(1) These Terms of Service Agreement ("Agreement") constitutes a legally binding agreement between Giant Panda LLC (hereinafter "Company") and you, concerning your access to and use of giantpanda.com ("Site") and the Company's domain name parking and monetization services (collectively, the "Services"). The terms "we", "us" or "our" shall refer to the Company. The terms "you", "your", "User" or "customer" shall refer to any individual or entity who accepts this Agreement or uses/accesses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
(2) BY USING THE SERVICES, (II) SUBMITTING REGISTRATION INFORMATION, (III) CHECKING THE "I AGREE" CHECKBOX AT THE TIME OF REGISTRATION, (IV) SUBMISSION OF PARKED DOMAINS TO US; OR (V) USE OR ACCESS OF THE SITE OR THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE RED, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME BY THE COMPANY IN ITS SOLE AND ABOSLUTE DISCRETION. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.
(3) PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. AS OUTLINED IN SECTION 16 BELOW, THEY INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH (WITH LIMITED EXCEPTIONS) REQUIRE ANY DISPUTES BETWEEN US TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT.
(4) We reserve the right to change or modify this Agreement at any time and in our sole discretion. We will alert you about any changes by updating the "Last Updated" date at the beginning of this Agreement, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review this Agreement to stay informed of updates. Your continued access or use of the Site and/or Services after the date any changes or modifications to this Agreement become effective constitutes your acceptance of the revised Agreement and all of the terms incorporated therein by reference. If you do not agree to abide by this or any future Agreement, you will not access, browse, or use (or continue to access, browse, or use) the Site or the Services. Without limiting anything set forth elsewhere in this Agreement, you agree that we shall not be liable to you or any third party as a result of any losses suffered by any modification or amendment of this Agreement or any policy of the Company.
(5) You acknowledge and agree that the Company contracts with third parties, including, but not limited to, upstream providers ("Upstream Providers") and, therefore is obliged to pass on a variety of rules, regulations, and other obligations to the customer. You understand and agree that it may be necessary for the Company to disclose your stored data (such as name, first name, company, address, email, telephone number and/or other appropriate data) to the relevant Upstream Providers for the purpose of the optimized monetization of your Parked Domain.
(1) In order to enroll in the Services, you must create an account with us ("Account"), enter each of the domain names you want to park with us ("Parked Domain(s)") into your Account, and point each Parked Domain to the domain name servers and IP addresses specified by us and/or redirect each Parked Domain to the Internet URL specified by us. As the registered owner of the Park Domain(s), you are solely responsible for any content directly or indirectly displayed as a result of your directing the domain to our Services.
(2) Under this Agreement, you hereby grant us a revocable license to display, at our option, content on your Parked Domains for the duration of this Agreement. Under this license, we may, in our sole discretion for any reason or for no reason at all, temporarily or permanently stop or modify the content displayed on any Parked Domain, and you agree that we and our directors, officers, employees, contractors, representatives, agents and affiliates are not liable for loss or damages resulting from such stoppage or modification.
(3) We shall provide you with access to a web-based interface that you may use to manage your Parked Domains, view reports of traffic to your Parked Domains, view reports of your payments from the Company, and create additional Parked Domains.
(1) You will be paid monthly for your percentage of the Company's recognized and received gross revenue generated from your Parked Domains, minus any expenses related to your Parked Domains, within fifteen (15) days after we have received payment from the Upstream Providers for the preceding month. For the avoidance of doubt, if we receive October's payment on November 5, for example, we will pay you on or before November 20. Notwithstanding the foregoing, you acknowledge and agree that while Upstream Providers typically pay for the monetization resulting from our Services within thirty (30) calendar days, in some cases, Upstream Providers may take more time to pay moneys due to us.
(2) It is your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that you receive pursuant to this Agreement, and you agree to indemnify us for any claim or assessment of taxes and any costs or damages relating thereto. We are entitled to offset any refunds you are obligated to provide under this Agreement against any payments that would otherwise be due to you. Fraudulent, questionable, or low-quality traffic will not be counted for purposes of calculating any compensation owed to you, and may result in the termination of this Agreement, the forfeiture of payments due to you, or the cancellation of the enrollment of particular Parked Domains. Whether traffic will be considered fraudulent, questionable, or low-quality is and will be determined by us at our sole and absolute discretion.
(3) We will perform our obligations hereunder in a timely manner, in good faith and with all due skill and care. However, you hereby expressly acknowledge and agree that we cannot and do not guarantee future earnings or performance.
(1) We may guarantee an annual average availability of its Internet web server of at least 97 percent. Excluded from the aforementioned guarantee are times when the web server is not accessible over the Internet due to technical or other problems that are beyond the scope of our control or responsibility (e.g. force majeure, third party fault, DDOS). A continuous availability of data is not herein guaranteed, and you agree and acknowledge that scheduled time for technical work (e.g. maintenance) is necessary within a reasonable extent (regularly up to 1% of the total running time). Necessary operational downtime for preventive maintenance work will be announced as early as possible.
(2) We will immediately rectify performance problems (such as technical difficulties) within the reasonable framework of existing technical and operational possibilities. You must immediately report any identifiable problems or technical difficulties or faults to the Company in writing.
(3) If you become aware that the provision of the Services is disturbed by circumstances that are within our responsibility, you must immediately submit a written complaint to us. You have a right to terminate this Agreement only if, on the basis of our violation of any of the terms and conditions set forth herein, you have notified us in writing, clearly set forth our alleged violations, and granting us a grace period of two weeks for the provision of the contractual services, and this period has elapsed.
(4) We may reject a Parked Domains if we determine, at our sole discretion, that there is reasonable suspicion that it violates legal provisions, third party rights, the terms of this Agreement, or legitimate interests of the Company (e.g. Spam Quality).
(5) You agree that the appearance of landing page, links, and results provided under this Agreement will be decided by us, at our sole discretion, and shall be subject to change and modification by us at any time. In addition, changes in the keyword and related terms can be made by the Upstream Providers and/or us, at our sole discretion. You acknowledge and agree that you must ensure that your Parked Domains do not violate the rights of third parties including, but not limited to, those rights pertaining to the adjustment of the keywords or color schemes. You shall hold the Company harmless from and against all liability if an adjustment of keywords or color schemes, either through an automated or manual adjustment, results in 1) violations of third party's right; or 2) a change in your Parked Domain's value.
(6) You acknowledge and agree that (a) Parked Domains can be banned, and therefore cannot be monetized, for reasons out of our control; and (b) Parked Domains can be smart priced for reasons out of our control, which can cause a reduction in earnings. You acknowledge and agree that we shall not be held liable for, and you hereby release the Company from and against, any and all liability, demands, claims, costs, losses, damages and expenses, known or unknown, direct or indirect, resulting or arising from your Parked Domain name being banned or smart priced.
(7) You acknowledge and agree that we may change the source of content displayed on your Parked Domains at any time.
(1) You represent and warrant that the use of the Services, including any content, Parked Domain or information you submit, will comply with this Agreement and all applicable local, state, federal, and international laws, rules, and regulations. You represent and warrant that you will:
Not enroll a domain name in the Service if you do not have the right to do so or if such enrollment would violate any laws or intellectual property rights of another, including without limitation trademark or service mark rights.
Not to monetize any domains with the Company that are in violation of any applicable local, state, federal, and international laws, rules, and regulations, or any privacy rights, trademarks and/or third-party rights or offend common decency;
Take account and adhere to recognized principles of data security (such as to keep access codes and passwords secret and to protect them from use by unauthorized third parties) and to implement reasonable protective measures against computer viruses, especially their dissemination;
Immediately report noticeable defects or difficulties to Company, pursuant to Section 4(2) and 4(3) of this Agreement and take all reasonable measures to enable the determination of the defects or damages and their causes or to facilitate the rectification of the fault;
Ensure compliance with legal specifications and regulatory requirements in as far as these are currently or shall in future be required for the participation in the Service.
(2) Not authorize or engage in, or engage, allow, or enable a third party, on your behalf, to do any of the following:
To change and/or obscure all or part of the search results or of the landing page.
To edit, filter, or shorten search queries by appending terms or altering them in any other form.
To automatically generate searches on a domain.
To obstruct the view of a landing page or the search results or to erase it using a frame.
To load or present a landing page in a pop-up, pop-under, Exit-Window or similar representations forms.
Directly or indirectly:
Mislead or incentives visitors to generate searches or to click on search results.
Queries or clicks on results generated by misleading or incentivized means, including: queries or clicks required in order to obtain some benefit or to perform another function, such as leaving a webpage or closing a window.
Use of any Parked Domain for the delivery of unsolicited commercial e-mail messages or any other illegal or dubious purpose or activity.
Have you, your employees, contractors or agents clicking on results except in the course of normal individual use.
Engage in any kind of traffic manipulation, including but not limited to inflation, deflation, or other adjustment of the traffic or bidded clicks received by any of your Parked Domains
To fraudulently generate searches or clicks or modify searches.
To automatically retrieve landing pages or search results through "crawl", "spider", indexing, "cache" or otherwise.
To monetize domains through the Company that violate the trademark rights of a third party.
(3) You warrant that the data submitted to us is correct and complete. In the event of any changes, you must immediately notify us in writing. Upon our request, you agree to confirm the current accuracy of the submitted data.
(4) You are solely responsible for ensuring that your Parked Domains are not in violation of this Agreement, any applicable local, state, federal, and international laws, rules and regulations, the rights of others or offend common decency.
(5) You, hereby, acknowledge, accept and agree to the applicability of the rules of ICANN, particularly in the event of disputes over the domain due to violation of trademarks, names and other property rights (Uniform-Domain-Name-Dispute-Resolution-Policy).
(6) You are under the obligation to keep passwords, and all other access codes, obtained from us for access to the Services, strictly confidential and to protect them from unauthorized access. All statements that are made using such passwords and/or access code shall apply and shall be deemed as executed by you. You, therefore, accept full responsibility for any unauthorized use of passwords and/or access codes. You must immediately inform us upon becoming aware that an access code or password was accessed by an unauthorized third party. In addition, you are required to immediately change the password if you have reason to suspect unauthorized access to such information. Moreover, for security reasons, you should update all passwords at regular intervals. If a password is incorrectly entered repeatedly or upon reasonable suspicion, determined at our sole discretion, of unauthorized use of your Account or access by a third party, we have the right to restrict network access. We will notify you as soon as possible if such restrictions are implemented.
(7) In the event of your breach of your obligations under this Agreement (or upon an order issues by government entities or a court of competent jurisdiction), we shall have the right, at our sole discretion, to terminate this Agreement, to suspend, in whole or in part, the Services or monetization of your Parked Domains or to cancel the enrollment of some or all of your Parked Domains. You shall indemnify us, and hold us harmless, against any claims or suits arising from our aforementioned actions. Moreover, you acknowledge and agree that we shall not be held liable for damages, claim, demand, expense or responsibility resulting from our termination of the Agreement or the implementation of a whole or partial block of your Parked Domains that contains, at our sole and absolute discretion, offensive, discriminatory or otherwise legally objectionable content or that otherwise violate the terms of this Agreement. We will inform you immediately of such action and request the removal of the unlawful domains or request that you demonstrate, and where necessary, prove their legal compliance. Company will lift any block applied as soon as the suspicion of illegality is nullified or, if applicable, when allowed pursuant to a government or court order.
(8) You acknowledge and agree that, upon becoming aware of your breach of this Agreement or upon the request from the Company, you shall no longer participate in the Services with the concerned Parked Domain. You acknowledge and agree to reimburse the Company for any damages or costs that result from the violation of your obligations.
(1) Any optimization techniques used by us, any related terms or query strings placed on parking pages and any data related to our activities are owned solely by us and are expressly prohibited from being copied, transferred or used outside of our system. You understand that if you decide to stop doing business with us that you are not allowed to copy the settings and port them to a competitive service or your own service.
(2) You acknowledge that we and our Upstream Providers may employ various measures, including technological measures, on a random, scheduled, or continuous basis to identify fraudulent traffic and verify any and all traffic and bidded click figures for Parked Domains, and that we and our Upstream Providers will in our sole discretion determine what portion of your traffic is genuine and utilize this determination to compute your payments due under this Agreement.
(1) You have no right to transfer, sell, lease, syndicate, sublicense or assign of any of your rights under this Agreement, including your right to use the links or results provided by us on the Parked Domains and any attempt to do so shall be null and void. Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. We may assign our rights and duties under this Agreement to any party at any time without notice to you. You may not assign your rights and duties under this Agreement to any party at any time without our written prior consent.
(1) Each Party represents and warrants that: (i) they each have all requisite power and authority to legally execute, deliver and perform their obligations under this Agreement, including ownership and/or control of the Parked Domains referenced herein; (ii) this Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each Party by the other Party in accordance with its terms; and (iii) the execution, delivery, and performance of this Agreement by you and the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation; any order, judgment, or decree; any provision of corporate by-laws or other documents; or any agreement or other instrument.
(2) You represent and warrant that each Parked Domain is duly registered; and either that you are the exclusive and official registrant for each Parked Domain or that you are expressly and exclusively authorized by the official registrant of each Parked Domain through a valid and enforceable written agreement to authorize us to provide the services contemplated under this Agreement as of the date and during the term such domain name remains a Parked Domain. You further represent and warrant that you will use the information and services provided by us in a manner that complies with any and all applicable laws.
(1) Subject to the terms of this Agreement, each Party continues to own its respective items of intellectual property, including its patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by us to you, or by any disclosure of any confidential information to you under this Agreement. You agree that you will not create or attempt to create a copy, derivative work, substitute service or substitute product using the services provided under this Agreement or any information related thereto.
(2) You shall not and shall not allow yourself, your representatives or employees or any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the services provided under this Agreement or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of the Company and its Upstream Providers.
(1) You hereby acknowledge that you understand and accept all the legal data protection regulations in this Agreement. You understand that the Company for the performance of this Agreement must store personal data (e.g. name, first name, company, (company-) address, email / phone contact). For the purpose of the contract fulfilment (monetization), stored data (name, company, address, email/phone contact) can be disclosed to Upstream Providers. Your hereby grant your consent for the disclosure of such data. You may at any time withdraw your consent by providing express written notification sent to: [email protected]. Any further disclosure of the data shall not take place unless required by judicial or official order.
(2) You acknowledge, understand and agree that data protection of data transmission in open networks like the Internet, cannot be guaranteed and that it is possible, due to the structure of the Internet, that other third parties and institutions, out of our control, ignore or disregard the data protection.
(3) You acknowledge, understand and agree that that unencrypted data transmitted over the Internet is not secure and can be taken note of and altered by third parties. Other participants in the Internet are, among others, technically able to gain unauthorized access to the network security and thereby intervene and control the message traffic. Non-encrypted transmissions of personal data or other classified material is not recommended.
(1) You shall keep confidential all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementations, documentation, functional and interface specifications, customer information, pricing information, marketing information and other information related to the subject matter of this Agreement, whether written, transmitted, or oral, including but not limited to URLs, parameters, data reported, developmental and technical information, gross revenue figures, net revenue figures, amounts paid to you by us, the terms of this Agreement, and the look, feel and functionality of the Service, and any other non-public information (collectively, the "Confidential Information"). You may not make any statements in any medium concerning the content displayed on your Parked Domains, including statements concerning its source or origin.
(2) You shall not disclose any of the Confidential Information to which you have access to, or any information derived therefrom,, and you agree:
To hold the Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information;
Not to disclose any such Confidential Information or any information derived therefrom to any third party;
Not to make any use whatsoever at any time of such Confidential Information for your own benefit or the benefit of third parties;
Not to copy or reverse engineer any such confidential information.
(3) This Agreement applies to all Confidential Information presently, previously or hereafter supplied to you, whether disclosed orally or in writing. You hereby agree to indemnify the Company against any and all losses, damages, claims, expenses, and attorney's fees and costs incurred or suffered by us as a result of a breach of this Agreement by you or your representatives.
(4) You and your representatives shall use the Confidential Information solely for purposes pertaining to the Services provided by the Company or the relationship with the Company and shall not in any way use the Confidential Information to the detriment of, or to compete with or provide the Services of, the Company. Nothing in this Agreement shall be construed as granting any rights to you, by license or otherwise, to any of the Confidential Information.
(5) You shall not create, publish, distribute, or permit any communication that makes reference to us in connection with this Agreement, or use any of our trademarks or service marks without receiving prior written consent from a duly authorized representative of the Company. You give us the right to disclose your identity in our marketing and promotion materials, both electronic and printed.
(1) You acknowledge that our Upstream Providers and affiliates are third party beneficiaries of this Agreement and are entitled to enforce any or all of its provisions against you for any reason or no reason at all with or without notice, including terminating the display of links and results on any or all of your Parked Domains. In that event, we may attempt to provide you with comparable services, but we reserve the right to terminate this Agreement with you without penalty to us. This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement) with any remedy, claim, or cause of action or privilege against us.
(1) IN NO EVENT WILL THE COMPANY OR ANY THIRD PARTY BENEFICIARY TO THIS AGREEMENT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS OR EARNINGS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE COMPANY OR ANY THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; DENIAL OF SERVICE; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT; AND INFRINGEMENT. ANY LIABILITY OF THE COMPANY TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED AND RECOGNIZED BY THE COMPANY WITH RESPECT TO THE DOMAIN(S) MONETIZED BY THE COMPANY IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST THE COMPANY. YOU AGREE THAT YOU AND THE COMPANY HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS,
(2) ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. THE COMPANY ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE SERVICES AND PARKED DOMAINS WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE SERVICES OR PARKED DOMAINS WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY THE COMPANY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY THE COMPANY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY THE COMPANY UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM THE COMPANY. YOU ACKNOWLEDGE THAT THE COMPANY CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGES THE LEGAL RIGHTS OF OTHERS.
(3) You acknowledge and agree that the Company shall not be liable for the incorrect functioning of the infrastructure and communication of the internet or information provided over it (neither for its completeness, accuracy or completeness nor that they are free of rights of third parties). The Company is not liable for use outages that are caused by third parties outside its control.
(4) You understand, acknowledge and agree that the Company shall not be liable for the transmission speed on the Internet as well as the content provided therein. The Company is not obligated to examine your domains for possible violations of law, domains are the sole responsibility of the customer. In the event of infringement of legal rights, the Company is entitled to terminate the concerned domain at your expense, even if no claims are filed or alleged against you.
(5) The Company does not guarantee specific revenue, click rates or click prices which you hereby recognize fluctuate dependent upon market forces.
(1) You at your own expense will indemnify, defend and hold harmless the Company and any third-party beneficiaries to this Agreement and their employees, directors, officers, representatives, contractors, agents and affiliates against any claim, suit, action, or other proceeding brought against the Company or any third-party beneficiary to this Agreement by you or another based on or arising from any claim or alleged claim arising out of the operation of the Parked Domains; any claim or alleged claim arising from this Agreement; a third party claim that your Parked Domain(s) infringe any copyright, trade secret, or trademark of a third party; or your use of the Services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. You will not enter into a settlement or compromise of any such claim without the Company's prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by the Company in connection with or arising from any claim, suit, action or proceeding.
(1) The Agreement shall continue in effect until otherwise terminated pursuant to the terms hereof. Notwithstanding the foregoing, You acknowledge that the Company may change the source of content displayed on your Parked Domains at any time.
(2) You have the right to terminate this Agreement without cause with a WRITTEN termination notice period of thirty (30) days.
(3) Notwithstanding the foregoing, the Company may terminate this Agreement without notice as set forth in this Agreement or if:
Your Parked Domain violate the Uniform-Domain-Name-Dispute-Resolution Policy (UDRP);
Your Parked Domains have problems relating to Spam-Quality, Click Fraud or similar, as determined by us at our sole discretion;
Rights of third parties are violated through domains of the customer.
(4) Upon expiration or termination of this Agreement, we will pay you the balance due to you as of the date of expiration or termination within thirty (30) days of expiration or termination.
Please read the following arbitration agreement in this Section ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with the Company and limits the manner in which you can seek relief from us.
(1) Applicability of Arbitration Agreement
You agree that any dispute, controversy, or claim relating in any way to this Agreement, your access or use of the Service, or to any aspect of your relationship with us (each a "Dispute" and collectively, the "Disputes"), will be resolved by binding arbitration, rather than in court, including threshold questions of the arbitrability of such Dispute except that (1) you or the Company may assert claims in small claims court, but only if the claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (2) you or the Company may seek injunctive or equitable relief in a court of proper jurisdiction if the claim relates to intellectual property infringement or other misuse of intellectual property rights.
(2) Dispute Resolution Process
The Parties agree to first attempt in good faith to negotiate any Dispute informally for at least thirty (30) days before initiating arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to: Giant Panda LLC, Attn: Legal Department, 1413 Ave Ponce de Leon, Ste 401 PMB 0707, San Juan, PR 00907. The dispute resolution process commences upon the receipt of the of the above mentioned written notice. Both parties agree to meet and confer personally, by telephone, or by videoconference (hereinafter "Conference") to discuss the dispute and attempt in good faith to reach a mutually beneficial outcome that avoids the expenses of arbitration or, where applicable, litigation. If you are represented by counsel, your counsel may participate in the Conference as well, but you agree to fully participate in the Conference. Likewise, if we are represented by counsel, our counsel may participate in the Conference as well, but we agree to have a company representative fully participate in the Conference (our in-house counsel qualifies as a company representative). If the parties do not reach agreement to resolve the dispute within thirty (30) days after initiation of this dispute resolution process, either party may commence arbitration, file an action in small claims court, or file a claim for injunctive or equitable relief in a court of proper jurisdiction for matters relating to intellectual property infringement, if the claims qualify.
(3) Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding after participating in the dispute resolution process, you must send a letter requesting arbitration and describing your claim to the address mentioned in subsection B of this Section ("Dispute Resolution Process"). The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website: www.adr.org. The parties will mutually select one arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. The arbitration will be conducted in English and, except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Sam Juan, Puerto Rico. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Each party will bear its own lawyers' and experts' fees and expenses, regardless of the arbitrator's final decision regarding the Dispute.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR YOUR USE OF THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
(4) Waiver of Jury Trial
YOU AND THE COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the first subsection of this Section 16 ("Applicability of Arbitration Agreement"). An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(5) Waiver of Class Actions and Class Arbitrations
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE (INCLUDING, WITHOUT LIMITATION, PAGA) OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party's claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and the Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection's limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in San Juan, Puerto Rico. All other claims shall be arbitrated.
(6) Severability
Except as provided in this Section, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(7) Survival of Agreement
This Arbitration Agreement will survive the termination of this Agreement and/or your relationship with the Company.
(8) Modification
Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing to us at the address mentioned in subsection 2 of this Section ("Dispute Resolution Process").
These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Puerto Rico (without regard to conflict of law rules or principles of any other jurisdiction that would cause the application of the laws of any other jurisdiction). Any dispute between the parties that is not subject to arbitration as set forth in the Arbitration Agreement above or cannot be heard in small claims court, shall be resolved in the state or federal courts in the Commonwealth of Puerto Rico, and the United States.
(1) No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
(1) You agree that you will not export or re-export, directly or indirectly, the Service and/or other information or materials provided by us hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a "terrorist supporting" country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
(1) We make no representation or warranty that the content available on this site or the services found at this site are appropriate in every country or jurisdiction, and access to this site or the services found at this site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this site or the services found at this site are responsible for compliance with all local laws, rules and regulations.
(1) Any notice or other communication required or permitted to be delivered to the Company under this Agreement shall be in writing and deemed properly delivered by certified mail, return receipt requested, to 1413 Ponce de Leon Ave., 4th Floor, San Juan, PR 00909, USA, attn: Legal Department. Any notice or other communication required or permitted to be delivered to you by the Company under this Agreement shall be deemed properly delivered by e-mail to the e-mail address that you have provided in your Account.
(1) This Agreement, incorporating any other applicable Company policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
(1) You and the Company are independent contractors, and nothing in this Agreement creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on our behalf.
(1) All sections which by their nature should survive the termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by us or you. Notwithstading the foregoing, the following provisions shall survive the termination of this Agreement or the cancelled enrollment of a Parked Domain hereunder: Sections 6, 9-14, and 16-24.
(1) The Parties agree that, during the term of this Agreement, the Company may revise the terms and conditions of this Agreement, including but not limited to the services provided under this Agreement. If You disagree with any proposed revision to this Agreement, you may terminate this Agreement by providing the Company with written notice of your intent to terminate within thirty (30) days of the date of notice of the revision. You agree that your continued acceptance of Services under this Agreement following any revision constitutes your acceptance of the revision.