacks,” or other programs written to defeat the security measures of any computer, system or program(s)); (d) sell, distribute, disseminate or link to any sites for marketing, sales or distribution of: firearms, explosives, ammunition, liquor, tobacco products, food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants, pharmaceuticals and controlled substances, counterfeit, pirated or stolen goods, fraudulent goods, any goods or services that infringe or otherwise violate a third party’s rights, registered or unregistered securities, goods or services that: (i) you cannot legally sell, (ii) are misrepresented, and/or (iii) if sold, would cause SmartMart to violate any law, statute or regulation; (e) harvest or otherwise collect information about third parties, including email addresses, without the express consent of such third parties; (f) restrict or inhibit any other user from the use and enjoyment in the Services or the Site, interfering with or disrupting the Services or the Site service or servers or network connected to the Site; (g) use a domain in connection with your use of the Site that is confusing or misleading to other Users or to the public; (h) email or otherwise transmit, distribute, publish or disseminate any junk email, spam, chain letters, pyramid schemes, or any other form of duplicative or inappropriate solicitations or messages (commercial or otherwise); (i) violate the rights of any third parties, including, but not limited to, trademark, copyright, naming or publicity rights, or (j) violate any applicable government laws or regulations. SmartMart does not condone or allow spam. SmartMart will cooperate with legal authorities and Internet service providers in releasing information about users who violate the terms of this Agreement or posted policies.
You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, services or benefits obtained from the Site, except as expressly provided herein. At all times, you remain solely responsible for Your Information.
3.3. Privacy and Confidentiality
Protecting your privacy and the personal information you provide us is a top priority at SmartMart. For this reason, SmartMart does not sell or rent your personal information to third parties for their marketing purposes without your explicit consent. At SmartMart, we want our users to fully understand what information we collect, how we use this information, and the steps we take to protect your personal information. Please read the Privacy Policy which is hereby incorporated by reference, to learn more about the policies and procedures SmartMart has put in place to achieve this goal.
You agree not to share any information provided to you by or on behalf of SmartMart with any third party except as expressly permitted herein. If you sell or otherwise distribute goods or services that compete with or may otherwise serve as a substitute for products or services sold or otherwise distributed by SmartMart via the Site or offered by the Site, you may not: (a) use or acquire, or have any other person use or acquire on your behalf, the products or services of the Services or the Site for which you offer competing or substitute products or services; or (b) advertise, promote, market or solicit offers to acquire such competing or substitute products in connection with your use of the Services or the Site.
SmartMart is not obligated to monitor user-generated content on the Site. However, with respect to the use of the Services or the Site, SmartMart reserves the right to disclose any information, communication, or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Site, in SmartMart’s sole discretion, without notice at any time.
3.4. User Account Certification/Limited Use of Site and/or Services
In order to preserve a safe and secure Site and Services for our users, SmartMart may elect to require you to perform a user account certification process that may include, but is not limited to, confirming your billing information, verifying the accuracy of your account details, requesting a copy of government-issued identification, requiring a security deposit for high value offers, and other account certification methods as SmartMart may develop in its sole discretion at any time. Failure to perform the requested user account certification methods will result in limited access to the Site and Services.
3.5. Violations of Acceptable Use
Upon suspicion of violation of the acceptable use terms of the Site or Services, SmartMart may elect to suspend or terminate your SmartMart user account and/or access and use of the Site or Services, or any portion thereof, at any time with or without advance notice.
You are responsible for safeguarding the confidentiality of your password(s) and login name(s) issued to you by SmartMart, and for any use or misuse of your account or the Services or the Site resulting from any third party accessing your SmartMart user account or otherwise using a password or login name issued to you. You agree that you will notify SmartMart immediately of any known or suspected unauthorised use, breach of security, or violation of this Agreement, on or relating to the Site.
4. SmartMart Fees
Except as otherwise noted, creating a user account with SmartMart is free. We do charge fees for our online and offline services and you are given an opportunity to review and accept the fees that will be charged in connection with certain Services. You are responsible for all applicable taxes, costs, hardware, software, services and all other costs and expenses related to your ability to access or use the Site and Services or your activity conducted through the Site. SmartMart may, in its sole discretion, add, delete or change any of the Services provided or fees charged by SmartMart. SmartMart’s standard fees and any changes will be posted to our Price List, and the applicable Services and fees will be binding on the effective date noted on the Price List. No advance notice is required for any prospectively effective change in Services offered or fees charged therefore.
Unless otherwise stated, all fees and currency amounts are quoted in United States Dollars. The fees charged for SmartMart services that are specified by SmartMart are considered to be end prices and are understood to include any applicable taxes.
5. Specific Services and Applicable Terms
The following terms and conditions relate to the particular Services offered by SmartMart or through the Site.
Among other Services, SmartMart and the Site serve as a trading and auction platform to allow Users to offer to sell and buy Domains, complete web sites, and/or web-based businesses (collectively, “Domains”). The purchase and sale agreement for any Domains is by and between the buyer and seller parties only. SmartMart’s involvement post-agreement is limited to collecting a fee for Services provided, or as otherwise agreed by all parties.
Before entering into a binding agreement to purchase a Domain and/or accessing SmartMart’s Site and Services, you must perform, and are responsible for, all research necessary to ensure that you are aware of any factors affecting your registration and use of the Domain or use of the Domain with SmartMart’s Site and Services, including, but not limited to, the applicable annual registration fees required to maintain your registration and use of the Domain, that your prospective use of the Domain will not infringe the rights of any third parties, and that you have all the information necessary to make an informed purchasing decision.
5.1. Domain Marketplace
Except as otherwise provided this Agreement and in applicable posted policies, SmartMart offers its registered users a domain trading platform (“Domain Marketplace”) whereby domain owners may list, market, auction, and sell Domains to buyers (“Sellers”), and whereby domain buyers on the Site and promotional partner network may search, bid, and purchase domains from their owners (“Buyers”).
There are no upfront fees for listing a Domain for sale on the Domain Marketplace and Sellers may delete their Domain listings from the Domain Marketplace at any time without cost unless their Domain is subject to an active negotiation, has been sold and is pending transfer, and/or is subject to a brokerage agreement. SmartMart charges Sellers a commission fee for sales originating and/or completed as a result of SmartMart’s Services. SmartMart’s standard fees and any changes will be posted, and the applicable Services and fees will be binding on the effective date noted on the Price List.
Users wishing to list their Domain for sale start by choosing the listing type as described below. Users seeking to buy Domains may enter search terms on the Site to query the Marketplace for relevant Domain listings and then either submit a bid with an offer to buy or accept the Seller’s stated price. These bids and the responses of the Sellers and Buyers will be forwarded to the other party free of charge via the email addresses provided as part of user registration. SmartMart cannot guarantee that any particular bid or response will be transmitted to the intended recipient. SmartMart acts here neither as a Buyer nor Seller, neither as a lessee nor lessor, nor as the representative of any of the above-mentioned parties.
In the event that a Seller and Buyer negotiate an agreement for the purchase and sale of a Domain via the Domain Marketplace, the Buyer and Seller agree that the terms of the purchase and sale will follow the standard online purchase and sale agreement supplied by SmartMart and available for review upon request. In addition, Buyer and Seller agree that SmartMart shall manage the purchase and sale transaction in accordance with the terms of SmartMart’s Domain Transfer and Escrow Services as described below in Section 5.2, which is provided free of charge for all Domain Marketplace transactions.
Not all domain extensions are alike, and certain top-level domains (TLDs) carry abnormal registration policies, restrictions, prices and other associated fees. Buyer and Seller are responsible for conducting all research necessary to make themselves familiar with the rules, regulations and fees of the associated registrar for the contemplated Domain prior to entering an agreement to purchase or sell a Domain. Buyer and Seller agree that SmartMart shall not be held responsible for any abnormal registration policies, prices or fees.
5.1.1. Domain Marketplace Rules and Requirements
At all times Buyers and Sellers remain bound by the terms and conditions of this Agreement and the policies related to buying and selling domains on the SmartMart Domain Marketplace found in Policies section of the Site. Each SmartMart User is limited in the number of Domain negotiations (“Open Bid Threads”) in which they may participate simultaneously, depending on their user account certification status. SmartMart makes no representations or warranties regarding the features of Domains listed in the Domain Marketplace. This shall apply particularly, but not exclusively, to visitor statistics, traffic statistics, and the precise alphanumerical composition of a Domain.
5.1.1.1. Binding Offers
If, during the course of an Open Bid Thread a User makes an offer for the conclusion of a purchase and sale agreement, or at any time a prospective Buyer makes an offer for a Buy Now listing below the Seller’s stated price, then he/she is bound to this offer for 168 hours, which corresponds to seven days from the time when the offer was rendered, unless, when available as an option, a prospective Buyer has chosen a different duration of time at the time of submitting their offer, of which the Seller will be notified. (“Offer Period”). Due to the binding nature of offers to purchase or sell Domains, Users should review the Domain listing carefully and perform all necessary research on suitability for intended uses to avoid mistake before submitting a binding offer. Mistake does not relieve a User from their obligations to purchase or sell a Domain once a binding offer has been accepted. The Buyer’s offer shall lapse if the other User rejects the offer, accepts another User’s offer, submits a counter-offer, or the binding time period is allowed to lapse. A belated acceptance of the offer or a counter-offer shall be considered to be a new offer.
5.1.1.2. Taxes, Currency, & Purchase Price Conversion
All prices quoted between Users during the negotiation or auction process or used by Seller in Buy Now listings or Minimum Offer preferences are understood to be end prices including any applicable taxes. During the bidding process, Users have the opportunity to select the currency for offers or counter-offers for Domains. As soon as both parties have used the same currency for the offer and the counter-offer within an Open Bid Thread, this currency shall become the controlling currency until the conclusion of the negotiating process.
The purchase price for the Domain shall be a price in the currency upon which agreement has been reached through the timely acceptance of an offer. This purchase price in the agreed-upon currency shall form the basis for the execution of the purchase and sale agreement between the Buyer and the Seller as well as formulating any fees owed between the Seller and SmartMart. If the agreed-upon currency is not identical with the currency originally selected by the User or with the default currency preference as indicated by the User in his/her User account, then a conversion of the purchase price into the default currency shall automatically occur at the moment the parties reach agreement. The exchange rate used by SmartMart for this conversion shall be determined in accordance with the exchange rate of the European Central Bank which was valid at the point in time agreement was reached, rounded to five (5) places behind the decimal point. The result of any conversion in accordance with this section shall be commercially rounded, dependent upon the currency assigned to the User, to full US dollars (USD) or full Euros (EUR) or full British pounds (GBP). The result of commercial rounding shall be the purchase price of the User in the currency selected by the User or assigned to the User.
5.1.1.3. Legal Relationship as between SmartMart, Buyer and Seller
SmartMart is neither owner of the Domains listed in the Domain Marketplace, nor does it have any influence or control on the business conducted among Users of the Domain Marketplace. The responsibility for the content of Domain listings, including the accuracy of any statistics, whether measured and displayed by SmartMart or otherwise, lies exclusively with the respective Sellers, Buyers, and Users. SmartMart shall not be liable for legal transactions or other acts of Domain Marketplace users. This also applies to any violations of rights of a third party through the use of SmartMart’s Services, including, but not limited to, the listing of a Domain in the Domain Marketplace that infringes intellectual property rights, rights of the use of a name, and trademark rights. Buyer and Seller agree that SmartMart shall not be held responsible for the failure of either party to a purchase and sale agreement to complete their obligations under such an agreement, and that SmartMart, as the neutral facilitator of the Domain Marketplace and associated Services, shall not be subject to any claims arising from the attempted purchase and sale of Domains.
5.1.2. Domain Listing Options
Sellers have several listing options when offering Domains for sale on the Domain Marketplace: Buy Now, Make Offer, or Auction.
Sellers may submit a ‘Buy Now’ Domain listing by submitting or updating their Domain listing to include a fixed price that serves as an open-ended offer to Buyers on the Domain Marketplace to sell the Domain at the indicated price. This offer to sell the Domain at the indicated price shall remain binding for so long as until Seller updates the Domain listing in their SmartMart user account with a different fixed price offer or an alternative listing type and this update has been reflected on the Domain Marketplace. Sale prices indicated in Buy Now listings are considered to be the end price for the Buyer including any applicable taxes. When available, Buyers on the Domain Marketplace may still submit an offer to the Seller below the binding Buy Now price indicated by Seller, which Seller can either ignore, accept or respond by adjusting their Buy Now price expectations.
If a Seller does not state a fixed sales price when listing their Domain for sale, the Domain listing will display as a ‘Make Offer’ listing and serves as an invitation for other Users to submit an offer for the purchase and sale of the Domain that is the subject of the Domain listing.
Sellers may submit a ‘Minimum Offer’ preference for their Domain listing by submitting or updating their Domain listing to include a minimum price at which Seller is willing to consider offers. A Minimum Offer indication on your Domain listing serves as an invitation for other Users to submit an offer in excess of the stated amount for the purchase and sale of the Domain that is the subject of the Domain listing.
Buy Now and Make Offer Domain listings are automatically promoted on the SmartMart Site and the websites of SmartMart’s promotional partners based on the listing preferences of SmartMart’s partners, which are subject to change from time to time without prior notice.
5.1.2.1. Auction Listings
SmartMart provides Sellers two distinct options for selling their domain in a public auction that occurs on the SmartMart website or is otherwise moderated by SmartMart (“Auction”). The Seller may submit their domain for consideration to be chosen for a SmartMart managed auction event that SmartMart may stage from time to time at its own discretion. Sellers are instructed to apply for the auction event via the Domain Management tool in their SmartMart user account, review and accept the related Managed Auction Event Terms & Conditions at which point a member of the SmartMart staff will review all Domain submissions for suitability in the managed auction event. If accepted the Managed Auction Event Terms & Conditions as well as any relevant portions of this Agreement shall apply.
The second auction option for Sellers occurs when a prospective Buyer enters an offer for Seller’s Domain via the Domain Marketplace. Once Seller is presented with offer, they may choose the option to enter the Domain into a public Auction, rather than proceed in a traditional offer/counter-offer negotiation. Once Seller chooses the option to push the domain to an Auction, the Auction Period, as defined below, has commenced and Seller accepts the offer from the initial Buyer as the basis of their binding reserve price. During this period, other potential Buyers have the ability to use the Auction platform to make offers to buy the same Domain for an amount of money higher than the original bid. Should no other Buyers submit an offer to buy the Domain at a price higher than the original bid, the initial bidder’s offer is automatically accepted and the Auction Period closes with the initial bidder as the winner.
The bidding period during which additional offers may be submitted to purchase the Domain from different potential buyers ends seven (7) days following the entry of the initial bid that permitted the seller to start the auction (Auction Period). Upon completion of the Auction Period, Seller agrees to accept to sell the Domain to the winning bidder or to the initial bidder if no offer is made in excess of the initial bid. If Seller enters a particular Domain into an Auction Period and an Initial Bidder has previously bid on the Domain, the Seller is bound to the offered price for seven days from the time the Initial Bidder placed an offer, not seven days from the time the Auction Period was entered into.
Seller agrees to accept the highest valid offer made during the Auction Period so long as SmartMart did not cancel the Auction Period in accordance with these terms and conditions. Once the Seller enters a Domain or Web Project as an Auction, he is prohibited from offering or selling this Domain or Web Project anywhere else other than within that Auction.
5.1.3. Auction Rules and Requirements
Generally, an Auction Period will run for seven days. However, because a Seller may choose to select the Auction option at any time after an initial bid has been made, it does not mean that the Auction Period must run for seven days from the time of selecting the Auction option, but from the entry of the initial bid by a potential Buyer. Therefore, if the Seller selects the Auction option two days after a potential Buyer enters an offer, the Auction Period will only run for five days. During this Auction Period, the Seller and all potential Buyers are bound to the Auction. Upon approaching the close of the seventh day, the Auction Period will extend for ten minutes each time a valid offer is placed within the last five minutes of the Auction Period.
5.1.3.1. Auction Period and Transfer
During the Auction Period, the highest offer made on a particular Domain will be indicated on the Bidding Page via SmartMart’s website. SmartMart customers can then enter the Auction by placing higher offers. All offers will be construed as firm offers to buy the Domain for the offered price in accordance with the conditions of the purchase and sale agreement for the Domain.
If no offer is made during the Auction Period and the Auction was not cancelled by SmartMart or otherwise, a legally binding contract exists between the Seller and the potential Buyer who placed the last bid before the Auction ends. If valid higher offers are placed during the Auction Period, and the Auction was not cancelled by SmartMart or otherwise, a legally binding contract exists between the Seller and the prospective Buyer who placed the highest bid as reflected at the end of the Auction Period. This contract exists even if the SmartMart bidding page is not available at the end of the Auction Period.
After the Auction Period ends, Buyer and Seller agree that SmartMart shall manage the purchase and sale transaction in accordance with the terms of SmartMart’s Domain Transfer and Escrow Services as described below in Section 5.2, which is provided free of charge for all Domain Marketplace transactions.
5.1.3.2. SmartMart’s Right to Cancel Auction
SmartMart reserves the right at SmartMart’s sole discretion to cancel an Auction listing at any time, before or after the start of the Auction Period, including, but not limited to, violations of this Agreement’s Acceptable Use terms, if the offered Domain or Web Project infringes the intellectual property rights or other rights of a third party. If the Auction Period is cancelled, any binding or contractual relationship between the Seller and the highest bidder and/or the person who made the last offer before the Auction Period that may have existed will cease.
5.1.3.3. SmartMart’s Right to Eliminate Offers
5.1.3.3.1. Deleting Bids Made in Error
SmartMart reserves the right to delete individual bids during the Auction Period if it believes that such bids were placed clearly erroneously, by mistake, or were determined not to be a bona fide firm offer. Mistake on the part of the User must be reasonably obvious. The User must communicate the mistake to SmartMart, in writing and within a reasonable amount of time. Users may not claim mistake with the purpose of interfering with or circumventing the completion of a transaction. SmartMart may suspend the User’s account at any time if the User is found to have placed a fraudulent bid during an Auction Period. In the event that SmartMart invalidates a current high bid, the next highest bid, including the previous high bid, shall take the place of the active high bid with all due obligations should such bid remain the high bid at the close of the auction.
5.1.3.3.2. Deleting Bids Made Fraudulently
SmartMart reserves the right to delete individual bids during the Auction Period if it believes that such bids were fraudulent, fake, “shill” bids or were determined not to be a bona fide firm offer. SmartMart reserves the right to contact you to verify your identity, the validity of the bid, as well as request documents to support the validity of your bids. If SmartMart is not able to verify the information in a reasonable amount of time, please be advised that SmartMart has the right to delete the bid without objection. SmartMart may suspend the User’s account at any time if the User is found to have placed a fraudulent bid during an Auction Period. In the event that SmartMart invalidates a current high bid, the next highest bid, including the previous high bid, shall take the place of the active high bid with all due obligations should such bid remain the high bid at the close of the auction.
5.1.3.4. Availability
SmartMart in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible. If a Bidding Page is not accessible, the Seller may not, in the future, refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder for the Domain Auction if the webpage had been available.
With regards to all SmartMart Auctions, including Managed Auction Events, such as broker-assisted auctions, promotional auctions, or auctions held at affiliate websites like GreatDomains.com, in the case of technical issues which may occur within SmartMart’s servers, networks, or other mechanisms, SmartMart may, to the extent they are within SmartMart’s control, take actions reasonably necessary to remedy such issues as they occur. Such actions include, but are not limited to, extending the length of time the auction is active and/or cancelling such auctions.
5.1.3.5. Auctions with Reserve Price
Upon receiving prior permission from SmartMart, a Seller may commence an Auction Period prior to an offer being placed for the particular Domain or Web Project. If such an agreement is reached between SmartMart and the Seller, the aforementioned as well as the following conditions will apply.
The Seller has the right to set a reserve price for which he is willing to sell the Domain (“Reserve Price”). During the Auction Period, the current highest bid will be indicated on the Bidding Page. In addition, it will be indicated on the Bidding Page if the current highest bid is lower than the Reserve Price, though under no circumstances will the Reserve Price ever be revealed. If the Reserve Price is not reached within the Auction Period, the Domain will not be sold to any of the potential Buyers. The Seller reserves the right to lower his Reserve Price during the Auction Period but shall not raise the Reserve Price under any conditions.
An Auction Period running with a Reserve Price may be distinguished from a general Auction Period in that it may, at the selection of a SmartMart broker, in conjunction with an agreement with the Seller, run for longer than seven days.
5.1.4. General Terms Applicable to all Listing Types
The following Domain listing requirements and obligations apply to your use of SmartMart’s Domain Marketplace and Auction Platform:
(a) Buyer and Seller agree to create a User account and to fill out the registration form completely and accurately. The Domain Seller must be the verified owner of the domain name listed for sale. Unless the domain owner has a privacy shield for WHOIS database purposes, information provided within the SmartMart User’s account must correspond to the information contained in the WHOIS database.
(b) Should the registration of a Domain that is the subject of a purchase and sale transaction 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 when an agreement is made for the purchase and sale of the Domain, 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.
(c) Domains are the result of, and are subject to, all of the conditions, limitations, and restrictions contained in Domain registration agreements between the Seller and a third-party Domain registrar or other service provider. As such, the transferability of Domain registration may be limited, prohibited, or otherwise subject to conditions imposed by the Domain registrar or service provider. Nothing in this Agreement or on the Site shall be construed to imply that the Seller possesses any rights to a Domain beyond those specified in the Seller’s agreement with the relevant Domain registrar or service provider. When referencing a Domain as the object of a purchase and sale transaction within these terms, Domain shall refer to any rights the Seller may possess with regard to the registration of a particular Domain under its Domain registration agreement with a Domain registrar. Any content or material associated with a developed website that is the object of a purchase and sale agreement must be materially described in writing to be subject to the relevant purchase and sale agreement.
(d) As a Seller of a Domain listed on the Domain Marketplace and/or Auction, you represent and warrant that: (i) you have registered the Domain with the appropriate Domain registrar or other registration authority; (ii) your registration of the Domain is current and not subject to deletion, cancellation, rescission, or deactivation by the applicable Domain registrar or other registration authority; (iii) you have not taken any action that would impair your ability or right to transfer the Domain registration and no such action has been taken against you; (iv) the Domain has not been used in such a manner as to infringe the rights of any third party, including, but not limited to, trademark, 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 subject listing; (vii) you own and have the right to sell the content, if applicable, 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.
(e) The Seller agrees not to list any Domains that violate SmartMart’s Offensive Domain Name Policy, which is hereby incorporated by reference. SmartMart may refuse to list, or remove the listing for, any Domain which, in SmartMart’s sole discretion, may potentially infringe or violate the proprietary rights of any third person or any other Domain, or which, in SmartMart’s sole discretion, is inflammatory, offensive, inconsistent with SmartMart’s general policies or Acceptable Use terms, or otherwise may infringe any proprietary right of any third party.
(f) The Seller of a Domain agrees not to enter a bid for his/her own offer 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 which are measured and displayed by SmartMart.
(g) 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 Services.
(h) You understand and agree that SmartMart’s comment system cannot be used to communicate with the Buyer and/or Seller with the purpose of circumventing SmartMart’s user agreement and/or to alter/augment sales of domains, commission, or alter the terms of the purchase and sale.
(i) The Seller agrees to keep any data they have added to the Domain Marketplace up-to-date. If a Domain has been sold, he/she is to immediately remove it from their User Account. Furthermore, the Seller agrees to remove a Domain from the Domain Marketplace and/or Auction immediately if a warning has been issued, or as soon as any notice or knowledge has been received that the rights of a third party or applicable laws could be violated by the listing. This shall apply until legal clarification of the situation has been made.
5.1.4.1. Rejected and/or Blocked Domain Listings
SmartMart reserves the right, at any time, to reject the listing of any Domains into our Domain Marketplace and/or Auction or to remove and blacklist Domain listings which have already been entered, without prior warning, without giving any reasons and at any time, especially in the case of User’s violation of this Agreement, or suspected violation of rights of a third party concerning a Domain, or suspected violation of applicable laws.
5.2. Domain Transfer and Escrow Service
5.2.1. Description of Service
The Domain Transfer and Escrow Service offers Users SmartMart’s assistance with the purchase and transfer of ownership of Domains. SmartMart acts here neither as a Buyer or Seller, nor as the representative of a Buyer or a Seller, nor as a broker. SmartMart acts as a secure technical and financial intermediary and will securely hold the purchase price for the Buyer while the Seller transfers ownership of the Domain to Buyer. Upon conclusion of the Domain transfer process, SmartMart will release Buyer’s funds and forward the purchase price to the Seller, less applicable fees.
Drafting of custom Purchase and Sale Agreements or any legal consultations on the part of SmartMart are not included in the Service and must be obtained from User’s own legal representative. Please note that the Domain Transfer and Escrow Service is limited to the Domain and purchase price. Content, data, programming or other elements of the website/project and/or any additional consideration included in a purchase and sale agreement are outside the scope of the Domain Transfer and Escrow Service and are not protected as such. Buyer and Seller agree that they are solely responsible for the transfer of any and all elements of a transaction outside the Domain and purchase price and that once the Domain Transfer and Escrow Service is initiated, neither party will request cancellation due to a dispute over such.
5.2.2. Fees and Related Costs
The Domain Transfer and Escrow Service are provided for free to Buyers and Sellers conducting a purchase and sale on SmartMart’s Domain Marketplace. For Users who wish to order the Domain Transfer and Escrow Service for transactions agreed upon outside the Domain Marketplace, the amount of the fee for the Domain Transfer and Escrow Service is specified on the SmartMart Price List, which is located on the Site and subject to change from time to time.
When a Domain is transferred from the Seller to the Buyer, further costs can be incurred, based upon the participating registry and registrar providers. The responsibilities for these payment obligations are defined by the relationship of the Buyer or Seller to the provider. This can include, but is not limited to, the responsibility of the Seller to pay for a registration renewal when the domain is set to expire within the next sixty (60) days from the time agreement was reached.
5.2.3. Management of Domain Transfer
5.2.3.1. Reaching an Agreement
In the event that a purchase and sale agreement has been reached between the Buyer and the Seller during the course of a Domain Marketplace or Auction bidding process, SmartMart shall provide a standard online purchase and sale contract for Buyers and Sellers that is automatically tailored to the sale of the Domain that was the subject of their negotiation. Depending upon the processing stage of the transaction, the other User’s respective data may be made anonymous until the transaction is complete. Should either party fail to meet to their obligations under the respective agreement, the identity of the breaching User shall be provided to the injured User upon request.
5.2.3.2. Obligation of Buyer to Make Payment to Designated Escrow Account
After reaching agreement for the purchase and sale of a Domain, SmartMart shall contact the Buyer via email to request the transfer of the amount due to SmartMart’s escrow account, where it will be safeguarded until transfer of Domain ownership has been completed. Upon said request, the Buyer is obligated to remit payment of the amount owed to SmartMart’s escrow account.
5.2.3.3. Transfer of Domain
Once the full amount of the purchase price owed has been received by SmartMart’s escrow account, the process of transferring ownership of the Domain from the former owner (the Seller) to the new owner (the Buyer) shall commence. SmartMart 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 registration transfer process. SmartMart can only ensure the prompt and orderly transfer of Domain ownership if SmartMart’s instructions to the Buyer and Seller are strictly followed. As such, the Buyer and Seller are obligated to provide the required cooperation to each other and to SmartMart. Failure to cooperate may be considered by the injured party as a material breach of the relevant purchase and sale agreement.
5.2.3.3.1. Quick Transfer
If during the transfer of a Domain the related Buyer is not responding for a reasonable amount of time to SmartMart´s instructions after remitting payment, the Buyer is authorizing SmartMart to effectuate a “quick” transfer. SmartMart may in that case at its sole discretion conduct domain “pushes,” which includes creating a domain registrar account on behalf of the Buyer, utilising the contact information in the Buyer’s User Account. Once the registrar account has been created, and the domain has been securely pushed from Seller’s registrar account to the Buyer’s registrar, SmartMart’s transfer agent will give the Buyer their respective registrar account information, including password and login details. Transfer of domain ownership is transfer of control of the domain, and once the Buyer has control over the purchased domain, he/she cannot claim that SmartMart has not performed its duties under this User Agreement based solely on the fact that the domain is not at any specific domain registrar.
5.2.3.4. Successful Transfer and Payment of Purchase Price
Upon successful transfer of the Domain to the Buyer, payment of the purchase price owed to the Seller shall be remitted in a timely manner. A successful transfer of ownership of the Domain has taken place when the Buyer has gained technical control of the Domain and is capable of updating the Domain’s WHOIS record. In the event that SmartMart assumes temporary control of the Domain in an escrow capacity, then a successful transfer shall be considered to have been made at that moment in which SmartMart obtains control of the Domain and the Seller has lost control of this Domain.
If SmartMart assumes temporary control of the Domain, a Transfer Agent will instruct the Buyer to take over technical control. SmartMart shall not be held responsible for maintaining the Domain. If a Buyer does not take over technical control of a Domain within three (3) months after SmartMart took over temporary control of the Domain, SmartMart will not extend the Domain registration period. This may result in the lapse or expiration of the Domain. Buyer will not be compensated for this loss.
If, during the course of a bidding process in accordance with Section 5.1 above or the Domain Brokerage Service, the purchase and sale agreement has been concluded and the currency selected by the Seller or the currency assigned to the Seller is not identical to the agreed-upon currency, then the payment to the Seller shall be made in the currency he/she has selected or which has been assigned to him/her. The prevailing amount shall be the purchase price obtained after conversion and rounding work has been carried out in the currency selected by the Seller or the currency assigned to the Seller less any possible fee for the Domain Transfer and Escrow Service. In this case, the Seller shall not be entitled to demand the payment of the purchase price in another currency or to avail himself/herself of a different exchange rate than the fundamental exchange rate of SmartMart.
5.2.3.5. Unsuccessful Transfer and Repayment
In the event that the transfer of ownership is ultimately unsuccessful, the full payment submitted to SmartMart’s escrow account shall be returned to the Buyer. There shall be considered to be no ultimate failure of the transfer if the unsuccessful transfer of the Domain or web project to the Buyer is solely due to the fact that the Buyer has not undertaken the further required cooperative actions required upon his/her part after the payment of the purchase price and any additional fees if relevant. As stated in Section 5.1.3.4 (Legal Relationship as Between SmartMart, Buyer and Seller), SmartMart will always use its best efforts to effectuate the purchase and sale of a Domain. If an agreement has been made over SmartMart’s marketplace or auction platform between a Buyer and a Seller, absent new, material information presented to SmartMart, or unless the Buyer is claiming breach of contract or anticipatory breach of contract, SmartMart will move forward with a transaction. If SmartMart has received payment from the Buyer and the domain from the Seller, the domain will be forwarded to the Buyer and payment to the Seller accordingly. At that point, the aggrieved party, either Buyer or Seller, would have the right to initiate a legal process or proceeding against the other party. Both Buyer and Seller agree that SmartMart is not responsible or liable in any way for a transaction ending in this manner.
5.2.3.6. Publication Rights
SmartMart collects domain and sale price information for the purposes of utilizing the data to improve the Services and promote the value of domains to the public. While no personally identifiable information is included, the Buyer and Seller agree that SmartMart shall have the right to publish the name of a Domain sold as well as the respective purchase price on the Site or in other places for reference purposes. For sales occurring on the Domain Marketplace, this shall not apply if the Buyer or Seller objects to the publication, provided that objection must be received by SmartMart in writing before completion of the Domain transfer and escrow process. However, SmartMart will always publish and display a Domain name sale and the highest bid/selling price if the Domain was sold via Auction or with the support of a SmartMart domain broker. In an Auction, neither Buyer nor Seller may request that the Domain and details of the sale be withheld, but SmartMart will waive its publication rights for brokerage transactions if Buyer or Seller, whether represented by SmartMart or not, request and pay a fee equal to 2.5% of the sale price.
5.2.3.7. Proof of Purchase/Requests for Tax Information
SmartMart is neither the buyer nor seller in a Domain purchase and sale transaction. As such, if the Buyer requires an invoice of the purchase and sale transaction or is required to request tax information from the Seller, such as a form W-9, the Buyer needs to inform SmartMart of this request as soon as an agreement has been reached between the Buyer and Seller. SmartMart will then communicate the request to the Seller. The Seller agrees that he/she will comply with such request if the request is promptly made at the beginning of the transfer.
5.2.4. Penalties for Failing to Perform Obligations
SmartMart reserves the right to cancel the escrow and transfer of domain ownership if one of the parties to the purchase and sale agreement fails to fulfil its obligation to cooperate in the transfer process after two (2) requests are made by SmartMart via the email addresses provided in his/her user account (“Failed Transfer”).
In the case of a Failed Transfer, SmartMart reserves the right to collect any applicable commission fee from that party who has violated his/her obligation to cooperate in the completion of the transaction. Furthermore, any claims for damage compensation or contractual performance can be asserted by the non-breaching party against that party which violates his/her obligations under these terms or the terms of the applicable purchase and sale agreement. The Buyer and Seller agree that the injured party is entitled attorney’s fees from the other should legal action be necessary to enforce rights pursuant to the purchase and sale agreement.
THE BUYER AND SELLER AGREE THAT THE INJURED PARTY IS ENTITLED ATTORNEY’S FEES FROM THE OTHER SHOULD LEGAL ACTION BE NECESSARY TO ENFORCE RIGHTS PURSUANT TO THE PURCHASE AND SALE AGREEMENT.
5.2.5. Dispute between the Parties during Transfer
In the event that the purchase price to be paid by the Buyer has been transferred to the SmartMart escrow account and the Domain and/or website content has been transferred to the Buyer in whole or in part, neither party may seek cancellation of said ownership transfer or payment. In the event that the parties become involved in a dispute at any time during the transfer and escrow process, SmartMart may set a reasonable deadline for the parties to reach an agreement. In the event that said deadline passes without a resolution, SmartMart shall then be entitled to release the purchase price to the to the Seller and the Domain and/or website content to the Buyer in accordance with the purchase and sale agreement.
BUYER AND SELLER AGREE THAT SmartMart SHALL NOT BE LIABLE FOR DETRIMENT OR DAMAGES ORIGINATING FROM A FAILED TRANSFER PROVIDED THAT SUCH CLAIMS ARE NOT BASED UPON THE INTENTIONAL WRONGDOING OR GROSS NEGLIGENCE OF SmartMart, ITS STATUTORY REPRESENTATIVES OR VICARIOUS AGENTS.
This shall apply particularly in 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, or in the case where one of the contractual parties cannot be properly identified due to providing incorrect or misleading contact information.
5.2.6. Disclaimer of Warranties by SmartMart
SmartMart shall dedicate itself to the secure transfer of ownership of a Domain and payment of the purchase price after an agreement has been reached between the Buyer and the Seller.
SmartMart IS NOT THE SELLER, AND AS SUCH, MAINTAINS NO DUTY TO VERIFY THAT THE DOMAIN NAME AND/OR INTERNET PROJECT BEING SOLD AND TRANSFERRED DO NOT VIOLATE THE PRIORITY RIGHTS OF ANY THIRD PARTIES AND THUS MAKES NO WARRANTIES AS TO THE EXISTENCE OF CONFLICTING PRIORITY RIGHTS OF ANY THIRD PARTIES.
The 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.
FAILURE TO PERFORM AN EXAMINATION OF THE DOMAIN NAME AND/OR INTERNET PROJECT FOR THE EXISTENCE OF CONFLICTING RIGHTS, INCLUDING, BUT NOT LIMITED TO, PRIORITY OWNERSHIP RIGHTS, TRADEMARK RIGHTS, AND/OR VIOLATION OF APPLICABLE LAW, IS THE SOLE RESPONSIBILITY OF THE BUYER AND SELLER.
5.3. Domain Parking Service
The Domain Parking Service is an optional service for Users to ‘park’ their undeveloped domain names in order to generate revenue and increase the chance for of a sale. The complete Domain Parking Terms and Conditions define the terms of use for the Domain Parking Service and are hereby incorporated by reference. No advance notice is required for any of the prospectively effective change in the Domain Parking Service offered or terms associated therefore.
5.4. Domain Appraisal Service
The Domain Appraisal Service allows Users interested in making a purchase, sale or donation of Domains the opportunity to have its value appraised by SmartMart. The complete Domain Appraisal Terms and Conditions define the terms of use for the Domain Appraisal Service and are hereby incorporated by reference. No advance notice is required for any prospectively effective change in the Domain Appraisal Services offered or fees charged therefore.
5.5. Featured Listing & Category Showcase Services
The Featured Listing and Category Showcase Services allows Users to advertise their Domain listings on featured sections of the Site. SmartMart reserves the rights to refuse any showcase orders that violate SmartMart policy and which potentially violate the rights of third parties. A right to showcase advertising is not implied with the creation of a User account. The complete Domain Showcase Terms and Conditions define the terms of use for the Featured Listing and Category Showcase Services and are hereby incorporated by reference. No advance notice is required for any prospectively effective change in the Domain Showcase Services offered or fees charged therefore.
5.6. Domain Brokerage Service
A User who would like the assistance of a skilled SmartMart domain broker to actively seek out or market a Domain(s) that has already been registered may utilise the Domain Brokerage Service provided by SmartMart. Users who choose SmartMart’s Domain Brokerage Service authorise SmartMart to work on their behalf in an attempt to sell, purchase or lease the Domain of their choice, whether listed for sale at SmartMart or not. The complete Domain Brokerage Service Terms and Conditions define the terms of use for the Domain Brokerage service and are hereby incorporated by reference. No advance notice is required for any prospectively effective change in the Domain Brokerage services offered or fees charged therefore.
6. Liability Disclaimers and Indemnification
SmartMart is in no way responsible for the content of any web site owned or operated by a third party that may be linked to or from the Site or Services via hyperlink, whether such hyperlink is provided by SmartMart or by a third party. No judgement or warranty is made with respect to the accuracy, timeliness or suitability of the content of any web site to which the Site may link, including information on the web site regarding the SmartMart Site or Services. By providing access to other web sites, neither SmartMart nor its affiliates are recommending the purchase or sale of the stock issued by any company, nor are they endorsing products or services offered by any web site’s sponsoring organisation.
YOU AGREE THAT USE OF SmartMart’S SERVICES AND THE SITE IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. SmartMart EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SmartMart MAKES NO WARRANTY TO ANY PROSPECTIVE BUYER THAT THE DOMAINS LISTED BY SELLERS ON THE SmartMart DATABASE HAVE IN FACT BEEN REGISTERED, OR THAT THE SELLERS ARE THE LEGAL OWNER OF SUCH DOMAINS, OR THAT THEY ARE AUTHORISED TO ASSIGN/LICENSE SUCH DOMAINS. SmartMart MAKES NO WARRANTY THAT THE BUYER MAY USE THE DOMAIN OR THAT THE SELLER MAY TRANSFER THE DOMAIN WITHOUT VIOLATING ANY RIGHTS OF A THIRD PARTY. SmartMart MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, NOR DOES SmartMart MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SITE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF ANY MATERIAL AND/OR DATA DOWNLOADED FROM THE SITE OR ANY SERVICES OBTAINED THROUGH OR PROVIDED BY SmartMart IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY SUCH DOWNLOAD OR USE OF SUCH INFORMATION OR OTHER RELATED TRANSACTION. NO ADVICE OR INFORMATION THAT YOU MAY OBTAIN FROM SmartMart OR THROUGH THE SERVICES PROVIDED BY SmartMart SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED THEREIN.
You agree that, regardless of any statute or law to the contrary, except as prohibited by law, any claim or cause of action arising out of or related to this Agreement, the Site, or SmartMart’s products or Services, must be commenced within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
IN NO EVENT SHALL SmartMart, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). SmartMart’S LIABILITY, AND THE LIABILITY OF ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU HAVE PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. YOU AGREE TO INDEMNIFY AND HOLD SmartMart AND (AS APPLICABLE) SmartMart’S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY A THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SITE OR THE SERVICES, YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
7. Intellectual Property
All content, database information, data and services available on, and collected as a whole through this Site, are property of SmartMart, its affiliates, advertisers and licensors, and are protected by copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws in the United States and internationally. All rights not expressly granted herein are fully reserved by SmartMart, its affiliates, advertisers, and licensors. SmartMart’s licensors’ or other third-party materials, services or products referenced on this Site are common law or registered trademarks or service marks of such parties.
Solely to enable SmartMart to use your information, so that we are not violating any rights you might have in such information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, licensable right to exercise the copyright, publicity, and database rights (but no other rights) you have in your information, in any media now known or not currently known, with respect to Your Information. SmartMart will only use Your Information in accordance with our Privacy Policy.
If you believe that your work has been copied and is accessible on the Site in a way that constitutes copyright infringement, notify SmartMart’s designated agent in writing and provide the following information: your name; your email address; your mailing address; your phone number; the URL, path or other specific location where the allegedly infringing material is located; description of the allegedly infringed work, including (if available) the URL, path or other specific location where the copyrighted work may be found for comparison; and your relationship to the owner of the allegedly infringed work. Pursuant to European or US law, notifications of claimed copyright infringement should be sent to SmartMart’s Designated Agent. See Section 10 (How to Contact SmartMart).
All contents of the Site are: Copyright 2011 SmartMart GmbH and/or its suppliers. All rights reserved.
“SmartMart” is a registered trademark of SmartMart GmbH. The names of other companies and products mentioned herein may be the trademarks of their respective owners. SmartMart reserves any rights not expressly granted herein.
8. Term and Termination
Until and unless terminated by you or SmartMart, your status as an eligible or registered User will continue indefinitely, including any Domains listed for sale associated with your User Account, and fees for Services will be charged as described herein (see Section 4, Fees). SmartMart may terminate this Agreement and your access to the Site and related Services at any time, with or without cause, and with or without notice. Upon termination of your right to use the Site, you will no longer have access to any data or information you had previously created, maintained, managed, or stored in the Site or SmartMart’s systems. SmartMart is under no obligation to maintain any such data or information.
9. General
SmartMart manages the Site from its offices in Cologne, Germany. This Agreement is governed by the laws of Cologne, Germany, without regard to its choice of law rules You hereby consent to the jurisdiction of, and venue in, courts located in Cologne, Germany, in all disputes arising out of or relating to the Site, or Services, including any action commended by you against SmartMart or its affiliates. Use of the Site or Services is unauthorised in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this Section Nine. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SmartMart as a result of this Agreement or use of the Site or Services. SmartMart’s performance of this Agreement is subject to existing laws and legal processes, and nothing contained in this Agreement is in derogation of SmartMart’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by SmartMart with respect to such use.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. Unless otherwise specified herein, this Agreement constitutes the entire agreement between the user and SmartMart with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and SmartMart with respect to the Site or Services. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form, and any such printed, true, and accurate copy shall be deemed an original document for evidentiary purposes. Any failure of SmartMart to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. You may not rent, lease, licence, grant a security interest in, or otherwise transfer, assign, or sublicence your rights hereunder to any third party. At any time, SmartMart may, in its sole discretion and without providing notice or obtaining your consent, assign this entire Agreement or delegate some or all of its responsibilities hereunder.
10. How to Contact SmartMart: Please contact us via our contact form on the smartmart.com website.