Terms and Conditions for the Auction of the <Fashion.com> Domain Name
These Terms and Conditions for the Auction of the <Fashion.com> Domain Name (these “Terms and Conditions”) are an agreement by and among (i) you as the bidder and/or the buyer of the domain <Fashion.com> (the “Domain”) under the on-line auction process set forth below (“you” or “Bidder”), (ii) NAI Ltd., a British Columbia corporation acting as agent for the Seller (the “Seller Agent”, “we”, “us”, or “our”), (iii) the sellers of the Domain (the “Seller”), (iv) Dutch online auction firm Logan ICT Services b.v., doing business as Auction-Experts (www.auction-experts.com), which will conduct and oversee the auction (“Auction-Experts”), and (v) California-based Internet Escrow Services, Inc., doing business as Escrow.com, which will serve as the escrow agent (the “Escrow Agent”). Throughout these Terms and Conditions, the Seller and Seller Agent are referred to as the “Seller Parties” and Auction-Experts and the Escrow Agent are referred to as the “Auction Providers.”
These Terms and Conditions, together with any other rules and policies set by the Seller Parties and/or the Auction Providers and which are incorporated herein by reference (the “Additional Terms”, and together with these Terms and Conditions, the “Auction Terms”), set out the terms and conditions applicable to the sale of the Domain (the “Auction”) on or through the <Fashion.com> site and/or its sub-sites (the “Site”) and form the entire agreement between you, the Seller Parties, and the Auction Providers with respect to the Auction. In the event of a conflict between these Terms and Conditions and any Additional Terms, the applicable Additional Terms shall prevail.
We have the right to amend the Auction Terms from time to time and at any time, in our sole discretion, and we shall inform you of any such material amendments by posting notices on the Site.
You should read the Auction Terms carefully before participating in the Auction. By registering as a Bidder on the Site, you acknowledge that you are bound by the Auction Terms.
I AUCTION OVERVIEW
The auction for the Domain will incorporate both private bidding, beginning October 24, 2019, and as necessary, a public auction scheduled for November 21, 2019.
II PRIVATE BIDDING PHASE
- The private bidding process will be conducted as follows: those interested in acquiring the Domain can visit the Site beginning Thursday, October 10, 2019 at 2 PM (New York City local time) to register as a Bidder through the links provided on the Site.
- Registration will require potential Bidders to supply basic credentials to confirm their identity, along with other information and a nominal $25,000 US down payment to be held by the Escrow Agent. This payment will be non-refundable for the winner of the Auction (and credited towards the final purchase price), but will be refunded to all other Bidders once a winner has been announced.
- Bidding will begin on Thursday, October 24, 2019 at 2 PM (New York City local time), with pre-qualified, registered bidders being able to enter a single private bid online through links provided on the Site. The bidding process will be conducted by Auction-Experts, based in Amsterdam.
- After the private bidding begins, any bid that (i) meets or exceeds the Domain’s “Buy It Now Price” (as described below), and (ii) is higher than all other private bids submitted as of 11 PM (New York City local time) on the day that a private bid first exceeds the Buy It Now Price, will be named the winning bid.
- The Domain’s “Buy It Now Price” will be remitted confidentially in writing to a reputable arm’s length third-party (the “Verification Agent”) to be announced before the Auction begins, and such price is not subject to change once delivered.
- Each Bidder is limited to one private bid in total. There will be no opportunity to increase your bid against other Bidders, as all bids are confidential. If, at the end of the private bidding phase, the highest bid is below the Buy It Now Price, the Seller reserves the right to accept or reject the highest private bid, in its sole discretion.
- As further described below under Section V – “Payment, Closing and Escrow”, payment for the winning bid must be delivered to the Escrow Agent within five (5) business days (State of California) of the winning Bidder receiving notice that their bid has been accepted. Once funds have been received by the Escrow Agent and the transfer of the Domain to the Buyer has been confirmed, the other Bidders will be informed that the Domain is no longer available. Details regarding the winner’s identity and the amount to be paid will remain confidential and subject to a Non-Disclosure Agreement between the Seller and the Buyer.
- Any successful bidder must satisfy the Buyer criteria detailed during the registration process.
- If no private bid is successful during the private bidding phase, all private bids will remain binding and confidential and carry over to the public phase of the Auction. Bidders are still eligible to win if their bid is the highest private bid and higher than the top public auction bid.
- Private bidding closes at 11 PM (New York City local time) on Thursday, November 7, 2019.
III PUBLIC AUCTION PHASE
- If there is no winning private bid during the private auction phase, the highest price resulting from the public auction on Thursday, November 21, 2019 will be compared to the highest private bid, with the higher of these two Bidders becoming the winning Bidder, subject to the conditions set forth herein and described under Section IV – “Public-Private Winner” below. There is no Buy It Now Price for the public auction.
- Private Bidders are automatically eligible to make additional bids in the public auction with their existing credentials, giving them the flexibility to continue bidding if their private bid is surpassed at any point. In such cases, each Bidder acknowledges that the identity of the winning public Bidder and the amount of the winning public bid may not be confidential.
- The public auction will be an ascending price auction, whereby Auction-Experts will begin online bidding at a given level, with each subsequent electronic bid required to be higher than the previous bid by a minimum increment—until no participant chooses to bid higher. If a Bidder wanting to participate in the public auction has not previously registered for the private bidding process, they must be fully registered for the public auction, including their payment of a nominal $25,000 US down payment to be held by the Escrow Agent, before 11 PM (New York City local time) on Monday, November 18, 2019, in order to be eligible.
- The public auction will begin at 2 PM (New York City local time) on Thursday, November 21, 2019. It is initially scheduled to last an hour, with any bids received during the final ten (10) minutes of the auction’s end automatically extending the auction for another twenty (20) minutes to allow for further bidding, with multiple extensions possible until Bidders no longer continue to bid.
IV PUBLIC-PRIVATE WINNER
- The highest price in the public auction will be compared to the highest price from the private bidding with the higher of these two prices being declared the winner, assuming this successful bid is at or above the Reservation Price, as described below.
- The “Reservation Price” for the public auction phase is an amount set in writing by the Seller and delivered confidentially in writing to the Verification Agent prior to the commencement of the public auction. In the event that no private or public bid has exceeded the Reservation Price at the conclusion of the public auction, the Seller may accept or reject the highest bid, in its sole discretion. The Seller is under no obligation to sell the Domain in the event that the Reservation Price is not exceeded.
- If there were a tie between the top private and public prices, the two bidders will be asked to submit additional bids until the tie is broken.
V PAYMENT, CLOSING & ESCROW
- Prior to the commencement of the Auction the Domain shall be deposited in escrow with the Escrow Agent in order to facilitate its transfer to the Buyer.
- The winning Bidder is required to transfer the full purchase price within five (5) business days (State of California) to the Escrow Agent. If these funds are not received by the deadline, the Seller has the right to sell the Domain to the second-place bidder, to not sell, or to sell through other means, including the possibility of another auction.
- As mentioned above, the winning bid amount will be paid in its entirety by the Buyer through a single payment to the Seller. However, if, at the Seller’s sole discretion, the Buyer represents an acceptable credit risk, the Seller may elect to accept payment over a maximum of three years, subject to additional terms and conditions set by the Seller, including with respect to covenants and defaults.
- The winning Bidder will be required to execute a definitive purchase agreement with the Seller, in a form and with terms and provisions required by the Seller (the “Purchase Agreement”). Bidders acknowledge and agree that the Purchase Agreement will reflect that the Domain is being sold on an “as-is, where-is” basis, and will not provide any representations, warranties, guaranties, or indemnification whatsoever to the Buyer, including, but not limited to, the matters concerning trademarks, trade names or similar intellectual property rights, conflicts or claims of infringement.
- Upon execution of the Purchase Agreement and receipt of the full purchase price in the account designated by the Escrow Agent, the Escrow Agent, in whose name the Domain has been registered, shall transfer the Domain by standard documentation to the Buyer.
- The Seller makes no representations or warranties regarding the Domain and it is the sole responsibility of the Bidder and/or potential Buyer to conduct a full and proper due diligence in this respect. By participating in the Auction you acknowledge and agree that you are relying solely upon your own due diligence and that none of the Seller Parties or the Auction Providers have any responsibility for providing any due diligence information regarding the Domain and you understand that the Seller Parties and the Auction Providers expressly disclaim any such responsibility.
- As set forth in the Purchase Agreement, any applicable sales taxes will be the Buyer’s responsibility and expense, along with all costs associated with services provided by the Escrow Agent related to the Auction.
VI MISCELLANEOUS PROVISIONS
Personal Information & Privacy
As a part of the bidding process, you may be required to provide personal information to Auction-Experts or to the Escrow Agent that is considered private or personally identifiable information.
It is recommended that you review the privacy policies or privacy notices of those entities in order to understand your rights and their obligations as to the collection, processing, use, sharing and storage of that information before bidding.
For Auction-Experts, you can find their privacy statement at: https://auction-experts.com/privacy-statement/.
For the Escrow Agent, you can find their privacy statement at: https://www.escrow.com/escrow-101/privacy-policy
Auction-Experts and/or the Escrow Agent may request and retain a copy of government-issued identification, such as a passport or driver’s license, as well as other personal information, to use (i) to enforce the Auction Terms; (ii) to carry out identity or credit checks; and/or (iii) to communicate with you.
In the context of the Auction, Auction-Experts and/or the Escrow Agent may disclose your personal information to third-party service providers, including professional advisors, and credit agencies as necessary to facilitate the auction and any transaction with a successful bidder. These third-party service providers may be located anywhere in the world, including countries which may not offer equivalent protection of personal information to that offered in the country where you reside.
The Escrow Agent and Auction-Experts will be using this information only for purposes related to the Auction, and for no other purpose. The information will not be sold to third parties. The information provided will be retained for only as long as is necessary to facilitate the auction, a transaction with the successful bidder and to comply with legal obligations.
Your identity and bid during the private phase of the auction will remain confidential in keeping with the rules of the private bidding. Your bids during the public phase of the auction, should one be required, will be made public as you bid. Your name and/or the identity of your organization may become known if you become involved in the public auction process.
Given the above explanation related to the use of personal information, and its protection as described, you expressly consent to the collection, processing, use, sharing, storage and/or the transfer of your personal information.
Disclaimers and Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE SELLER PARTIES OR THE AUCTION PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF REVENUE OR ANY WASTED EXPENDITURE, WHETHER DIRECTLY OR INDIRECTLY. IN NO EVENT SHALL ANY OF THE SELLER PARTIES’ OR THE AUCTION PROVIDERS’ LIABILITY EXCEED $25,000.
THE LIMITATIONS IN THIS SECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT THE SELLER PARTIES OR THE AUCTION PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE SITE AND THE AUCTION ARE ALL PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
THE SELLER PARTIES AND THE AUCTION PROVIDERS MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY AVAILABLE LAW, FOR: (I) ERRORS OR FAILURES TO EXECUTE BIDS PLACED OR PURCHASES MADE ON THE SITE, INCLUDING WITHOUT LIMITATION, ERRORS OR FAILURES CAUSED BY (A) LOSS OF CONNECTIVITY; (B) ISSUES PERTAINING TO SOFTWARE MALFUNCTION; (C) GLITCHES, BUGS OR INACCURACIES ON OUR WEBSITE; (D) YOUR USE OF OR YOUR INABILITY TO ACCESS THE SITE; (E) YOUR INTERNET CONNECTION, COMPUTER OR MOBILE DEVICE; AND (F) ANY VIRUSES AND OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING, OR LINKING TO, THE SITE.
The Auction Terms, as may be amended or supplemented, set out the entire agreement between you, the Seller Parties and the Auction Providers, with respect to the transactions contemplated herein and supersede all prior and contemporaneous written oral or implied understandings, representations and agreements.
The Auction Terms are not assignable by you without our prior written consent but are binding on your successors, assigns and representatives.
Should any provision of the Auction Terms be held void, invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect.
No failure by any party to exercise, nor any delay in exercising, any right or remedy under the Auction Terms shall act as a waiver or release thereof in whole or in part.
Applicable Law and Jurisdiction
The Auction Terms shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of laws principles.
You agree that any dispute, claim or controversy arising out of or relating to the Auction Terms, the conduct of the Auction, your use of the Site and any matters related to the foregoing, or any contractual or non-contractual disputes or claims arising from, any of the foregoing (collectively "Disputes") will be settled by binding arbitration. You acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and us agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims and may not preside over any form of class action proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of the agreement contained in the Auction Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration act will govern the interpretation of this section.
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and us agree otherwise, the arbitration will be conducted in San Francisco, California. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the timeframe specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules.