Kaboom Domain User Agreement
The use of the online services provided by Kaboom Domain (“Kaboom Domain”) is governed by the terms and conditions set out below (“this Agreement”). Without limiting the way in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button or checkbox on your computer screen including your acceptance of this Agreement, or by proceeding to use the Services (as defined below) you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.
In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:
Amendment Date has the meaning given in clause 18.1
Associate means any “associate” of a person as that term is defined in the Corporations Act 2001 (Cth)
Auction means an auction conducted by a Seller for the sale of a Digital Asset using the auction engine on Kaboom Domain
Buyer means a person who offers to purchase a Digital Asset advertised on Kaboom Domain from a Seller
Catalog Sale means a sale of a Digital Asset from a Seller to a Buyer using the Catalog sale engine on Kaboom Domain
Default Sale Terms means the template terms and conditions provided by Kaboom Domain to Sellers which Sellers may at their option use as the terms and conditions governing the sale of their Digital Asset
Digital Asset means a website, domain name, and / or software application which a Seller wishes to sell to a Buyer using Kaboom Domain
Fees means the fees and charges of Kaboom Domain which it applies from time to time in relation to the Services
Kaboom Domain Means Kaboom Domain
Kaboom Domain Credits means credits with Kaboom Domain which may be exchanged for certain goods and services offered by Kaboom Domain but which cannot be redeemed for cash or applied towards Success Fees
Kaboom Domain means the Kaboom Domain website and underlying software and infrastructure which permits the holding of Auctions and Classifieds
Indemnified has the meaning given in clause 15
Intellectual Property Rights means all intellectual property rights of any type whatsoever throughout the world including all rights which subsist in copyright, patent rights, trademark rights, designs and plant breeder rights, if such rights are registered or able to be registered
Listing means the advertisement placed by a Seller on Kaboom Domain for the sale of the Seller’s Digital Asset
Personal Information has the meaning given in clause 11.1
Classified >means a sale of a Digital Asset from a Seller to a Buyer using the Classified engine on Kaboom Domain
Purchase Price means the purchase price agreed between the Buyer and the Seller as part of a Classified or the purchase price bid by the Buyer as the Winning Bidder in an Auction
Rules means the policies, rules and procedures of Kaboom Domain in relation to the holding of, or participation in, Classifieds or Auctions or the use of Kaboom Domain.
Sale Agreement has the meaning given in clause 5.1
Seller means an owner of a Digital Asset who wishes to sell that Digital Asset and who uses Kaboom Domain to advertise the Digital Asset for sale
Services means the services provided by Kaboom Domain which are described in clause 2
Success Fee means a Fee that may be payable by the Seller upon (a) the conclusion of an Auction which results in a Winning Bidder; or (b) the acceptance by the Seller of an offer to purchase the Seller’s Digital Asset via a Classified or Catalog Sale; or (c) when the listed Digital Asset is sold within 30 days of the listing ending
Third Party Agreements means any agreements which a Seller has with a third party in relation to their Digital Asset which may include hosting agreements, payment provider agreements, affiliate management agreements and affiliate and reseller agreements
Third Party Provider means any third party which provides goods or services to Kaboom Domain or to Buyers and Sellers via Kaboom Domain. For the avoidance of doubt, a Buyer or Seller (acting in that capacity) will not be a Third-Party Provider
User Account means an online account with Kaboom Domain which enables you to use Kaboom Domain
Winning Bidder means a Buyer whose bid in an Auction is the successful or winning bid
(a) a reference to this Agreement means a reference to an agreement between you and Kaboom Domain on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
(b) the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
(c) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
(d) the singular includes the plural and vice versa;
(e) a reference to any gender includes a reference to all other genders;
(f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
(g) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
(h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
(i) headings are inserted for convenience only and do not affect the interpretation of this Agreement.
Kaboom Domain provides an online service, in accordance with and subject to, the terms and conditions of this Agreement, whereby (“Services”):
(a) Sellers may, via Kaboom Domain, advertise their Digital Asset for sale whether by way of a Classified, Auction or Catalog Sale;
(b) Buyers may, via Kaboom Domain, contact Sellers to offer to purchase their Digital Asset; and
(c) Buyers may, via Kaboom Domain, bid in Auctions conducted by Sellers.
You, as a user of the Services, may use the Services in the capacity as a Seller, Buyer or both a Seller and a Buyer. The terms and conditions of this Agreement will apply to your use of the Services in either or both of those capacities.
3.1 Creating a User Account
(a) You agree to create a User Account with Kaboom Domain to use the Services.
(b) Your User Account will be created using Kaboom Domain’s online sign up process, or any other method specified by Kaboom Domain from time to time.
(c) User Account will permit you to login to Kaboom Domain to manage your User Account, make use of Kaboom Domain and to manage other details involving your relationship with Kaboom Domain.
(d) You agree to keep confidential and secure any username or password used to access your User Account.
(e) You warrant that all information provided to Kaboom Domain in the setup of your User Account is true and correct in every detail.
(f) All users of the Services must be 18 years of age or older. By creating a User Account, you represent and warrant to Kaboom Domain that you are 18 years of age or older and you can form legally binding agreements under applicable law. You may however permit minors under 18 years of age to use your User Account on your behalf if you are their parent or legal guardian, and provided that their use of your User Account occurs under your supervision at all times. If you do permit a minor to use your User Account in accordance with the forgoing then you agree that you are responsible for their actions, omissions or negligence and you indemnify Kaboom Domain against any loss, cost, expense or damage it may suffer because of the same.
(g) You agree to only maintain one User Account in relation to your use of the Services and Kaboom Domain.
(h) You agree to provide Kaboom Domain with all identification documents (including copies of passports and drivers’ licenses) which Kaboom Domain requests from you from time to time for the purposes of verifying your identity.
(i) You agree to receive email communications from Kaboom Domain for commercial purposes. You can opt out of these emails later if you wish.
3.2 Use of Your User Account and Kaboom Domain
You agree that you will only use your User Account and Kaboom Domain for the purposes of using the Services and for no other purpose. In using your User Account and accessing Kaboom Domain, you will not:
(a) breach the Rules;
(b) resell or sublicense the use of Kaboom Domain or your User Account to any other person;
(c) use your User Account in a fraudulent or illegal manner, or email or send any materials from your User Account which are offensive, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
(d) use your User Account to stalk or harass another person;
(e) use your User Account to impersonate any person in any way whatsoever;
(f) use your User Account to infringe the copyright, trademark, patent or other Intellectual Property Rights of any person;
(g) your User Account for sending advertising, chain letters, junk mail, “spamming” or any other type of unsolicited email;
(h) forge or alter the header or address information contained in any email or communication which you send from your User Account or in relation to the Services;
(i) use your User Account to send or deliver viruses, spyware, malware or other harmful, disruptive, or destructive files;
(j) use your User Account in such a way which damages Kaboom Domain or denies access to Kaboom Domain to other users of Kaboom Domain;
(k) intentionally or recklessly use your User Account in a way that degrades the performance of Kaboom Domain for other users; and
(l) cancel an Auction or Classified initiated by you (including any cancellation because of a termination of this Agreement) for the purpose of contracting separately with a Buyer you meet through Kaboom Domain which results in you avoiding paying Kaboom Domain any Fees (including a Success Fee). In these circumstances, without limiting Kaboom Domain remedies against you, Kaboom Domain may recover its lost Fees from you by suspending your User Account and/or deducting its loss from any Kaboom Domain Credits in your User Account.
4.1 Conduct in Accordance with the Rules
Your participation as a Buyer or Seller in a Classified or Auction will always be governed by the Rules. You agree that you are bound by the Rules and will comply with the Rules.
4.2 Advertising a Classified or Auction
You may, as a Seller, advertise your Digital Asset for sale via a Classified, Auction or Catalog Sale. You may do so by placing a Listing on Kaboom Domain and indicating at the time of placement whether the sale of your Digital Asset will be by way of Auction, Classified or Catalog Sale. Note that you cannot change the type of sale from Auction to Classified or Catalog Sale whilst the Listing is active on Kaboom Domain.
4.3 Digital Assets You Can Sell
(a) You must only list Digital Assets for sale which you own and which you are entitled to sell. By creating a Listing for a Digital Assets, you are warranting to Kaboom Domain and to each Buyer that:
(i) you are the owner of all Intellectual Property Rights and all other rights, title and interest in the Digital Assets;
(ii) the Digital Asset and all its components are transferable to the Buyer;
(iii) all Third-Party Agreements are transferable to the Buyer; and
(iv) the Buyer may be registered as the owner of the domain name for the Digital Asset and that domain name may be transferred to another registrar.
(b) You are restricted from placing Listings to sell Digital Assets which:
(i) are obscene, vulgar and/or deemed by Kaboom Domain to be offensive;
(ii) contain material which infringes the Intellectual Property Rights of a third party or which assists others to infringe the Intellectual Property Rights of a third party;
(iii) are engaged in activities which contravene the law of any territory; or
(iv) contravene any provision of the Rules.
4.4 Classified and Auction Requirements
(a) In listing your Digital Asset for Auction or Classified, you agree to comply with the requirements in relation to Auctions and Classifieds as set out in these terms and conditions or as set out in the Rules.
(b) When you advertise your Digital Asset for Auction:
(i) you must specify all details requested by Kaboom Domain in relation to the Auction;
(ii) you must conduct the Auction using the Auction engine provided by Kaboom Domain;
(iii) you must conduct the Auction in accordance with the Rules; and
(iv) you must sell your Digital Asset to the Winning Bidder.
(c) When you advertise your Digital Asset for Classified:
(i) you must specify all details requested by Kaboom Domain in relation to the Classified;
(ii) you must conduct the Classified using the Classified engine provided by Kaboom Domain; and
(iii) you must conduct the Classified in accordance with the Rules
(iv) You are not compelled to sell your Digital Asset to any particular Buyer using a Classified. However, if you do elect to sell your Digital Asset to a particular Buyer via a Classified, then you agree that you must effect the sale and transfer of that Digital Asset to the Buyer.
(d) When you advertise your Digital Asset for Catalog Sale:
(i) you must specify all details requested by Kaboom Domain in relation to the Catalog Sale;
(ii) you must conduct the Catalog Sale using the Catalog Sale engine provided by Kaboom Domain; and
(iii) you must conduct the Catalog Sale in accordance with the Rules.
(iv) You are not compelled to sell your Digital Asset to any Buyer using a Catalog Sale. However, if you do elect to sell your Digital Asset to a particular Buyer via a Catalog Sale, then you agree that you must affect the sale and transfer of that Digital Asset to the Buyer.
4.5 Conduct of Buyers
As a Buyer, you may offer to purchase a Digital Asset of a Seller via Kaboom Domain. Your offer to purchase must be submitted via Kaboom Domain. In the case of an Auction, your offer to purchase will be submitted as a bid in the Auction. All offers to purchase a Digital Asset (including an Auction bid) must be made in accordance with the Rules.
4.6 What must be sold as part of a Digital Asset
Any Website listed for sale on Kaboom Domain must offer for sale:
(a) all files contained in the website including html code, other source code, logos, images, music, animation, films and other media;
(b) one or more domain names for the website which must be transferable to another registrar; and
(c) if specified by the Seller, all the Seller’s rights and obligations in relation to any Third-Party Agreements.
Any software application listed for sale on Kaboom Domain must offer for sale:
(a) transfer of ownership of the software application with all third parties, including but not limited to, the Apple ® iTunes store and Google ® Play store
(b) all files contained in the software application including source code, logos, images, music, animation, films and other media; and
(c) if specified by the Seller, all the Seller’s rights and obligations in relation to any Third-Party Agreements.
Any domain name listed for sale on Kaboom Domain must offer for sale:
(a) one or more domain names which must be transferable to another registrar.
5.1 Legal Status of Agreeing to Sell a Digital Asset
(a) When a Seller agrees to sell a Digital Asset to a Buyer (whether by way of Auction, Classified or Catalog Sale) and the Buyer agrees to purchase that Digital Asset, then that agreement for the sale of the Digital Asset (“Sale Agreement”) will be legally binding on both the Seller and the Buyer.
(b) An offer to purchase a Digital Asset, whether made in a Classified, Catalog Sale or as a bid in an Auction, is binding and irrevocable on the Buyer.
(c) In the case of a bid at an Auction, the offer to purchase a Digital Asset will terminate once a higher bid is made by a third party.
(d) The Buyer’s offer to purchase a Digital Asset will not become binding upon a Seller until it is accepted by a Seller. This includes any bids made by the Buyer in an Auction which must be accepted by the Seller for the bid to be valid.
5.2 Terms and Conditions of the Sale Between the Seller and the Buyer
(a) The terms and conditions of the Sale Agreement must be specified by the Seller to the Buyer at the time of sale and/or negotiated separately between those parties after the Seller places its Listing.
(b) A Seller may, at the time of placing its Listing, elect to use the Default Sale Terms as the terms and conditions governing the sale of the Digital Asset. If so, both the Buyer and the Seller will be bound in relation to the Default Sale Terms.
(c) You acknowledge that in using or agreeing to the Default Sale Terms as the terms and conditions governing the sale and/or purchase of a Digital Asset:
(i) the Default Sale Terms have merely been provided by Kaboom Domain to enable Sellers and Buyers to efficiently agree on the terms and conditions of the sale without resort to significant negotiation. Consequently, the Default Sale Terms may not be appropriate or suitable to the sale or purchase of any Digital Asset;
(ii) you use the Default Sale Terms at your own risk and of your own choice. There is no compulsion for you to use or agree to the Default Sale Terms;
(iii) you have had the opportunity to obtain independent legal advice in relation to the Default Sale Terms; and
(iv) Kaboom Domain and its Associates have not in any way provided any legal advice or financial advice in relation to the Default Sale Terms or made any representation or warranty that the Default Sale Terms will be suitable for the sale or purchase of your Digital Asset.
You agree that if you, as a Seller, list a Digital Asset for sale via Auction, then, for the duration of that Auction, you will not advertise or offer to sell the Digital Asset through any other third-party service or make direct approaches to potential purchasers outside Kaboom Domain unless otherwise authorized by Kaboom Domain. You acknowledge that the purpose of this restriction is to avoid you potentially entering into agreements to sell your Digital Asset to two or more purchasers at the same time and to help provide Buyers with the assurance that should they purchase the Digital Asset from you via Kaboom Domain, they will obtain full title to the Digital Asset. Note that this restriction does not extend to digital assets as a Classified or Catalog Sale.
7.1 Kaboom Domain provides a software engine and website to enable:
(a) Sellers and Buyers to meet;
(b) Sellers to place Listings to advertise their Digital Asset for sale; and
(c) Sellers to conduct Auctions, Classifieds or Catalog Sales of their Digital Asset.
7.2 You acknowledge and agree that:
(a) Kaboom Domain is not an auctioneer;
(b) Kaboom Domain does not conduct Auctions on behalf of Sellers. All Auctions are conducted by Sellers on their own behalf;
(c) Kaboom Domain does not facilitate payments between Buyers and Sellers;
(d) Kaboom Domain and its Associates are not responsible in any way for the compliance by each Buyer or Seller with the Sale Agreement. Kaboom Domain do not guarantee and cannot ensure that a Buyer or Seller will complete a sale of a Digital Asset or act lawfully in their use of Kaboom Domain; and
(e) Kaboom Domain merely provides the software and website (being Kaboom Domain) by which Seller’s may conduct their own Auctions and Classifieds.
You agree that Kaboom Domain is an independent service provider to you and is not the employee, agent, partner, joint venture or subcontractor of any Seller or Buyer in relation to the sale of a Digital Asset. Kaboom Domain’s only role in that sale is the role set out in clauses 7.1 and 7.2
You agree that you do not have the power to bind Kaboom Domain in relation to any obligation owing to a third party. You agree that by using the Services (either as Seller or Buyer) that Kaboom Domain, in providing the Services and your access to Kaboom Domain, is providing a platform for you to be introduced to other Sellers or Buyers (as the case may be). Kaboom Domain is not a party to any transaction or agreement between any Seller or Buyer and is not responsible for any act or omission of any Seller or Buyer.
8.1 Fees payable by a Seller
When you, as a Seller, set up a Listing for the sale of your Digital Asset, you:
(a) Will pay an up-front Listing Fee with respect to the listing and the sale of the Digital Asset
(b) Agree that in the event your Digital Asset should sell, you will pay a Success Fee
When you, as a Seller, make a sale of your Digital Asset via your Listing, payment of the Success Fee is due and payable within 14 days. The Seller Permits Kaboom Domain to automatically deduct the Success fee from credit card or PayPal in the event the success fee is 14 days or more overdue.
8.2 How the Seller’s Fees are paid
When your Digital Asset is sold, an invoice for the Success Fee will be automatically forwarded to you, which may be paid by credit card or Paypal. Where the Buyer initiates payment via the Kaboom Domain website, the Success Fee will be automatically deducted
8.3 Kaboom Domain Credits
(a) You may pay for goods and services provided by Kaboom Domain by exchanging Kaboom Domain Credits in return for those goods and services.
(b) Kaboom Domain Credits are not equivalent to any currency. They may however be used to purchase certain specified goods and services from Kaboom Domain.
(c) Kaboom Domain Credits are not legal tender and cannot be traded or sold to third parties. Kaboom Domain Credits are only exchangeable for goods and services provided by Kaboom Domain in accordance with pricing and rules specified by Kaboom Domain from time to time.
(d) The balance of any Kaboom Domain Credits held by you may be reduced at any time by Kaboom Domain for any amount owing by you to Kaboom Domain on any account whatsoever including in relation to compensating Kaboom Domain for any loss that it determines (in its sole and absolute discretion) it has suffered because of any breach of this Agreement by you.
8.4 Kaboom Domain credits are not used to pay the Purchase Price
You cannot use Kaboom Domain Credits to pay the Purchase Price to any Seller. Kaboom Domain Credits may only be used to pay for goods and services provided by Kaboom Domain.
8.5 Expiry of Kaboom Domain Credits
(a) The balance of Kaboom Domain Credits held by you will expire 12 months from the date that you last spent any Kaboom Domain Credits to purchase any goods or services from Kaboom Domain. Balances of your Kaboom Domain Credits which are not spent within this 12-month period are lost.
8.6 Kaboom Domain is not an escrow service
(a) Kaboom Domain offers “Kaboom Domain Escrow”, an escrow service powered by a third-party escrow provider (Assembly), to sellers as a payment option. Kaboom Domain is not an escrow service and does not hold property on behalf of any person. All amounts deposited or paid directly to Kaboom Domain are property of Kaboom Domain and Kaboom Domain may use those funds as it sees fit. The only rights that you have to receive payment of any amounts held by Kaboom Domain are as set out in this clause 8 or under clause 9.
9.1 How refunds are paid
If Kaboom Domain issues you a refund, that refund will be paid to you using the same payment methods you used to pay any Fees to Kaboom Domain or via any other method Kaboom Domain chooses from time to time.
9.2 Withdrawal of a Classified or Auction
If you, as a Seller withdraw a Classified or Auction (where permitted by the Rules), then unless we otherwise expressly state to the contrary, there will be no refund of any amount of the Fees paid by the seller in respect of the Classified, Catalog Sale or Auction.
9.3 Circumstances in which a refund may be paid
(a) Kaboom Domain may refund an amount of any Kaboom Domain Fees paid by you if:
(i) any refund policy in the Rules entitle you to a refund; or
(ii) Kaboom Domain is required by law or considers that it is required by law to do so.
(b) Kaboom Domain’s determination as to whether a refund is required by this clause 9.3 is final and conclusive and may not be challenged by you.
Without limiting Kaboom Domain’s other rights arising under this Agreement, Kaboom Domain may suspend your User Account and your use of the Services at any time, with or without notice to you, and for any reason in its sole and absolute discretion, including if:
(a) Kaboom Domain considers that you have breached any of your obligations to Kaboom Domain under this Agreement;
(b) Kaboom Domain considers that you are using your User Account in bad faith or to collude in any way to reduce the amount of Fees that would ordinarily be payable to Kaboom Domain;
(c) you are using your User Account or the Services for illegal or fraudulent means or in a manner which Kaboom Domain in its sole discretion considers offensive, unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable;
(d) in Kaboom Domain’s sole and absolute opinion, the provision of the Services to you is resulting in an unreasonable load on Kaboom Domain’s servers or Kaboom Domain’s other services;
(e) if a notice of a claimed copyright infringement has been lodged against you, subject to the outcome of Kaboom Domain’s notice and takedown procedures or
(f) if Kaboom Domain has reasonable grounds to believe that you are a repeat infringer of copyright or other Intellectual Property Rights.
(a) Kaboom Domain may suspend the Services where permitted under clause 10.1 at any time including without limitation, during or after a Listing
(b) Kaboom Domain’s suspension of the Services may, in Kaboom Domain’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period; and
(c) Kaboom Domain may in its sole discretion reactivate the Services and your User Account for you at any time following suspension.
For the avoidance of doubt, you may not make withdrawals of, or spend any Kaboom Domain Credits during any period of suspension of your User Account. Further Kaboom Domain may in its discretion retain the balance of all Kaboom Domain Credits in your account towards compensating Kaboom Domain for any loss and damage it may have suffered because of your breach of this Agreement which lead to the User Account suspension.
During a suspension of your User Account, any Listings (whether for Auction or Classified) will be suspended or terminated (as determined by us in our sole and absolute discretion).
You agree that you will only use the Personal Information of other Sellers or Buyers for the purposes of this Agreement and for the purposes of interacting with them in relation to the sale or purchase of a Digital Asset. Unless separately agreed between you and another Seller or Buyer, you must not use their Personal Information for any other purpose.
You warrant to Kaboom Domain and its third-party providers that you will comply with all privacy laws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) in relation to the storage, use and transfer of Personal Information.
You agree that:
you will not use the Services for any illegal or fraudulent purpose or for any purpose other than participating in Classifieds or Auctions as a Seller or Buyer;
you will comply with all laws which must be complied with in relation to a Listing or the sale or purchase of a Digital Asset;
you will comply with any export restrictions which may apply to the export or import of Digital Assets or other Intellectual Property Rights to locations inside or outside Australia or the territory in which you are located;
you warrant that you will not, by engaging Kaboom Domain to provide the Services, place Kaboom Domain in breach of any law or obligation owing to a third party;
you will not undertake any act or cause any omission which will bring Kaboom Domain, its brand or other Sellers and Buyers into disrepute;
you will not use the Services in a manner that may lead to the suspension of the Services under clause 10.1; and
you will provide Kaboom Domain with all information requested by Kaboom Domain Which Kaboom Domain requires to provide the Services.
This Agreement will commence on the date that you first create a User Account with Kaboom Domain and will terminate at the later of the date that:
(a) the User Account is terminated or closed; or
(b) you otherwise permanently cease using the Services.
If after termination or closure of your User Account, your User Account is reactivated or a new User Account is opened, or you otherwise recommence to use the Services, then you will again become bound by this Agreement at that time.
This Agreement and your User Account may be terminated by Kaboom Domain at any time for any reason whatsoever with or without notice to you.
This Agreement may be terminated by Kaboom Domain immediately on written notice to you:
(a) if you are in default or breach of this Agreement; and
(b) Kaboom Domain has provided you with 24 hours written notice of the default or breach and where the breach or default is capable of rectification, you fail to rectify the breach or default within the period of the notice;
(c) Kaboom Domain has reasonable grounds to believe that you are a repeat infringer of copyright or other Intellectual Property Rights; or
(d) without cause by giving thirty (30) days’ notice to you.
Upon the termination of this Agreement:
(a) any Listings which you have placed on Kaboom Domain will instantly terminate;
(b) Kaboom Domain will, within a time determined by Kaboom Domain, withdraw the use of the Services from you;
(c) any Kaboom Domain Credits you hold will be cancelled immediately;
Clauses 3.2, 9, 11, 13.5, 14, 15 and 16 will survive the termination of this Agreement.
You acknowledge that Kaboom Domain and its Third-Party Providers have made no warranties that the Services will be continuous or error free.
You acknowledge and agree that Kaboom Domain and its Third-Party Providers shall have no liability or responsibility to you whatsoever for any unauthorized withdrawals or unauthorized spend of your Kaboom Domain Credits, including where such withdrawal or spend arises from:
(a) any of the events described in clause 17; or
(b) any unauthorized use or access of your User Account or Kaboom Domain.
You acknowledge and agree that Kaboom Domain and its Third-Party Providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Kaboom Domain under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses 14.7 and14.8, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
Subject to clauses 14.7 and 14.8, you agree that Kaboom Domain and its Third Party Providers will not be liable in respect of any claim by you (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential loss or damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether or not as a result of any breach or default by, or any negligence of, Kaboom Domain or its Third Party Providers.
The maximum aggregate liability of Kaboom Domain under this Agreement for all breaches of this Agreement and for any negligent or other act or omission in relation to this Agreement, will not exceed the amount of the Fees paid by you to Kaboom Domain.
If the Canadian Competition Act (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of Kaboom Domain is limited, at the option of Kaboom Domain, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Kaboom Domain will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
You indemnify Kaboom Domain, its agents, officers, employees, and Third-Party Providers (“Indemnified”) against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which any of the Indemnified suffer or incur as a direct or indirect result of:
(a) any breach by you of any representation, warranty or term of this Agreement;
(b) any acts or omissions by you which are described in clause 10.1;
(c) any breach by you of your obligations to a third party, including another Seller or Buyer;
(d) any infringement by you of the rights of a third party including Intellectual Property Rights; and
(e) any legal proceedings threatened or initiated against Kaboom Domain by a third party because of the events described in clause 15(a) to (d) above.
You acknowledge that Kaboom Domain is the owner of all Intellectual Property Rights which subsist in your User Account and Kaboom Domain (but not your Digital Asset). You acknowledge that you have no Intellectual Property Rights in your User Account or in Kaboom Domain
You acknowledge that the obligations of Sellers and Buyers in relation to the transfer of the Intellectual Property Rights in a Digital Asset from a Seller to a Buyer will be set out in the Sale Agreement.
Each Seller warrants to Kaboom Domain that its Digital Asset and its Listing always will not infringe the Intellectual Property Rights of a third party.
You acknowledge and agree that Kaboom Domain will not be liable or responsible for any breach by a Buyer or Seller of any Intellectual Property Rights or other rights held by a third party in relation to the supply or purchase of a Digital Asset or in relation to a Listing.
You hereby grant Kaboom Domain a royalty free, irrevocable, worldwide, perpetual license to display and use the contents of your Listing on Kaboom Domain, including any excerpts from your Digital Asset which are contained in your Listing.
You agree that Kaboom Domain and its Third-Party Providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Kaboom Domain complying with its obligations under this Agreement, where such failure or delay has arisen or is anticipated to arise as a direct or indirect result of:
(a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;<
(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
(c) a significant demand is placed on Kaboom Domain’s services which is above the usual level of demand and which results in a failure of Kaboom Domain’s software and hardware to function correctly;
(d) the failure of any third party (including without limitation, any bank or other financial organization) to fulfil any obligations to Kaboom Domain; or
(e) any other circumstances or events which are beyond the reasonable control of Kaboom Domain or the Third-Party Provider (as the case may be).
Kaboom Domain may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to you (“Amendment Date”). You agree that without limiting the ways in which it may be bound by such amendments, you will be deemed to have agreed to such amendments by making use of or accessing your User Account or Kaboom Domain after the Amendment Date.
Unless otherwise requested in writing by you, Kaboom Domain may use your corporate identity (if applicable) as part of promoting the Services and Kaboom Domain in the market place.
Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:
(a) in the case of a notice delivered by hand, when so delivered;
(b) in the case of a notice sent by pre paid post, on the third day after the date of posting;
(c) in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the dispatching facsimile machine which confirms that the facsimile has been successfully sent; or
(d) in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.
This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
Kaboom Domain may assign its rights and novate or transfer obligations which arise under this Agreement. You must not assign, novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of Kaboom Domain (which may be withheld).
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.