Above.com Domain Name Escrow Terms
Transactions performed by a Buyer and Seller on the Above.com site, shall be governed by the Australian The Electronic Transactions Act 1999.
A person or entity offering domain names and intellectual property for sale, and desiring to use the Above.com site in order to close such a sale, shall hereinafter be referred to as ("Seller").
A person or entity desiring to purchase domain names and intellectual property from a Seller, by use of the Above.com site for completing the purchase shall be referred to as ("Buyer").
The use of the Above.com site (by the Buyer and Seller) for purposes of effectuating an escrowed transfer of ownership of domain name and intellectual property shall be referred to as a ("Transaction").
The term "Close of Escrow" shall refer to the completion of the Transaction by Buyer and Seller.
Funds deposited into escrow by the parties shall be referred to as "Escrow Funds".
Instructions and Deposit of Funds into Escrow
Once the Buyer and Seller have agreed to a price for a specific underlying Transaction, and both have agreed to the Above.com Domain Name Escrow Service Terms, these instructions shall constitute a binding agreement between all parties.
The parties acknowledge that by entering into the Transaction Escrow Instructions, they are able to electronically receive the Transaction Escrow Instructions, including via the Above.com's site, or by email, download the Transaction Escrow Instructions and print the Transaction Escrow Instructions. Should any of the parties be unable to receive the Transaction Escrow Instructions electronically, download or print the Transaction Escrow Instructions, Above.com shall email or fax a true and correct copy of the instructions to the person within two working days, upon request from the party.
Should it become necessary to add a supplemental instruction(s), or to make any addition to, deletion from, or alteration to the Transaction Details, all parties (Buyer, Seller and Above.com) must execute (by digital signature or by a method mutually agreed upon by both parties) any supplemental instruction, addition, deletion or alteration thereto (collectively the "Supplemental Escrow Instruction(s)). Above.com may accept instructions that are created, generated, sent, communicated, received or stored by electronic means or received via fax or email, and the parties to the Transaction hereby agree to conduct the Transaction electronically.
Above.com reserves the right to reject any Supplemental Escrow Instructions and to terminate the Transaction as provided herein.
In the event when Domain Name(s) are being transferred in this Transaction, Above.com is instructed to close only when the transfer of the Domain Name has been confirmed by Above.com (at its option) or the Buyer has complied with its obligations and accepted the transfer as applicable.
For domain names currently registered with the ICANN accredited Above.com Registrar, Above.com will provide its own domain escrow account, to help facilitate such transactions. Upon execution of a Transaction, Above.com shall place a hold on specific Domain Names(s) and push them to our own domain escrow account.
For domain names currently not registered with the ICANN accredited Above.com Registrar, Above.com will provide its own domain escrow account, specially created at the specific accredited ICANN registrar, to help facilitate such transactions. Upon execution of a Transaction, Above.com shall request from the Seller to push/transfer the domain to our own domain escrow account held at the specific registrar.
Domain names that move from the Seller's account to Above.com escrow accounts (where Above.com becomes the legal owner and registrant) before funds are received into escrow from Buyer. For clarity, Buyer and Seller acknowledge that Above.com (or one if its affiliates) will become the legal owner and registrant of the domain name during the escrow process before reselling the domain name to the Buyer.
Both the Seller and Buyer agree to indemnify and hold harmless Above.com and it associated entities,
Disbursement of Funds
Once Above.com completes a successful push or transfer of the Domain Name(s) to the Buyer, to the specified user account as provided by Buyer, Above.com will then begin the process of disbursing the funds to Seller as per escrow fees or as mutually agreed. Disbursement of Escrow Funds are made within 2 working days on a successful push or transfer of the Domain Names(s).
Cancellations and Refunds
Cancellations made before Domain Names(s) are pushed or transferred to Buyers registrar account, the Buyer hereby agrees that the entire escrow fee shall be deducted from the Escrow Funds received and the remainder will be refunded to the Buyer within two working days. Buyer and Seller also agree that Seller may request the escrow transaction be cancelled and the Buyer refunded, less escrow fees, at any time.
In the event of any dispute, claim, question, disagreement or breach arising from or relating to Above.com's Domain Name Escrow Terms, or the Transaction Escrow Instructions, including but not limited to the manner in which Escrow Funds are disbursed, Buyer and Seller hereby agree to use their best efforts to consult and negotiate in good faith, to reach a solution satisfactory to all parties.
If the parties reach a resolution, Buyer and Seller agree to promptly notify the Above.com in writing of the terms and conditions thereof. If either Buyer or Seller determine that they are unable to reach a resolution, all parties agree that the dispute shall be submitted to arbitration. In the event of a dispute, Buyer and Seller are aware that (in addition to and without limiting any of Above.com's rights under the applicable Terms) Above.com reserves the right to suspend its activities and take no action until such time as the dispute is resolved. Above.com or its affiliates shall have no responsibility and/or liability to initiate and/or continue to update either party regarding status.
Should the Above.com site or our services be unavailable, or if Buyer and Seller jointly desire to extend any applicable timelines relating to the Transaction, then we may, but shall not be obligated to, extend such times as set forth in the Transaction Escrow Instructions at our sole and absolute discretion, and Above.com will provide prompt email notification of any extension to both parties. With the exception of Above.com extensions, the Buyer Inspection Period and the Seller Inspection Period as set forth in these Instructions and the Transaction Escrow Instructions shall not be modified.
If, for any reason, you are unable to gain access to the Above.com site to inform Above.com of any acceptance, rejection or issues with change of ownership of domain names, then you must notify the Above.com within the applicable time limit.
Timing of Payment
All Escrow Funds due to Buyer and Seller shall be paid within two working days following the successful push or transfer of the domain to the Buyer registrar user account. In the event that Buyer makes any form of overpayment, we shall reimburse the overpayment upon the Close of Escrow. In the event that Buyer or Seller is overpaid for any reason, Buyer and Seller agree to promptly return the funds to Above.com. Buyer and Seller shall also hold Above.com harmless from any loss that may arise due to currency conversion.
Method of Payment
In the event Buyer chooses credit card as the method of payment, we are hereby authorized to charge to Buyer's credit card supplied. Buyer agrees to provide Above.com with any documentation required to validate Buyer's identity. Above.com reserves the right to refuse a credit card or other form of payment for any reason, and we are under no obligation to disclose the reason for the credit card or other form of payment refusal. If a credit card or other form of payment is refused, the Transaction shall be considered cancelled upon notification to the Seller and Buyer of the refusal. All escrow fund disbursements shall be made to Seller or Buyer (in the case of a refund), by mailing an account check, PayPal payment, or Wire Transfers, or as Credit to Above.com user account, unless otherwise requested by the payee. Both Buyer and Seller understand that there are handling and processing fees due to Above.com when credit card, PayPal, and Wires Transfers are processed as payment for domain name transactions.
Finality of Payment
Upon any payment or other disposition of the Escrow Funds, the Transaction shall be deemed closed and final with no further obligation on the part of Buyer, Seller, or Above.com or Trellian.
In accordance with the Australian The Electronic Transactions Act 1999, all Escrow Funds shall be deposited in a non-interest account held by Trellian. Buyer and Seller acknowledge that the maintenance of such escrow account may result in Trellian and/or affiliates being provided with certain bank services, accommodations, interest payments, or other benefits by the bank. All such services, accommodations, interest payments, and other benefits shall accrue to Trellian's account, and Trellian and its affiliates shall have no obligation to account to Buyer or Seller (or any other party to any escrow) created hereunder for the value of such services, accommodations or other benefits.
Communication Between Parties
Unless otherwise agreed upon by all parties, all communication from Above.com to Buyer and Seller will be by email to the last address provided in the user profile. Buyer and Seller agree to use the Above.com site user account section to verify the accuracy of all email communications from Above.com. Buyer, Seller and the Above.com shall only be required to agree to employ alternative communication methods which are reasonable accommodations under the circumstances of the Transaction.
If we believe in our sole, good faith opinion that the Transaction violates the Domain Name Escrow Terms or the Transaction violates or is likely to violate any applicable law, rule or regulation, then we may terminate the Transaction. Above.com will disperse any Escrow Funds received as per Cancellations and Refunds section of this agreement.
If any dispute arises between the Buyer and Seller, and such dispute is not resolved within a reasonable time, or if any conflicting demand shall be made upon Above.com, Above.com shall not be required to take any action until such time as Above.com receives written instructions signed by all parties.
The natural person who agrees on behalf of the Buyer or Seller certifies that Buyer or Seller is at least eighteen years of age and that he or she has read and agrees to be bound by the terms of these General Escrow Instructions, and the Transaction Escrow Instructions. If the natural person is acting on behalf of a corporation, limited liability company, partnership, trust or business entity of any type, by agreeing, he or she represents and warrants that he or she has the authority to bind said entity.
The Buyer and Seller understand that the Domain Name Escrow services DO NOT include any representation of warranty, either expressed or implied, and that Above.com assumes no responsibility for the condition of the ownership, sufficiency of instruments conveying ownership, or agreements therefore; payment or reporting of sales tax or other taxes, utilities, future performances of Buyer and Seller, transfer of any insurance policies or warranties, or any other matters related to domain name or this escrow NOT specifically included herein shall be considered outside of escrow and neither Above.com nor its affiliates or associated entities shall have any further responsibility and/or liability for same. Above.com undertakes to perform such duties and only such duties as are specifically set forth in these Domain Name Escrow Terms, and no implied covenants or obligations shall be deemed to apply to Above.com. Above.com may act upon any instrument, certificate, opinion or other writing believed by it in good faith to be genuine, and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this these Domain Name Escrow Terms. Above.com may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. Anything in these Domain Name Escrow Terms to the contrary notwithstanding, in no event shall Above.com be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits). The limitations of liability herein are in addition to and not in lieu of any further limitations of liability set forth in the applicable Above.com Terms.
Buyer and Seller hereby agree severally and not jointly (one-half to be borne by Buyer and one-half to be borne by the Seller) to indemnify Above.com and its associated entities for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of Above.com, arising out of or in connection with carrying out its duties hereunder and accepting the Escrow Funds, including the costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder (including reasonable fees, expenses and disbursements of its counsel). The foregoing indemnities shall survive the resignation of Above.com or the termination of the Transaction and are in addition to and not in lieu of any further indemnities set forth in the applicable Above.com Terms.
In case of conflict between any of the terms of these Domain Name Escrow Terms and our Above.com Terms, these Escrow Policies shall control. Any agreement between Buyer and Seller that is not reflected in either the Transaction Escrow Instructions, these Domain Name Escrow Terms, in no way binds Above.com or any of its affiliates or associated entities.
This Agreement will be construed in accordance with and governed exclusively by the laws of the State of Victoria, Australia.
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Headings are for reference purposes only and in no way define, limit, construe or describe the cope or extent of such section.
If performance hereunder is interfered with by any condition beyond a party's reasonable control, the affected party will be excused from such performance to the extent of such condition.