General Terms of Use of Undeveloped

Article 1. Definitions

The following definitions apply to these General Terms of Use:

Provider: the party offering a domain name.

Transferee: the party wishing to acquire a domain name.

Contractor: Undeveloped B.V., located at the Herengracht 182, (1016 BR) te Amsterdam with VAT number NL854196468B01 and registered with the Chamber of Commerce under number 61079049, the party carrying out the contract.

Client: the counterparty of the Contractor who issues the assignment. This includes both the Provider/Rentor and the Transferee/Rentee.

User: user of the Website.

Contract: the mediation in the coming about of the agreement for the transfer of domain names and all that is related to operations and activities performed by the Contractor.

Agreement: the assignment agreement under which the Contractor itself, whether or not for payment of a commission, undertakes to the Client to perform work, and to which these General Terms of Use apply. The provisions of Sections 7:404 and 7:407 paragraph 2 of the Dutch Civil Code shall not apply.

Additional agreement: the agreement between the Provider, the Transferee and the Contractor which agreement will be entered into if the Provider and the Transferee have agreed to an installment plan regarding the Price.

Escrow Third Party: the Contractor, that will hold the domain name in deposit if the Clients entered into the Additional agreement or the Rental agreement.

Rental agreement: the agreement between the Rentor and the Rentee regarding the rent of the Domain Name.

Rentee: the party who rents a domain name from the Rentor.

Rentor: the party who rents a domain name to the Rentee.

Parties: Contractor and the Client together in this context should be listed individually as "party" or "counterparty".

Price: between the Provider and Transferee agreed price for the transfer of a domain name, of which the price will be concluded by the Provider accepting an offer made by Transferee.

Auction: a domain name auction organised and conducted by Undeveloped.

Website: undeveloped.com

Terms: These General Terms of Use.

Article 2. Applicability

2.1 The Terms apply to any use of the Website (through any communication service whatsoever) and to all services provided by the Contractor (for the Client), including the Auction, and to the Agreements between the Contractor and the Client, and between their legal successors, for which the Contractor has declared the Terms applicable, provided that the Terms are not explicitly deviated from in writing by the parties.

2.2 The Terms are also applicable to contracts with the Contractor, for which third parties are involved by the Contractor to carry out the Contract.

2.3 Deviations or additions to the Terms are only valid when expressly agreed to in writing by the Contractor.

2.4 The applicability of any terms of the Client is explicitly rejected. Such general terms and conditions only apply if they are accepted in writing by the Contractor.

2.5 If any provision of the Terms is invalid or annulled, the remaining provisions of the Terms remain in full force. The parties will then consult in order to agree on new provisions to replace the invalid provisions, while the purpose and intent of the original provisions are observed as much as possible.

2.6 If uncertainty exists regarding the interpretation of one or more provisions of the Terms, or if a situation occurs between parties that is not regulated by the Terms, then the situation should be judged in the spirit of the Terms.

2.7 If the Contractor does not require a continuous strict compliance with the Terms, this does not mean that its provisions do not apply, or that the Contractor to any degree would lose the right to otherwise demand strict compliance with the provisions of the Terms.

2.8 The Contractor is at all times entitled to modify the Terms. Changes will take effect within a reasonable time after they are announced, or after the Client has made use after the change of the Website and /or services of the Contractor, whichever occurs earlier.

Article 3. Mission and method Contractor

3.1 The Contractor operates the Website. The Website is a platform on which the Provider can offer domain names and on which the Transferee can look up, view and obtain or rent domain names from the Provider.

3.2 The Contractor is only an intermediary who mediates in the conclusion of an agreement to transfer a domain between the Provider and the Transferee. The Contractor enables the communication between these two parties, organises the Auctions and facilitates the transfer of the domain name or the availability in case of a Rental agreement.

3.3 The Contractor is not a party in the agreement of transfer of a domain name between these parties and bears no responsibility in this respect, a part from any responsibilities as set out in the Additional agreement or the Rental agreement. The Contractor has no effect on the actual state, including the accessibility of the domain names offered by the Provider. The Provider and the Transferee should resolve all disputes between themselves. When requested the Contractor can be a facilitating party that can provide both the Provider and the Transferee advice and support to a certain extent in solving disputes.

3.4 Between the Provider and the Transferee an agreement will be initiated when either the Provider or Transferee has accepted the last offer made by the Transferee or Provider on the domain name of the Provider. When a Transferee offers initiates a purchase via the so called Buy Now option this also initiated a binding agreement between the Parties.

3.5 If by offline or online mediation an agreement has been reached by the Contractor in respect to the transfer or rental of the domain name or domain names between the Provider and Transferee, whether or not by means of the Auction, then Provider shall submit to the Contractor a reward in the form of a fixed commission on the Price.

3.6 If the Provider and the Transferee have agreed to an installment plan regarding the Price, both parties and the Escrow Third Party will sign the Additional agreement. The Provider will deliver the domain name under retention of title to the Escrow Third Party until the Transferee has paid the Price in accordance with the Additional agreement. The Escrow Third Party solely manages the domain name on behalf of the Provider, without any legal claim. The Transferee may use the domain name under the conditions as set out in the Additional agreement until the transfer has taken place.

3.7 The Contractor has at all time the right to cancel any (Additional) agreement and/or payment of the Price if the Contractor believes this to be necessary, without any right of restitution of installment(s) already paid and/or payment of any damages.

3.8 In case of conformity as mentioned in the above paragraphs, the Contractor will complete the transaction of the Price in accordance with its own procedures.

3.9 The Contractor shall at all times be entitled to transfer its rights and obligations from the agreements relating to the services of Contractor to one of its group companies or its other appointed third parties and to amend its services unilaterally. The Client requires for a transfer of (the rights and obligations) from the agreements the explicit consent of the Contractor.

Article 4. Obligations Clients

4.1 If an agreement is reached between the Provider and the Transferee, then the Provider and the Contractor will undertake to provide full cooperation to the Contractor so that the Contractor can facilitate the transfer of the domain name. The Contractor shall at all time follow the necessary procedures to enable the agreement(s) between the Clients.

4.2 If the transfer of the domain name relates to a business agreement, the Transferee will be obliged to submit his corporate data, including the VAT of his company to the Contractor for producing the invoice.

4.3 The transfer of the domain name will start once the Contractor received and verified the Price. If the Provider and the Transferee have agreed to an installment plan regarding the Price, the transfer of the domain name shall be made in accordance with the conditions as set out in the Additional agreement.

4.4 If the Contractor, for whatever reason, is unable to carry out its work then it will contact the Client(s) to reach a satisfactory solution together.

4.5 If the Client has not fulfilled its obligations, then there is no obligation for the Contractor to cooperate with the transfer. In that case, the Client is legally in default and a notice of default is not required. Except claiming performance the Contractor is entitled to cancel the transaction and terminate the Contract. As far as necessary, the inadequacy of the Client is a serious ground as referred to in Article 7:408 paragraph 2 of the Dutch Civil Code. In this case, the Contractor reserves the right to bill an amount of € 150, - for administration costs to the party which fails to fulfil its obligation.

4.6 The Client must provide the Contractor with a correct and valid email address in respect of mediation.

4.7 Payment of any costs should always be made in the manner and within the period stated on the invoice of the Contractor, in the currency of the invoice, unless otherwise specified by the Contractor.

4.8 If the Client objects to the invoice of the Contractor, the Client notifies the Contractor within 3 days after the date of invoice by means of a written appeal. If the Client has not met these requirements, the Client shall be deemed to have accepted the invoice entirely.

4.9 Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to appeal to section 6.5.3 (articles 231-247 of Book 6 of the Dutch Civil Code) is not entitled to suspend the payment of an invoice for any other reason.

4.10 If the Contractor cancels a transfer of ownership, the Transferee will get refunded within 3 business days. If the domain name had already been transferred to the Contractor's escrow account, the Provider will receive a new authorization code within 3 business days in order for the Provider to transfer the domain name back to their account.

Article 5. Prohibition

5.1 Minors may not give commissions to the Contractor, except if they have permission from their legal representatives or if it is common in society that a particular minor of that age independently carries out the act.

5.2 It is not permitted to place on the Website domain names that infringe on the (intellectual property) rights of third parties or otherwise are unlawful.

5.3 It is not permitted to place domain names for third parties, unless the Contractor has given permission to do so.

5.4 In case of violation of these prohibitions, the Contractor is entitled to take such measures as it considers necessary, including -but not exclusively- the removal of (the provisions of) the domain name, deny the Client access or suspend his access and / or providing personal information to authorized third parties, including the police.

Article 6. Bids

6.1 Every bid the User places on a domain name which is placed on the Website is legally binding. A bid cannot be revoked. If this offer is accepted by the Provider, the User is obliged to cooperate in the transfer of the domain name. The provisions of Article 4.5 are explicitly applicable.

6.2 The Clients must themselves investigate the domain name that it offers or to which it intends to make an offer. The Contractor has no knowledge of the contents of any websites to which the domain name refers.

6.3 Every bid is valid for a duration of 7 days. This clause does not apply in case of the Auction.

Article 7. Complaints

7.1 You can submit complaints about the services provided by the Contractor by sending an e-mail message.

7.2 Complaints should, within a reasonable time after you have determined a defect in the service, be submitted, providing a period of 14 days at least will be timely.

7.3 Complaints must be made fully and clearly defined.

Article 8. Liability

8.1 The Contractor is not liable for any damage, except to the extent provided in this in the law and in article 8.

8.2 The Contractor shall in all cases only be liable for direct damage resulting from a shortcoming in the fulfilment of obligations of the Contractor, or by third parties engaged, after it has been defaulted soundly and in writing and the Contractor has been given a reasonable time to rectify this omission, and the Contractor after that period attributable continues to fall short in the fulfilment of its obligations. The notice must contain the most complete and detailed description of the failure, so that the Contractor is able to react adequately.

8.3 Liability of the Contractor for the payment of additional or replacement damage or indirect damage, such as consequential damage and business interruption, lost savings, lost profits and damages resulting from claims made by the Client, is totally excluded.

8.4 The Contractor is not liable for any damage resulting from:

a) the use of services from the Contractor, including -but not exclusively- use of our landing pages (active) service brokerage and transaction concerning the transfer of the domain name and other services offered by the Contractor;

b) false or incomplete information on the Website;

c) purchase of third party services or use of purchased domain names or other services via the Website;

d) defects in the actual state, including the accessibility of the domain names;

e) acts of third parties hired by the Contractor, including third parties that affect the financial settlement; and

f) changes in the services of the Contractor or changes in or on the Website.

8.5 Liability limiting, excluding or establishing conditions, which by the Contractor engaged third parties can be enforced by the Contractor, will also be enforceable against the Client.

8.6 The Contractor is not liable for any damage suffered by the Client which is the result of force majeure, including -but not exclusively- every hindering circumstance that is not exclusively dependent on the will of the Contractor or third parties engaged. This shall include the non-availability or non-safe availability of the website or parts thereof, spam, spyware, viruses and the like which can be transmitted through the communication of the Contractor or when using the Website and also transmission errors, malfunctions or non-availability of the facilities necessary to carry out the Contract.

8.7 If the Contractor for whatever reason is obliged to pay any damages to the Client, it is only obliged to pay:

a) The total compensation paid by the Client to the Contractor during the three weeks prior to when the act causing the damage occurred; or

b) a total of € 150, -, whichever is higher.

8.8 If there is damage according to the provision of paragraph 7 the amount determined in accordance with this paragraph will serve as the full compensation. The Client has no claim on the Contractor in this case.

8.9 The prerequisite for the existence of any right to compensation is that the Client reports the damage as soon as possible after the occurrence thereof in writing to the Contractor. Any claim for compensation against the Contractor shall expire by the mere lapse of 6 months after the claim arises.

Article 9. Indemnification

9.1 The Provider declares to the Contractor that the domain name offered by her does not infringe on the (intellectual property) rights of third parties or is otherwise unlawful.

9.2 The Client shall indemnify the Contractor for the effects of any agreements between the Provider and Transferee as well as some shortcomings in these agreements, whether or not seeing to the actual state of the domain name.

9.3 The Client shall indemnify the Contractor from claims by third parties including -but not exclusively- related to losses suffered by;

a) entering into an agreement based on an acquisition of a domain name, including -but not exclusively- any infringement of third party rights or other unlawful activity;

b) the use of domain names acquired through (the Website and/or) the Contractor;

c) the use of (active) brokerage services;

d) the use of the Website landing pages; and

e) the use of the services offered on or through the Website.

9.4 The Client shall indemnify the Contractor from any claim made by any (third) party due to or arising out of any breach of contract or any unlawful act regarding any agreement between the Clients.

9.5 If the Contractor, for whatever reason, has been sentenced to pay a sum to the Client or a third party as referred to in paragraph 2, 3 and 4, or made and out of court settlement on which grounds it must pay an amount to this third party, then the Client shall pay this amount and the costs the Contractor had to make as a result, immediate and on the first request of the Contractor.

Article 10. Confidentiality

10.1 The Clients and the Escrow Third Party may enter into the Additional agreement or the Rental agreement ("Agreements"). The Terms apply entirely on the Agreements, if the content does not conflict with the provisions as mentioned in the Additional or Rental agreement. Where you read "Provider" and "Transferee" in the, you may also read "Rentor" and "Rentee".

10.2 The fixed commission as mentioned in clause 3.5 shall be subtracted from the first installment or payment of rent and, if these payments are not sufficient, from the subsequent payments.

10.3 The Agreements are entered into for a period of time as agreed upon in the Agreements.

10.4 If the Agreement is entered into, the Transferee is solely entitled to use the domain name with due diligence. The Transferee shall not in any way use the domain name which in any respect:

a) is in breach of any law, statute, regulation or by law;

b) is fraudulent, criminal or unlawful;

c) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

d) may infringe or breach the copyright or any intellectual property rights (including without limitation copyright, trademark rights and broadcasting rights) or privacy or other rights of the Escrow Third Party or any third party;

e) contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor's legal guardian);

f) provides instructional information about illegal activities such as making or buying illegal weapons or drugs, violating someone's privacy, or providing, disseminating or creating computer viruses;

g) publicizes or promotes commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes

h) involves the use, delivery or transmission of any viruses, unsolicited emails, trojan horses or any other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

10.5 Any (other) illegal activities as mentioned in paragraph 4 or any other activities which may cause damages to the Provider or the Escrow Third Party and/or which may decrease the value of the domain name are strictly prohibited. Such activities include, without limitations, the use of aggressive SEO strategies, techniques and tactics that focus only on search engines and not a human audience, and usually does not obey search engines guidelines (black hat SEO), such as keyword stuffing, invisible text, doorway pages, adding unrelated keywords to the page content or page swapping (changing the webpage entirely after it has been ranked by search engines), and the use of the domain name for spam activities.

10.6 In case of violation of paragraphs 4 and/or 5 the Transferee shall forfeit without that further notice of default is required a directly and not open to mitigation claimed fine of:

i) in case of a Additional agreement: the equal of twice the Price;

ii) in case of a Rental agreement: 24 (twenty-four) times the monthly rent; per violation to be paid to the Provider, notwithstanding the Provider's or the Escrow Third Party's right to claim the actual damages. The Transferee is furthermore obligated to limit any damages and/or undo the decreasing of the value of the domain name.

10.7 If the Parties entered into the Rental agreement, the Rentor is prohibited to sell or rent the Domain Name to a third party, to pledge the Domain Name as security if such pledge frustrates the (performance of this) agreement, or to act in any other way which is in conflict with this agreement or which may cause damages to the Escrow Third Party and/or the Rentee, after the deposit of the domain. If the Rentor violates this clause, the Rentor shall be liable for all the actual damages caused to the Escrow Third Party and/or the Rentee.

10.8 If the Transferee fails and/or neglects to carry out the terms as set out in the agreements, the Provider may terminate the agreement immediately without prior notice. The Transferee is liable to compensate all damages caused by this breach of contract.

10.9 The Additional agreement shall terminate immediately without prior notice if the Transferee suffers bankruptcy. If the Provider suffers bankruptcy and the first installment has been paid, the domain name shall be transferred to the Transferee immediately. The Escrow Third Party shall take all necessary measures on behalf of the Provider to transfer the domain name to the Transferee.

10.10 The Rental agreement shall terminate immediately without prior notice if the Rentee suffers bankruptcy, applied for suspension of payment, ceases operations or the company of the Rentee is liquidated.

10.11 After termination of the agreement, the Provider may rent or sell the domain name to any party, including competitors of the Transferee. If the Additional agreement has been terminated by the Provider, this agreement will retroactively be considered to be a Rental agreement and all installments paid are to be considered as rent.

10.12 Parties expressly relinquish the right to invoke the dissolution of the agreements, on whatever grounds.

Article 11. Auction

11.1 The Terms apply entirely on the Auction, if the content does not conflict with the provisions as mentioned below.

11.2 In order to offer a domain name at the Auction or via private brokerage by (the brokers of) Undeveloped B.V., the Provider has the following obligations:

i) the Provider needs to make the domain name(s) to offer at the Auction available to Undeveloped B.V., whether through submission of domain names electronically through the Undeveloped B.V. websites or by email or phone;

ii) the Provider needs to, promptly upon request by Undeveloped B.V., provide Undeveloped B.V. with complete and adequate information regarding the Provider, the domain name(s) and any other information and data as Undeveloped B.V. may reasonably request in order to permit Undeveloped B.V. to perform its duties hereunder;

iii) the Provider needs to disclose to Undeveloped B.V. any facts regarding the domain name(s) that may have arisen or of which the Provider becomes aware before, during or after submission of a domain name for inclusion in the Auction;

iv) refer to Undeveloped B.V. all previous, pending and future inquiries from brokers, agents, purchasers or others interested in the domain name(s) tendered to Undeveloped B.V. for offering at such Auction;

v) in the event that: (a) the Provider fails to honor its obligation to deliver a domain name which has been purchased in the Auction or if the Provider has accepted an offer, written or oral, presented by a Undeveloped B.V. Broker; or (b) the Provider erroneously submits a domain name to Undeveloped B.V. which the Provider does not in fact own or otherwise have the right to offer and such error is not (timely) discovered by Undeveloped B.V. or by the Transferee prior to the purchase of such domain name(s) by the Transferee, the Provider needs to pay to Undeveloped B.V. the commission that Undeveloped B.V. would have collected for the purchase had it occurred at the reserve price or the price accepted if privately brokered, as agreed between Undeveloped B.V. and the Provider, in addition to any other remedies that Undeveloped B.V. may have at law or in equity;

11.3 The Provider is prohibited to:

i) submit domain name(s) to Undeveloped B.V. (a) which may infringe upon or violate the intellectual property rights or any other rights of other persons or entities; (b) for which the Provider does not have the (full and/or exclusive) right, title or the authority to offer to third parties free and clear of all liens, claims, charges, encumbrances, licenses and security interests or any other restrictions to offer the domain name; or (c) which are the subject of litigation, arbitration, claims, disputes or other legal proceeding, either pending or threatened, or if so submitted, paying to Undeveloped B.V. any applicable fees due Undeveloped B.V.;

ii) bid during the Auction, either directly or via an agent or other entity, on the domain name(s) provided by the Provider."

11.4 The Provider indemnifies and hold harmless Undeveloped B.V. for any damages of claims of third parties regarding any (violations of) obligations and prohibitions as mentioned in this clause 11.

11.5 The Provider grants Undeveloped B.V. the exclusive right and authority to offer all domain names submitted by the Provider to Undeveloped B.V. for inclusion at the Auction and brokerage. This exclusive right shall be expanded for 30 days after the end of an unsuccessful Auction.

11.6 The Provider agrees that all agreements from brokerage and Auctions, form a legally binding commitment by the Provider. If a domain name is not purchased at the Auction, this particular domain name may be offered in subsequent brokerage by Undeveloped B.V..

11.7 In the event that the Provider sells or rents the domain name directly, or through any person or entity other than Undeveloped B.V., during the term of this Agreement, Undeveloped B.V. shall be entitled to receive its full fee for the sale or rental of such domain name.

11.8 The Provider and Undeveloped B.V. will mutually agree upon reserve prices and starting bid prices for any and all domain names submitted by the Provider and accepted by Undeveloped B.V. for inclusion in the Auction.

11.9 Both reserve prices and starting bid prices may be modified as requested and mutually agreed before or during an Auction or other brokerage.

11.10 Undeveloped B.V. explicitly holds the right, at any time and at its sole discretion, to delete individual bids during the Auction if Undeveloped B.V. believes that such bids were placed clearly erroneously, by mistake, or were determined not to be a bona fide firm offer. Any mistake on the part of the bidder must be reasonably obvious and to be communicated to Undeveloped B.V. in writing and within a reasonable amount of time. In any case, bidders may not claim mistake with the purpose of interfering with or circumventing the completion of a transaction. Undeveloped B.V. reserves the right to suspend the bidder's account at any time if the bidder is found to have falsely claimed mistake during the Auction. In case of a cancelled bid, the next highest 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.

11.11 Undeveloped B.V. explicitly holds the right, at any time and at its sole discretion, to reject the listing of any domain name for inclusion of the Auction, without prior warning and without giving any reasons and at any time, especially in the case of the Provider's violation of the Agreement, or suspected violation of third party rights concerning a domain name, or suspected violation of applicable laws.

11.12 The Provider and Undeveloped B.V. agree that Undeveloped B.V. shall be entitled to deduct a commission from the Price in accordance to the general commission charged by Undeveloped B.V. for its services regarding the purchase, for every domain name submitted by the Provider which is purchased in the Auction.

11.13 Undeveloped B.V. shall act as an Escrow party and offer its escrow services at no additional charge other than the commission agreed as mentioned in clause 11.12. The Provider shall provide all necessary measures in order to follow Undeveloped B.V.'s Escrow protocol.

11.14 Undeveloped B.V. holds the right to cancel the Auction at any time without permission of the Provider. If the Auction is cancelled, any binding or contractual relationship between the Provider and the highest bidder and/or the person who made the last offer shall be nullified.

Article 12. Confidentiality

12.1 The parties will make every effort to ensure that confidential information of the other party is notified or owned by third parties. Third parties do not include financial or legal advisors engaged by either party.

12.2 Paragraph 1 shall not apply if the disclosure takes place under a court order or under any other legal duty to provide information or with the prior written consent of the other party.

12.3 Parties will require their staff and possibly engaged third parties to comply with these confidentiality provisions.

Article 13. Notices

13.1 Notices to the Contractor may be sent to the Contractor via the contact form available on the Website.

13.2 Notices to the Client will be sent to the provided e-mail address, or by mail in case there is reason to do so and an address is available.

Article 14. Termination

14.1 In addition to the provisions of article 4.5, the Contract terminates with immediate effect by cancellation by the other party if the Contractor or the Client has been declared bankrupt or suspension of payment has been granted. The Contractor is due to this termination never obliged to refund any received amounts or pay compensation.

14.2 The Contractor shall be entitled to terminate the Contract if they are not able to implement it because of force majeure on this contract without any obligation to pay compensation.

Article 15. Transparency first

The Contractor has the absolute right to publish all transfer or rentals of domain names and their prices on both the Website and third party websites. If the publication of a transfer isn't desired, the Client can request for the details of the transfer not to be published, and must pay an additional fee (4% of the Price) to the Contractor. The Contractor will then donate this additional fee to a charity of its choice.

Article 16. Final Provisions

16.1 This agreement, the Additional agreement and the Rental agreement are governed by Dutch law.

16.2 Disputes arising from this agreement or arising there from shall be exclusively submitted to the competent court in Amsterdam.

16.3 The provisions of the Terms set out the legal relationship between the Parties and replace all previous agreements or statements made by the Contractor and only provide evidence for it.

16.4 The by the Contractor received or saved version of any communication, measurement (monitoring), is considered authentic unless the contrary is proven by the Client.

16.5 The Terms have been drafted multiple languages, the English Terms are the binding & fully enforced terms. The English text is binding and shall prevail in the event of any dispute as to the scope or content of the Terms.