Effective date: January 23, 2023
MarkUpgrade LLC offers a website and service for making offers and inquiries on domain names. By accessing and using the MarkUpgrade website as well as the pages for premium domain names exclusively managed by MarkUpgrade, either manually or through automated means, you accept and agree to abide by these Terms and Conditions. These terms apply to all users of our websites and services.
The Proposal Consultation provided by MarkUpgrade LLC allows potential buyers to communicate initial offers to sellers and ensures that these proposals are made in good faith. The Proposal Consultation fee, which is paid by the buyer and is non-refundable, is used to send a proposal to the seller's designated person. MarkUpgrade LLC is not liable for any failed transactions and the buyer and seller are solely responsible for their respective obligations. By using the MarkUpgrade's services, the buyer represents and warrants that they have the necessary authority to make the proposal.
In accordance with these Terms and Conditions, any usage of MarkUpgrade's site or service by You shall be governed by the present terms. For the purpose of these Terms, the term “Potential Buyer” shall refer to the individual or entity utilizing the MarkUpgrade's services to initiate an offer or inquiry for the purpose of acquiring a domain name. The term “Seller” shall refer to the registrant of the said domain name, as well as any agents acting on their behalf. The domain name that is the subject of the Proposal Consultation shall be referred to as the “Domain Name”.
2. Purpose of the Proposal Consultation
The Proposal Consultation serves as a means for a Potential Buyer to communicate an initial proposal to a Seller, and provides the Seller with assurance that the Potential Buyer is making a serious, good faith proposal inquiring after the Domain Name. MarkUpgrade does not act as an agent for the Potential Buyer and the Potential Buyer is solely responsible for fulfilling any obligations they may have.
The terms and conditions outlined in these terms and on the website should not be interpreted as the sale or assignment of the Domain Name from one registrant to another. The Seller is under no obligation to sell the Domain Name and the Potential Buyer is under no obligation to purchase the Domain Name. Any transfer of Domain Name is outside the scope of these terms.
3. Proposal Consultation Fees, Proposal Communications, Refunds
A. Proposal Consultation Fee and Payment
You will use the Proposal Consultation to make a proposal to the Seller, which will include the offer price or other terms selected by You. To use the Proposal Consultation, you will need to pay a non-refundable fee (the "Consultation Fee") as specified on our website. The Consultation Fee can be paid via credit card or PayPal and is non-refundable, regardless of whether the proposal is accepted by the Seller or if the Domain Name is later transferred to you.
B. Proposal Communication
In exchange for your payment of the Consultation Fee and your agreement to these Terms, we will send your proposal to the registrant or their designated person for the domain name of interest.
Refunds for Consultation calls may be issued for cancellations made up to 48 hours prior to the scheduled date. Please be advised that any cancellations made within less than 48 hours of the scheduled date will not be eligible for a refund.
D. Other fees
MarkUpgrade LLC provides assistance with domain transaction and Escrow service, such as Escrow.com. The buyer is responsible for covering any fees charged by the escrow service.
4. No Liability for Failed Transactions
The successful communication with the Seller depends on many factors that are not within our control. Therefore, we shall not be liable for any failure to provide any service, in whole or in part, including but not limited to, failure of the Seller to receive an offer made by the Potential Buyer.
5. Third-Party Beneficiary
The Seller is an intended third-party beneficiary of these Terms and shall have the independent and unequivocal right to enforce these Terms and obtain all appropriate relief for any breach of these Terms.
6. Additional Provisions
A. This Agreement is governed by and interpreted in accordance with the laws of DELAWARE, USA, without reference to conflict of laws principles. You consent that any dispute regarding the PSS service will be handled via arbitration in the state of DELAWARE, US.
B. You agree that the party who breaches these terms will be responsible for paying all reasonable costs and attorneys’ fees incurred in enforcing these Terms.
C. All representations and warranties contained herein are material, and have been or will be relied upon by Proposal Submission Service and/or Seller, notwithstanding any investigation made by or on behalf of them. You agree to indemnify Proposal Submission Service and Seller and their affiliates, officers, directors, employees, shareholders, partners, agents and representatives (the “Indemnified Parties”) against, and hold each of them harmless from, any loss, claim, liability, expense or other damage (including attorneys’ fees and expenses, and amounts paid in settlement) incurred or suffered by any Indemnified Party arising out of, relating to, or in connection with (i) Your use, misuse or abuse of the Proposal Consultation; (ii) Your breach of any representation or warranty made in these Terms; or (ii) Your failure to comply with any of the covenants or agreements contained in these Terms.
D. You agree that because of the unique nature of this Agreement, any breach of the representations, warranties, or obligations set forth herein would cause MarkUpgrade and/or Seller irreparable harm, and money damages and other remedies available at law would not be adequate to compensate for such breach. Accordingly, You agree that MarkUpgrade and/or Seller shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including, without limitation, injunctive relief and specific performance, as a remedy for any such breach. Such relief shall be in addition to, and not in lieu of, all other remedies available to MarkUpgrade and/or Seller whether at law or in equity.
E. You acknowledge and agree that the assertion by You and/or Potential Buyer and/or any affiliate or related company of any legal claim against Seller and/or the Domain Name shall constitute a breach of Your representations and warranties set forth in herein and shall constitute reverse domain name hijacking in violation of 15 U.S.C. § 1114(2)(D)(iv) entitling Seller to actual or statutory damages, at Seller’s election, and attorneys’ fees pursuant to these Terms and/or 15 U.S.C. §§ 1117(a) and (d).
F. If any part of these Terms shall be determined to be illegal, invalid, or unenforceable, that part shall be severed from the Terms and the remaining parts shall be valid and enforceable, so long as the remaining parts continue to fulfil the original intent of the parties.
G. These Terms constitute the entire agreement between the parties, and supersede any and all prior agreements or understandings, written or oral, relating to the subject matter hereof. No other promises, agreements, or understandings, written or oral, shall be binding upon the parties with respect to this subject matter unless contained in these Terms.