1. Introduction
This Atak Domain Domain Transfer Agreement (this “Agreement”) is entered into by and between Atak Domain Ltd. Sti. (“Atak Domain”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Atak Domain’s Domain Transfer Service (“Domain Transfer Service” or the “Service”). Your acceptance of this Agreement indicates that you have read, understand and agree to the terms of this Agreement, along with
Atak Domain’s User Agreement, which is hereby incorporated by reference. Any capitalized terms not defined within this Domain Transfer Agreement shall have the meaning as described in the Atak Domain User Agreement. In the event any of the terms found herein conflict with the Atak Domain User Agreement, the terms of this Agreement shall control.
If Atak Domain intends to amend this Domain Transfer Agreement, Atak Domain will notify you thereof. If you do not object thereto in due form or in due time, the amended Domain Transfer Agreement shall take effect two (2) calendar weeks after receipt of the notice. An objection is only deemed to have been made in due form and in due time if it is made in writing and is received by Atak Domain within two weeks after receipt of the notice. Atak Domain shall notify you of the possibility of filing an objection and of the form and time limit therefor and the legal consequences of failing to file an objection in due form and in due time.
Unless otherwise agreed between Atak Domain and you, side agreements, amendments, or addenda to this Agreement are not valid unless set forth in written form. Any waiver of this written form requirement is also not valid unless set forth in written form.
These terms and conditions are drafted in English, German, French, Spanish and Chinese language. In the case of any inconsistency between the English version and the other versions, the English version will prevail.
2. Description of Domain Transfer Service
The Domain Transfer Service offers Atak Domain's assistance with the transfer of a registration of, or legal right to register, an Internet domain name (“Domain”) that is the subject of a purchase and sale agreement whereby a domain buyer (“Buyer”) has agreed to purchase the Domain from a domain owner (“Seller”) for an agreed upon amount (“Purchase Price”).
Content, data, programming or other elements of the website/project and/or any additional consideration included in a purchase and sale agreement between Buyer and Seller are outside the scope of the Domain Transfer Service and the transfer or payment for such shall be the sole responsibility of Buyer and Seller. 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 Service is initiated and accepted by Atak Domain, neither party will request cancellation due to a dispute over such.
Drafting of custom purchase and sale agreements, enforcing the terms of such agreements between Buyer and Seller, or any legal consultations on the part of Atak Domain are not included in the Service and must be obtained from User's own legal representative.
3. Rights and Duties of Atak Domain
Atak Domain acts here neither as a Buyer or Seller, nor as the representative of a Buyer or a Seller, nor as a broker. Atak Domain reserves the right to review and accept or reject any orders for the Domain Transfer Service in its sole discretion. This includes, but is not limited to, rejecting any orders in which the Purchase Price is less than the fees owed to Atak Domain pursuant to this Agreement, the Price List, or any other agreement for services related to the Domain.
Atak Domain shall provide all instructions and any materially related information as known to Atak Domain to Buyer and Seller through the Transfer Center section of the Atak Domain Site. You shall not hold Atak Domain responsible to reach out to you through other contact information listed in your User Account. You will be emailed via the email address listed in your User Account when communications are posted to the Transfer Center. Not being aware of any communications posted to the Transfer Center shall not be grounds to release you from any of your obligations in this Agreement.
3.1. Transferring the Domain
Atak Domain shall 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. Atak Domain can only ensure the prompt and orderly transfer of the Domain if Atak Domain's instructions to the Buyer and Seller are strictly followed.
A successful transfer of the Domain has taken place when the Seller has relinquished technical control of the Domain and no longer needs to take any actions to allow the Buyer to gain technical control of the Domain (“Successful Transfer”). In lieu of direct knowledge of the shift in technical control, you acknowledge that a Successful Transfer will also be considered to have taken place if (a) the Buyer modifies the Domain’s public WHOIS record, (b) Atak Domain receives confirmation from the Buyer’s registrar or the registry that the Buyer has control of the Domain, (c) the Buyer confirms receipt of the Domain in writing (including through the Transfer Center) or (d) the Buyer has not replied to Atak Domain’s requests for confirmation of Buyer’s control of the Domain within five (5) days of the first request from Atak Domain. In the case of the latter, Buyer’s silence in response to Atak Domain’s requests shall constitute Buyer’s confirmation of control of the Domain.
A Successful Transfer may also occur in those cases where Atak Domain, at its sole discretion, assumes temporary control of the Domain on behalf of the Buyer and Seller to effectuate the transfer. In the event Atak Domain assumes control of a Domain during the transfer process, Atak Domain is not obligated to Buyer or Seller to maintain or alter the Domain’s domain server settings or otherwise display content of any kind on the Domain.
3.2. Registrar Accounts
Atak Domain may, at its sole discretion, coordinate with the Buyer or Seller’s registrars to obtain control of the Domain in order to expedite the Service. This may take the form of temporarily holding the Domain in a registrar account assigned to Atak Domain. Buyer and Seller authorize Atak Domain to transfer the Domain to a registrar account assigned to the Buyer only once the Buyer has remitted payment as per Section 4.2. Both Buyer and Seller acknowledge that Atak Domain is at no point the owner or registrant of the Domain and you agree to indemnify Atak Domain for any reasonable damages or costs incurred should the Domain be used to infringe upon the rights of a third party.
3.3. Purchase Price
Atak Domain may, at its sole discretion and where in compliance with local regulations, require Buyer to remit the Purchase Price to a bank account owned by Atak Domain in order to expedite payment to the Seller and ensure payment of any fees owed by either party to Atak Domain. The Purchase Price shall be safeguarded on Buyer’s and Seller’s behalf until disbursed to the Seller. Atak Domain shall only disburse the Purchase Price to the Seller after the Seller has released control of the Domain to the Buyer or to Atak Domain.
3.4. Anonymity
Atak Domain may, at its sole discretion, restrict the identity of the other User during any portion of the Domain Transfer Process to provide anonymity for the parties to the purchase and sale agreement. Both during and after the Domain Transfer Process, Atak Domain shall not provide any identity information beyond the name, address and e-mail address of the other User without that User’s explicit consent unless required by law.
3.5. Disputes between Buyer and Seller
BUYER AND SELLER AGREE THAT ATAK DOMAİN SHALL NOT BE RESPONSIBLE FOR SEEKING ENFORCEMENT OF ANY PURCHASE AND SALE AGREEMENT.
In the event that the Buyer and Seller become involved in a dispute at any time during the Domain Transfer Service, Atak Domain may temporarily stop providing the Service at its sole discretion and may set a reasonable deadline for the parties to reach an agreement. In the event that said deadline passes without a resolution, Atak Domain reserves the right to cancel the Domain Transfer Service. At that point, the aggrieved party, either Buyer or Seller, may exercise their right to initiate a legal process or proceeding against the other party. Both Buyer and Seller agree that Atak Domain is not responsible or liable in any way for a purchase and sale transaction ending in this manner.
3.6. Cancellation of the Service
Atak Domain reserves the right to cancel the Domain Transfer Service ("Failed Transfer") for the following reasons. Atak Domain may cancel the Domain Transfer Service if any provisions of the purchase and sale agreement conflict with the provisions of this Agreement. Atak Domain may cancel the Domain Transfer Service because of a dispute between the Buyer and Seller pursuant to Section 3.5. Atak Domain may cancel the Domain Transfer Service if Buyer or Seller fails to fulfill its obligation to cooperate in the transfer process after two (2) requests are made by Atak Domain via the Transfer Center. Atak Domain may cancel the Domain Transfer Service if the Service violates the local regulations of either Atak Domain’s, the Buyer’s or Seller’s jurisdiction. Atak Domain may cancel the Domain Transfer Service if either party to the purchase and sale agreement materially breaches this Agreement.
If Atak Domain has obtained control of the Domain pursuant to Section 3.2, Atak Domain shall return the Domain to the Seller if payment has not been remitted to the Seller or, otherwise, Atak Domain shall transfer the Domain to the Buyer. If Atak Domain has received the Purchase Price pursuant to Section 3.3, Atak Domain shall return the Purchase Price to the Buyer if the Domain has not been transferred to the Buyer or, otherwise, Atak Domain shall disburse the Purchase Price to the Seller.
Should either party fail to meet to their obligations under this Agreement or the purchase and sale agreement, Atak Domain shall provide the identity of the breaching User to the injured User upon request.
Provided that a claim originating from a failed transfer is not based upon the intentional wrongdoing or gross negligence of Atak Domain , its statutory representatives or vicarious agents, buyer and seller agree that Atak Domain shall not be liable for detriment or damages, originating from a failed transfer caused by, but not limited to, either buyer or seller (i) Rejecting the proper completion of transfer-related documents, (ii) Impeding the execution of the transaction in another way, or (iii) In the case where one of the contractual parties cannot be properly identified due to providing incorrect or misleading contact information.
3.7. Subcontractor
You acknowledge and agree that Atak Domain may utilize the assistance or service of a third-party provider to fulfill its obligations under this Agreement so long as the identity of the provider is disclosed to you and you will not incur any additional cost for Atak Domain’s use of the provider’s services. You hereby authorize Atak Domain to share confidential information regarding the transaction with such a third party provided that the third party is bound to the same degree of care as Atak Domain to protect that information.
4. Rights and Duties of Domain Buyer
The provisions of this Section 4 shall apply to you for any Transaction in which you are the Buyer.
4.1. Reaching an Agreement
If you have purchased the Domain during the course of a Domain Marketplace bidding process, you are bound by the standard online purchase and sale agreement supplied by Atak Domain and tailored to the Domain that was the subject of the negotiation. If you have purchased the Domain in conjunction with Atak Domain’s Brokerage Service, you are bound by the purchase and sale agreement negotiated between you and the Seller. In all other cases, you hereby opt to use the standard online purchase and sale agreement supplied by Atak Domain and
available for review here unless you provide a copy of a different purchase and sale agreement to Atak Domain when initiating the Domain Transfer Service.
You agree to waive any right to rescind this agreement and/or the purchase and sale agreement with the seller, whether or not such right of rescission is based on local law or contract. Furthermore, you explicitly agree not to invoke any right of recession as a justification to seek cancelation of this agreement and/or the purchase and sale agreement with seller.
4.2. Remitting Payment
You agree to promptly remit payment of the Domain Purchase Price upon receipt of instructions from Atak Domain. You agree that Atak Domain, at its sole discretion, shall determine whether to accept payment in the Contract Currency or your User Currency (as per Section 6 below) and that you are not entitled to demand Atak Domain remit payment in the other currency, another currency, or apply a different exchange rate.
In cases where this is to a bank account under Atak Domain’s control, the Purchase Price will be safeguarded on Seller’s and your behalf. Atak Domain reserves the right to apply the payment, or any part thereof, to any outstanding obligations you owe to Atak Domain before applying payment to the Purchase Price. You acknowledge that failure to remit sufficient funds to cover any outstanding obligations you owe to Atak Domain and the Purchase Price is not grounds to release you from any obligations of the purchase and sale agreement.
If you require an invoice or tax information (such as a form W-9) related to the purchase and sale agreement, you shall inform Atak Domain of this requirement prior to remitting payment. Atak Domain shall communicate the request to the Seller as Atak Domain is not a party to the purchase and sale agreement and cannot furnish those documents. You agree that you shall not portray Atak Domain as the Seller of the Domain to any third party. Failure to receive these documents subsequent to remitting payment shall not be grounds to release you from any of your obligations in this Agreement.
4.3. Transferring the Domain
You agree to cooperate with all of Atak Domain’s instructions regarding the technical transfer of the Domain registration. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Seller as a material breach of the purchase and sale agreement.
Should you not respond to Atak Domain's instructions within a period of time as clearly communicated by Atak Domain, Atak Domain may, at its sole discretion, transfer the registration of the Domain on your behalf to a registrant account in your name without your further cooperation (“Quick Transfer”). In the case of a Quick Transfer, you authorize Atak Domain to create a domain registrant account on your behalf. including agreeing to the registrar’s terms of use on your behalf and providing that registrar with the contact information in your Atak Domain User Account. In such an event, you consent to Atak Domain’s transmission and use of your personal data for this limited purpose. You further authorize Atak Domain take any actions deemed necessary to receive the Domain registration in that account and agree to reimburse any fees incurred by Atak Domain to receive the Domain registration in this account.
Once the Domain is received in this account, Atak Domain shall be authorized to deem the transfer of the registration to you as a Successful Transfer with regard to you and you cannot claim that Atak Domain has not performed its duties under this Agreement based solely on the fact that the Domain is not at your preferred domain registrar. Likewise, once the Domain is received in this account you cannot claim that you do not have control of the domain for reasons related to your inability to utilize the registrar tools to update the domain registration information or hosting servers for the Domain. You acknowledge that the registrar may charge you fees in the future to maintain the registration and you agree that Atak Domain shall have no responsibility to ensure the registration is maintained or to support you in transferring the Domain to a different registrar.
Once the initial transfer of the Domain is complete, you acknowledge that you are free to change the registrar for the transferred Domain at your own expense subject to the policies of the initial registrar and acknowledge that those may include policies, such as a 60-day lock, that limit your ability to further transfer the Domain until a period of time has elapsed. You also acknowledge that assistance with any further transfers of the Domain are not part of the Domain Transfer Service and that Atak Domain is also not obliged to extend the Service for such purposes.
If Atak Domain, at its sole discretion, assumes temporary control of the Domain, you agree to take over technical control of the Domain promptly when instructed to do so by Atak Domain and to update the WHOIS information accordingly. Atak Domain shall not be held responsible for maintaining the Domain and if you do not take over technical control of the Domain within sixty (60) days after Atak Domain took over temporary control of the Domain, it is in Atak Domain’s discretion not to extend the Domain registration period. This may result in the lapse or expiration of the Domain and you agree to hold Atak Domain harmless and will not be compensated for this loss.
You agree to promptly confirm or deny your control of the Domain upon receipt of such an inquiry from Atak Domain. Atak Domain shall be authorized to deem the transfer of registration to you complete should Atak Domain not receive a response within five (5 days). In this case, Atak Domain is entitled to consider the transfer of the registration as a Successful Transfer, whereupon you can no longer claim that Atak Domain has not fulfilled its obligations under this Agreement should you not have technical control over the Domain.
Once you have assumed control of the domain you are obligated to immediately update the domain’s WHOIS record with its respective registrar. You agree to indemnify Atak Domain and/or the Seller for any damages or costs incurred due to your failure to update the domain’s WHOIS record.
4.4. Transfer Failure and Repayment
You acknowledge that a Failed Transfer, for any reason, does not automatically release you from the purchase and sale agreement.
If designated by Atak Domain as a Failed Transfer for reasons unrelated to you and you have remitted payment pursuant to Section 4.2, the party you paid shall be responsible for returning the full payment of the Domain’s Purchase Price.
If the Failed Transfer is ultimately unsuccessful solely due to the fact that you have not undertaken to follow the instructions provided by Atak Domain, there will be no responsibility on any party to return to you the full payment of the Domain’s Purchase Price, or where applicable, any fees paid to Atak Domain.
In the case of a Failed Transfer, you cannot claim any breach of duty on the part of Atak Domain based solely on the fact that the domain has not been transferred to you but rather returned to the Seller.
5. Rights and Duties of Domain Seller
The provisions of this Section 5 shall apply to you for any Transaction in which you are the Seller.
5.1. Reaching an Agreement
If you have sold the Domain during the course of a Domain Marketplace bidding process, you are bound by the standard online purchase and sale agreement supplied by Atak Domain and tailored to the Domain that was the subject of the negotiation. If you have sold the Domain in conjunction with Atak Domain’s Brokerage Service, you are bound by the purchase and sale agreement negotiated between you and the Buyer. In all other cases, you hereby opt to use the standard online purchase and sale agreement supplied by Atak Domain.
5.2. Payment
You agree to provide an invoice and tax information (such as a form W-9) if requested by the Buyer. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Buyer as a material breach of the purchase and sale agreement. You hereby agree that Buyer may delay remitting payment until you provide the requested documents.
In cases where Atak Domain does not opt to receive the Purchase Price pursuant to Section 3.3, you authorize Atak Domain to relay payment instructions to the Buyer in accordance with the payment instructions contained in your User Account and you agree to confirm receipt of that payment to Atak Domain. In the event that Atak Domain requests your confirmation of receipt of payment and does not receive a response either confirming or denying receipt of payment within five (5) days, Atak Domain shall be authorized to deem the payment received and may finalize any transfer of the Domain to the Buyer.
In cases where Atak Domain does opt to receive the Purchase Price pursuant to Section 3.3, Atak Domain shall disburse the Purchase Price after there has been a Successful Transfer as per Section 3.1. You agree that Atak Domain, at its sole discretion, shall determine whether to remit payment in the Contract Currency or your User Currency (as per Section 6 below) and that you are not entitled to demand to receive payment in the other currency, another currency, or using a different exchange rate. Atak Domain reserves the right to deduct any outstanding obligations you owe to Atak Domain from that payment. You acknowledge that not receiving a payment of the exact amount of the Purchase Price is not grounds for a breach of the purchase and sale agreement by the Buyer.
5.3. Transferring the Domain
You agree to cooperate with all of Atak Domain’s instructions regarding the technical transfer of the Domain registration. In addition to being a material breach of this Agreement, failure to cooperate may be considered by the Buyer as a material breach of the purchase and sale agreement. You agree to assist the Buyer update the Domain WHOIS record and assist with any inquiries from related domain registrars regarding the legal status of the transfer and sale of the Domain.
You agree to promptly relinquish control of the Domain upon receipt of instructions from Atak Domain. In cases where Atak Domain obtains temporary control of the Domain, the Domain will be safeguarded on Buyer’s and your behalf.
In the event of a Failed Transfer, Atak Domain shall refund the Purchase Price to the Buyer unless the successful transfer of the Domain failed solely due to the Buyer’s failure to follow the instructions provided by Atak Domain or Buyer’s registrar after payment of the Purchase Price.
5.4. Transfer Failure
You acknowledge that a Failed Transfer, for any reason, does not automatically release you from the purchase and sale agreement.
If designated by Atak Domain as a Failed Transfer for reasons unrelated to you and you have relinquished control of the Domain, the party to whom you relinquished control pursuant to Section 5.3 shall be responsible for returning control of the Domain.
If the Failed Transfer is ultimately unsuccessful solely due to the fact that you have not undertaken to follow the instructions provided by Atak Domain, there will be no responsibility on any party to return the Domain to your control, or where applicable, any fees paid to Atak Domain.
In the case of a Failed Transfer, you cannot claim any breach of duty on the part of Atak Domain based solely on the fact that the Purchase Price has not been remitted to you but rather returned to the Buyer.
5.5. Fraud
In the event Atak Domain is made aware of documented fraud relating to a Buyer or Seller utilizing the Domain Transfer Service after transfer of the respective Domain has been completed, you agree that, if Atak Domain is able to reclaim the Domain on your behalf, you are obligated to accept a return of the Domain and shall remit back to Atak Domain the Domain’s Purchase Price. In the event that you do not cooperate with Atak Domain’s instructions, Atak Domain shall be authorized, at its sole discretion, to either hold the Domain on your behalf and deduct any portion of the Purchase Price you have not returned to Atak Domain from any other amounts owed to you by Atak Domain, or to resell the Domain to another Buyer to recoup Atak Domain’s losses. Notwithstanding the foregoing, Atak Domain reserves the right to recover from Buyer or Seller any and all damages resulting from breaches of this Domain Transfer Agreement and/or Atak Domain User Agreement.
5.6. Authority
You expressly affirm that you have the authority to freely dispose of the Domain. Furthermore, you affirm that by its sale, the Domain does not infringe on company, name and brand rights or other priority rights of third parties and does not violate applicable law. You hereby agree to indemnify Atak Domain from any and all third party claims against Atak Domain which are based on the Domain’s violation of third-party rights or your breach of this Agreement.
6. Fees and Related Costs
The Domain Transfer Service is provided for free to Buyers and Sellers conducting a purchase and sale on Atak Domain's Domain Marketplace or in conjunction with Atak Domain’s Domain Brokerage Service. For Users who wish to order the Domain Transfer Service for other transactions, the amount of the fee for the Domain Transfer Service is specified on the Atak Domain 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, Buyer or Seller, based upon their respective registry and registrar providers, can incur further costs. 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 sixty (60) days from the date the Domain Transfer Service is initiated. Buyer and Seller agree to reimburse Atak Domain for any fees that may be charged by the registrar to Atak Domain while effecting a Quick Transfer or temporarily holding the Domain pursuant to Section 3.2.
The Purchase Price for the Domain shall be the price in the currency as identified in the purchase and sale agreement between the Buyer and Seller (the “Contract Currency”). The Purchase Price in the Contract Currency shall form the basis for formulating any fees owed Atak Domain. If the Contract Currency is not identical with the currency originally selected by the User or with the default currency preference as indicated by or assigned to the User in his/her User Account (the “User Currency”), then Atak Domain may convert the Purchase Price into the User Currency. The exchange rate used by Atak Domain 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 the Domain Transfer Service was initiated, rounded to five (5) places behind the decimal point. The result of any conversion in accordance with this section, including the calculation of any fees owed to Atak Domain, 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 User shall not be entitled to demand to avail himself/herself of a different exchange rate.
In the case of a Failed Transfer, Buyer and Seller agree that Atak Domain reserves the right to collect any applicable fee it would otherwise be owed for a successfully completed sale 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 may 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.
7. Limitations of Liability & Disclaimer of Warranties
To the extent permitted by the law and without regard to intentional or gross negligence on the behalf of Atak Domain, in addition to those disclaimers and limitations on warranties found in the Atak Domain User Agreement, Buyer and Seller understand, acknowledge and agree that:
(i) Atak Domain is not the seller, and as such, maintains no duty to verify that the domain name and/or website content 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;
(ii) The buyer and seller agree that the domain transfer 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; and
(iii) Failure to perform in advance an examination of the domain name and/or website content 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.
(iv) Atak Domain shall not be liable for any damage resulting from the failure to successfully conclude the transfer process, unless such damage is caused by intentional or grossly negligent conduct on the part of Atak Domain , its legal representatives or designated agents.
This shall include, without limitations, in cases where one of the contracting parties refuses to complete the transaction documents properly, where one of the contracting parties cannot be identified on the basis of false or misleading user account information, or if a contracting party or their representative hinder the execution of the transaction by any other means.
(v) With respect to eu residents party to an applicable domain transfer: in the event Atak Domain negligently breaches a material contractual obligation liability shall be limited to reasonably foreseeable damages provided that Atak Domain 's liability in this case shall be limited to a maximum amount of 5,000.00 € per claim, otherwise liability is excluded.
(vi) With respect to eu residents party to an applicable domain transfer: Atak Domain 's liability for claims arising from the german product liability act (produkthaftungsgesetz) and privacy laws shall remain unaffected by the aforementioned liability provisions insofar as Atak Domain has expressly assumed a guarantee or insofar as the liability relates to damages resulting from injury to life, limb or health.