EnCirca, Inc (“EnCirca”) is committed to providing domain name and intellectual property internet escrow services through the EnCirca office and websites (EnCirca is referred to hereinafter as the “Company”, and intermittently referred to as “we” or “us”). When referenced in the applicable terms and conditions governing a particular EnCirca service (the “Terms of Use”), these Escrow Services Policies and Procedures (the “Escrow Policies”) are deemed part of such Terms of Use and subject to such Terms of Use. You will be deemed to have accepted these Escrow Policies when you accept the applicable Terms of Use and, in any event, when you participate in a Transaction.
a. General Provisions
Transactions performed by a Buyer and Seller on the Company site shall be governed by the Uniform Electronic Transactions Act and the Massachusetts Financial Code governing Escrow Regulations. A person or entity offering domain names and intellectual property for sale, and desiring to use the Company site in order to close such a sale, shall hereinafter be referred to as (“Seller”). A person or entity desiring to purchase domain names and intellectual property from a Seller, by use of the Company site for completing the purchase shall be referred to as (“Buyer”). The use of a Company site (by the Buyer and Seller) for purposes of effectuating an escrowed transfer of ownership of domain name and intellectual property shall be referred to as a (“Transaction”). The term “Close of Escrow” shall refer to the completion of the Transaction by Buyer and Seller. Funds deposited into escrow by the parties shall be referred to as “Escrow Funds”
b. Instructions and Deposit of Funds into Escrow
Once the Buyer and Seller have agreed to a price for a specific underlying Transaction, the detail screens and other directions provided by Company constitute the escrow instructions to govern the Transaction between the Buyer and Seller (the “Transaction Escrow Instructions”). Should it become necessary to add a supplemental instruction(s), or to make any addition to, deletion from, or alteration to the Transaction Escrow Instructions, all parties (Buyer, Seller and the Company) must execute (by digital signature, legal agreement, email correspondence or by another method mutually agreed upon by both parties) any supplemental instruction, addition, deletion or alteration thereto (collectively the “Supplemental Escrow Instruction(s)”). Company may accept instructions that are created, generated, sent, communicated, received or stored by electronic means or received via fax or email, and the parties to the Transaction hereby agree to conduct the Transaction electronically. The parties acknowledge that by entering into the Transaction Escrow Instructions, they are able to electronically receive the Transaction Escrow Instructions, including via the Company’s site, or by email, download the Transaction Escrow Instructions and print the Transaction Escrow Instructions. Should any of the parties be unable to receive the Transaction Escrow Instructions electronically, download or print the Transaction Escrow Instructions, Company shall email or fax a true and correct copy of the instructions to the person within 48 hours, upon request from the party.
Buyer agrees to deliver to Company or its designated escrow holder (“Escrow Holder”) any required down payment in the form of immediately available funds.
c. Domain Name(s)
In the event the personal property being transferred in this Transaction qualifies as a “domain name,” Escrow Holder is instructed to close only when the transfer of the domain name has been confirmed, and the Buyer has complied with its obligations and accepted the transfer. Seller shall transfer a domain name(s) to Buyer based upon information provided in Buyer’s profile. In general, Escrow Holder will provide its own domain escrow account at the ICANN Accredited Registrar EnCirca to help facilitate such transactions. However, if Seller is instructed to change ownership at a registrar other than EnCirca, Seller agrees to provide the username and password, if any, necessary to access and transfer the domain name prior to the release of funds. EnCirca is an ICANN Accredited Domain Name Registrar and may effect the change of ownership through the EnCirca escrow accounts located within the applicable registrars. Domain names generally move from the Seller’s account to this escrow account (where the Company becomes the legal owner and registrant) before funds are received into escrow from Buyer, although the domain name may also move after funds are received. For clarity, Buyer and Seller acknowledge that Company (or one if its affiliates) will become the legal owner and registrant of the domain name during the escrow process before reselling the domain name to the Buyer. Our escrow account for funds transfer will be provided through Citizen’s Bank or other reputable financial institutions.
d. Cancellation
Once escrow fees have been deposited, in the event that Seller fails to effect the change of ownership into escrow (or, if applicable, failed to change ownership at another registrar approved by Escrow Holder) within the required time period specified by Company, Buyer may request a refund of the deposited funds. The request for refund shall be submitted to escrow@EnCirca.com. Buyer hereby agrees that the entire escrow fee may be deducted from his/her/its refund regardless of any other previous arrangement for allocation of the escrow fee that may have been made between Buyer and Seller. If Buyer has failed to submit funds into escrow within the required time period upon which Buyer and Seller have mutually agreed and Seller has moved domain name into escrow or changed ownership at another registrar within that time period, and the domain name is being held in the Company escrow account, Seller will receive the domain back into their EnCirca/ EnCirca account and the transaction will be officially canceled, but such cancellation shall not limit any other rights or remedies of Company.
e. Dispute Resolution
In the event of any dispute, claim, question, disagreement or breach arising from or relating to the Company’s Terms of Use, these Escrow Policies or the Transaction Escrow Instructions, including but not limited to the manner in which Escrow Funds are disbursed, Buyer and Seller hereby agree to use their best efforts to consult and negotiate in good faith, to reach a solution satisfactory to all parties.
If the parties reach a resolution, Buyer and Seller agree to promptly notify the Company in writing of the terms and conditions thereof. If either Buyer or Seller determine that they are unable to reach a resolution, all parties agree that the dispute shall be submitted to arbitration in accordance with the applicable Terms of Use. In the event of a dispute, Buyer and Seller are aware that (in addition to and without limiting any of Company’s rights under the applicable Terms of Use) Company reserves the right to suspend its activities and take no action until such time as the dispute is resolved. Company or its affiliates shall have no responsibility and/or liability to initiate and/or continue to update either party regarding status. .
The Company reserves the right (within a sixty (60) day period following the Close of Escrow or cancellation of the Transaction) to institute binding arbitration amongst Buyer, Seller, and the Company by sending notification of such to each party. The Company may institute arbitration to resolve any dispute arising from a Transaction between Buyer and Seller and/or related to Buyer’s and Seller’s respective use of the Company site. Such arbitration will be conducted as specified in the applicable Terms of Use.
f. Time Limits
Should the Company site or our services be unavailable, or if Buyer and Seller jointly desire to extend any applicable timelines relating to the Transaction, then we may, but shall not be obligated to, extend such times as set forth in the Transaction Escrow Instructions at our sole and absolute discretion, and the Company will provide prompt email notification of any extension to both parties. With the exception of the Company’s extensions, the timelines relating to the Transaction as set forth herein, or in the applicable Terms of Use and the Transaction Escrow Instructions, shall not be modified.
If, for any reason, you are unable to gain access to the Company site to inform us of any acceptance, rejection or issues with change of ownership of domain names, then you must notify the Company within the applicable time limit either by calling us at (781) 942-9975 or by emailing us at escrow@EnCirca.com.
g. Timing of Payment
Without limiting (or extending the deadline of) any payment obligations set forth in the applicable Terms of Use, all Escrow Funds payable by Buyer shall be paid as soon as possible following the earliest of either Buyer’s acceptance, Seller’s acceptance, or the resolution of a dispute. In the event that Buyer makes any form of overpayment, we shall reimburse the overpayment upon the Close of Escrow. In the event that Buyer or Seller is overpaid for any reason, Buyer and Seller agree to promptly return the funds to the Company. The payee agrees to pay any postage costs and/or wire or processing fees. Depending upon the method of payment, Company reserves the right pass on additional handling and processing fees to each party. In addition, Buyer and Seller shall also hold the Company harmless from any loss that may arise due to currency conversion.
h. Method of Payment
Electronic bank wire will be the method used to receive funds associated with this transaction. All escrow fund disbursements shall be made to Seller or Buyer (in the case of a refund), by mailing an account check, PayPal payment, or Money Wire, unless otherwise requested by the payee. Both Buyer and Seller understand that there are handling and processing fees due to Escrow when funds are processed as payment for domain name transactions.
i. Finality of Payment
Once the Company receives the final payment and the domain name into escrow, the escrow fees shall be disbursed to the Seller, minus commissions, processing and handling fees, etc. Upon any payment or other disposition of the Escrow Funds, the Transaction shall be deemed closed and final with no further obligation on the part of Buyer, Seller, or the Company.
j. Escrow Funds
In accordance with the Company’s applicable Terms of Use, and in accordance with Massachusetts Law, all Escrow Funds shall be deposited into the EnCirca’s account through Citizen’s Bank (or other bank) which is insured by the Federal Deposit Insurance Corporation (the “FDIC”). Buyer and Seller acknowledge that the maintenance of such escrow account may result in the Company and/or affiliates being provided with certain bank services, accommodations, interest payments, or other benefits by the bank. All such services, accommodations, interest payments, and other benefits shall accrue to the Company’s account, and the Company and its affiliates shall have no obligation to account to Buyer or Seller (or any other party to any escrow) created hereunder for the value of such services, accommodations or other benefits. Escrow Funds do not earn interest for Buyer or Seller.
k. Unclaimed Funds
To the extent permitted by law, we are entitled to all funds considered to be unclaimed and held in escrow for a period of two (2) years.
l. Communication Between Parties
Unless otherwise agreed upon by all parties, all communication from the Company to Buyer and Seller will be either by the Company site (via the “My Account” area or similar area used for such communications) or by email, fax, and/or by phone to the last address or phone number provided in the user profile. Buyer and Seller agree to use the Company’s site to verify the accuracy of all email communications from the Company. If you are unable to use the Company’s site, you may contact us by telephone at (781) 942-9975 Monday through Friday, during the hours of 8:30 a.m. to 6 p.m., Eastern Standard Time, to make arrangements for alternative methods of signature and acknowledgment of the Transaction Escrow Instructions. Buyer, Seller and the Company shall only be required to agree to employ alternative communication methods which are reasonable accommodations under the circumstances of the Transaction.
m. Our Rights
If we believe in our sole, good faith opinion that the Transaction violates any of these terms or the Terms of Use, or the Transaction violates or is likely to violate any applicable law, rule or regulation, then we may (without limiting our other rights or remedies) terminate the Transaction and seek court-ordered protection of the Escrow Funds in a court of competent jurisdiction by any court-ordered means, including but not limited to, an impound account and/or institution of a receiver.
If any dispute arises between the Buyer and Seller, and such dispute is not resolved within a reasonable time, or if any conflicting demand shall be made upon the Company, the Company shall not be required to take any action until such time as the Company receives written instructions signed by all parties.
n. Authority
The natural persons who agrees on behalf of the Buyer & Seller certifies that Buyer and/or Seller is at least eighteen years of age and that he or she has read and agrees to be bound by the terms of these Escrow Policies, the Transaction Escrow Instructions and the applicable Terms of Use. If the natural person is acting on behalf of a corporation, limited liability company, partnership, trust or business entity of any type, by agreeing, he or she represent that he or she has the authority to bind said entity.
o. Services Not Included/Disclaimer
The Buyer and Seller understand that the above escrow services DO NOT include any representation of warranty, either expressed or implied, and that the Company assumes no responsibility for the condition of the ownership, sufficiency of instruments conveying ownership, or agreements therefore; payment or reporting of sales tax or other taxes, utilities, future performances of Buyer and Seller, transfer of any insurance policies or warranties, or any other matters related to domain name or this escrow NOT specifically included herein shall be considered outside of escrow and neither the Company nor the Company’s affiliates shall have any further responsibility and/or liability for same. The Company undertakes to perform such duties and only such duties as are specifically set forth in these Escrow Policies and/or the applicable Terms of Use, and no implied covenants or obligations shall be deemed to apply to the Company. The Company may act upon any instrument, certificate, opinion or other writing believed by it in good faith to be genuine, and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this these Escrow Policies or the Terms of Use. The Company may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. Anything in these Escrow Policies to the contrary notwithstanding, in no event shall the Company be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits). The limitations of liability herein are in addition to and not in lieu of any further limitations of liability set forth in the applicable Terms of Use.
p. Indemnification
Buyer and Seller hereby agree severally and not jointly (one-half to be borne by Buyer and one-half to be borne by the Seller) to indemnify the Company for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Company, arising out of or in connection with carrying out its duties hereunder and accepting the Escrow Funds, including the costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder (including reasonable fees, expenses and disbursements of its counsel). The foregoing indemnities shall survive the resignation of Company or the termination of the Transaction and are in addition to and not in lieu of any further indemnities set forth in the applicable Terms of Use.
q. Entire Agreement
In case of conflict between any of the terms of these Escrow Policies and our Terms of Use, these Escrow Policies shall control. Any agreement between Buyer and Seller that is not reflected in either the Transaction Escrow Instructions, these Escrow Policies or the Term of Use, in no way binds the Company or any of the Company’s affiliates.
r. Severability; Headings
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Headings are for reference purposes only and in no way define, limit, construe or describe the cope or extent of such section.
s. Escrow Fees
Funds will be deducted by the Company from funds received by the Buyer prior to disbursement to the Seller, with a $100.00 minimum fee. In addition, costs for accepting and receiving bank wires may apply, which will not exceed $30 per wire.
| Sales Price (US$) | Escrow Fee (US$) | |
| $1.00-$50,000 | 0.03 of the total | |
| $50,000-$100,000 | 0.02 of the total | |
| $100,000+ | 0.01 of the total |
t. Initiate escrow process
Seller should provide contact details for both Seller and Buyer. Fax to +1.781.823.8911.
Domain Name(s): _______________________
_______________________
_______________________
_______________________
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| Seller’s Name: _______________________ | Buyer’s Name: _______________________ | |
| Seller’s Email: _______________________ | Buyer’s Email: _______________________ | |
| Seller’s Telephone: _______________________ | Buyer’s Telephone: _______________________ | |
| Seller’s Signature: _______________________ | Buyer’s Signature: _______________________ |