1. ABOUT US
1.1 Brandpa, (“we” and “us”), a company operated by HostPapa Inc., DBA Brandpa, registered in Canada, 5063 North Service Road, Burlingthon, ON, L7L 5H6. We operate the website brandpa.com (“Website”).
2. OUR CONTRACT WITH YOU
2.1 These terms and conditions (“Buyer Terms”) and our Terms of Use apply to you when you order or purchase domain names via our Website. You agree to purchase domain names listed on the Brandpa marketplace by a seller (“Seller”) subject to these Buyer Terms and the Terms of Use (together the “Agreement”).
2.2 The terms of the Agreement apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 The Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
3. PURCHASE OF DOMAIN NAMES
3.1 Please follow the onscreen prompts within the Website to place an order to purchase any domain names (“Services”). You may only submit an order using the method set out on the Website. Each order is an offer by you to buy the Services specified in the order subject to the terms of the Agreement.
3.2 Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
3.3 After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4 Our acceptance of your order takes place when we send an email to you to accepting it (“Order Confirmation”), at which point and on which date the agreement between you and us will come into existence. The agreement will relate only to those Services confirmed in the Order Confirmation.
3.5 If we are unable to supply the Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Services, we will refund you the full amount.
4. USE OF THE WEBSITE
4.1 Any descriptions or illustrations on our Website are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Agreement or have any contractual force.
4.2 Subject to our right to amend the Website and Brandpa marketplace set out in clause 4.3, we will supply access to the Website and Brandpa marketplace to you in accordance with the terms of this Agreement at the date of your order in all material respects.
4.3 We reserve the right to amend the Website and Brandpa marketplace if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.
4.4 We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to provide the Services by such dates will not give you the right to terminate the Agreement.
5. YOUR OBLIGATIONS
5.1 It is your responsibility to ensure that: (a) the terms of your order are complete and accurate; (b) you co-operate with us in all matters relating to the Services; (c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (d) you obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and (e) you comply with all applicable laws.
5.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 5.1 (“Your Default”): (a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Agreement under clause 12; (b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and (c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5.3 You agree to keep your email address up-to-date, so that you can be contacted during the purchase process. You can update these details yourself, via the link that we email you when you purchase the domain. If your email address becomes unavailable, or we do not receive a timely response to an email, we reserve the right to cancel your purchase.
6. CHARGES
6.1 You must pay us fees for all Services purchased by you via the Website (“Charges”). The Charges shall be the prices quoted for the Services on our Website at the time you submit your order.
6.2 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
6.3 The Charges may change from time to time, but changes will not affect any order you have already placed.
6.4 The Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, in addition at the same time as you pay the Charges.
7. PAYMENT
7.1 Payment for the Services is in advance unless you have opted to pay in instalments, then the terms of clause 7.2 apply to such sales. We will take your first payment upon acceptance of your order and will take subsequent payments monthly.
7.2 Where you choose to pay for Services by instalments, you will pay the Charges in accordance with the Brandpa selling domains via instalments structure published on our Website at the time of each sale of Services in instalments.
7.3 You can pay for the Services using a debit card or credit card. Your designated bank account will be charged automatically each month.
7.4 You will have access to electronic invoices on the Brandpa website once your order has been made.
7.5 If you fail to make a payment under the Agreement by the due date, then, without limiting our remedies under clause 12 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.6 All amounts due under the Agreement must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.7 Where you choose to pay for a domain name by instalments, Brandpa will allow you to request changes to the DNS of the domain name. These changes would allow you to make use of the domain for website hosting and email until either it is fully paid for, or the purchase is canceled for any reason. Brandpa reserves the right to refuse any requests to change DNS at our discretion if we believe they are illegal or could otherwise damage the reputation of the domain name.
7.8. When purchasing a domain name through an instalment plan:
7.8.1. Hosting by Brandpa: When purchasing a domain name through an instalment plan, the domain name will be hosted by Brandpa until the full payment is received.
7.8.2. Transfer Responsibility: Once the domain name has been fully paid off, the responsibility for ensuring the transfer of ownership lies with you, the purchaser.
7.8.3 Transfer Deadline: It is imperative that the domain name transfer is initiated and completed on or before November 2023, assuming full payment has been made. This only applies to the domain names sold before November 2023.
7.8.4. Ownership Renouncement: Failure to complete the domain name transfer within the specified deadline will result in the voluntary renouncement of your right to own the domain name.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All intellectual property rights in or arising out of or in connection with provision of the Services will be owned by us, with the exception of any domain names and their logos that you have purchased and fully paid for.
8.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to use the Brandpa marketplace via our Website for the purpose of buying Services and to copy the deliverables specified in your order for the purpose of receiving and using the Services and such deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause.
8.3 When you complete the purchase of a domain name via the Brandpa marketplace, ownership of the domain and the copyright for the corresponding domain’s logo will be transferred from Brandpa to you.
9. PERSONAL DATA
9.1 We will use any personal data you provide to us to: (a) provide the Services to you; (b) process your payment for the Services; and (c) inform you about similar products or services that we provide.
9.2 Further details of how we will process personal data as a data controller are set out in our Privacy Policy.
10. LIMITATION OF LIABILITY
10.1 Nothing in the Agreement limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 Subject to clause 10.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; and (g) any indirect or consequential loss.
10.3 Subject to clauses 10.1 and 10.2, our total liability to you arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total Charges paid under the Agreement.
10.4 We have given commitments as to compliance of the Services with the relevant specification in clause 4.2 In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
10.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.6 Nothing in these Buyer Terms limits or affects the exclusions and limitations set out in our Terms of Use.
11. CONFIDENTIALITY
11.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 11.2.
11.2 We each may disclose the other’s confidential information: (a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Agreement. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Agreement.
11.4 We reserve the right to publicise a list of any domain name sales that we complete, for example on our Website or in our newsletter. We do not disclose the new owners or the price of individual past sales without asking for prior consent. However, we reserve the right to publicise aggregated statistics of our sales, such as the average sale price, or total value of any sales.
12. TERMINATION
12.1 Without limiting any of our other rights, we may suspend provision of the domain names to you, or terminate the Agreement with immediate effect by giving written notice to you if: (a) you commit a material breach of any term of the Agreement and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so; (b) you fail to pay any amount due under the Agreement on the due date for payment; (c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction]; (d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or (e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
12.2 On termination of the Agreement you must return any domain name specified in your order which has not been fully paid for.
12.3 Termination of the Agreement will not affect your or our rights and remedies that have accrued as at termination.
12.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
13. FORCE MAJEURE
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (“Force Majeure”).
13.2 If a Force Majeure takes place that affects the performance of our obligations under the Agreement: (a) we will contact you as soon as reasonably possible to notify you; and (b) our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure.
13.3 You may cancel the purchase of the domain names affected by Force Majeure which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing our obligations up to the date of the occurrence of the Force Majeure.
14. COMMUNICATIONS BETWEEN US
14.1 When we refer to “in writing” in these terms this includes email.
14.2 Any notice or other communication given under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
14.3 A notice or other communication is deemed to have been received: (a) if delivered personally, on signature of a delivery receipt; (b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or (c) if sent by email, at 9.00 am the next working day after transmission.
14.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
14.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
15. GENERAL
15.1 We may assign or transfer our rights and obligations under the Agreement to another entity but will always notify you in writing or by posting on this webpage if this happens. You may only assign or transfer your rights or your obligations under the Agreement to another person if we agree in writing.
15.2 We may make changes to these Buyer Terms after giving you 30 days notice via email. All changes shall be deemed to have been accepted by you and shall be effective on expiry of the 30 day notice period, unless you terminate the Agreement prior to the expiry of such 30 day notice period.
15.3 If we do not insist that you perform any of your obligations under the Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
15.4 Each paragraph of these Buyer Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
15.5 The Agreement is between you and us. No other person has any rights to enforce any of its terms.
15.6 The Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.