ICA Bronze member 2017

General Terms and Conditions (GT&C)


These are the General Terms and Conditions of Sombrero.de GmbH (last update 1 July 2014).
We point out that the current version of the General Terms and Conditions is permanently available on the Internet at https://www.sombrero.de. Apart from that, the GT&C can be printed out at any time via the browser (“File” menu – “Print” command) or copied to your own hard disk or any other storage medium (“File” menu – “Save” command).
As user, you are hereby explicitly requested to inspect, print out and copy these GT&C.
If you use Sombrero.de as consumer, the following applies:


Instruction on the Right of Revocation


Right of Revocation


You have the right to revoke this contract within fourteen days without having to specify any reasons. The revocation period is fourteen days from the day of contract conclusion.
To exercise your right of revocation, you have to inform us (Sombrero.de GmbH, Theresienstraße 80, 50931 Cologne, phone: +49 221 16847942, fax: +49 221 16847943, e-mail: info@sombrero.de) about your decision to revoke this contract by means of an unambiguous declaration (e.g. in a letter sent by mail, fax or e-mail). You can use the enclosed sample revocation form, this is, however, not mandatory.
To keep the revocation period, it is sufficient to post the notification regarding the exercise of your right of revocation before expiry of the revocation period.


Consequences of the Revocation


If you revoke this contract, we shall pay back all payments received from you including the delivery costs (except for the additional costs resulting from the fact that you selected a different delivery type than the cheap standard delivery offered by us) immediately and within fourteen days from the day on which we receive the notification regarding your revocation of this contract at the latest. Unless explicitly agreed otherwise, we will use the same means of payment for this repayment that you used in the original transaction; we will in no case charge any fees due to this repayment.
If you wanted the service to start during the revocation period, you have to pay us a reasonable amount corresponding to the share of the services already rendered until the time at which you informed us about the exercise of your right of revocation regarding this contract as compared to the entire scope of services intended in the contract.


1. Registration


1.1 Users


Persons who make use of services at Sombrero.de (hereinafter also referred to as Sombrero) shall hereinafter be referred to as “Users”.


1.2 Registration and User Account


(1) The use of the services of Sombrero.de requires prior registration. There is no right to such registration. Registration is effected by opening a user account (= account). One prerequisite for the opening of the user account is the approval of these GT&C and the separate privacy policy as well as the subsequent confirmation of the e-mail address to be specified by means of an e-mail automatically sent to the User using the link contained therein.
If the independent use of the escrow service (see Fehler: Referenz nicht gefunden) is made use of, the same data has to be specified as when creating a user account. A regular user account is, however, not created. Approval of these GT&C is also necessary in order to use the independent escrow service.
(2) The registration brings about a contract regarding the use of the Sombrero website (hereinafter “User Agreement”) between Sombrero and the User. Only legal entities and individuals with unlimited legal capacity are allowed to register; so registration is particularly prohibited to minors.
(3) The data requested by Sombrero during the registration must be specified completely and correctly. This data includes e.g. first and last name, the current address (no P.O. boxes or addresses of office service providers) and telephone number, a valid e-mail address as well as the company name and information on the value added tax liability (VAT ID number), if applicable. Value added telecom service telephone numbers must not be indicated.
When selling domains, bank details have to be specified so that Sombrero is able to transfer the sales price to the seller.
(4) Legal entities may only be registered by individuals with power of representation whose name has to be specified. Holders of a user account can only be legal entities or natural individuals (i.e. no couples, families). If the specified data changes after the registration, the User is obliged to immediately correct the details in their user account.
(5) Sombrero does not accept any guarantee for the correctness of the user data; there is no verification.
(6) Users must keep their password secret and carefully secure access to their user account. Users are obliged to immediately inform Sombrero.de GmbH if there is any indication that a user account has been misused by third parties.
(7) Users are generally liable for all activities completed using their user account. If the customer is not responsible for the misuse of their user account as there is no violation of an existing duty of care, the customer shall not be liable.


1.3 User Name


During registration, the User selects a user name and specifies their e-mail address and a password. The e-mail address is used for logging into the user account.


1.4 User Accounts


(1) Only one user account may be opened per natural or legal person. The misuse of user accounts particularly when placing bids within the scope of sales negotiations is prohibited. User accounts cannot be transferred. Misuse is particularly at hand if bids are made for a domain by the holder of a user account or a third party commissioned by them using a second account in order to thus influence the price for this domain.


2. Service Description


2.1 Sombrero’s Mode of Operation


(1) Sombrero offers its Users a platform for trading Internet domains (= domain names = domains = second-level domains). Users may search the database for the latter.
(2) For domain names entered into the Sombrero database, Users can place bids or make use of the direct purchase option. The relationship between the Users and Sombrero is determined according to these GT&C.
(3) Users may offer domains for sale either using the direct purchase option (immediate purchase) at independently determined prices or within the scope of free price negotiations.
(4) Sombrero offers a escrow service for domains (see point 8: Escrow Service).


2.2 Scope of the Services


(1) Sombrero exclusively offers a technical platform for the possibilities to trade in domains specified in these GT&C as well as a escrow service to perform the concluded contracts (see Fehler: Referenz nicht gefunden). There are no more services, particularly no form of legal consulting and/or the acceptance of guarantees for the legality of the traded domains.
(2) The general success of published offers as well as the amount of the sales price that might be achieved cannot be guaranteed by Sombrero.


2.3 Technical Limitations


(1) The User shall only be entitled to use the Sombrero website and its functions within the scope of the current status of the website. If technical measures are completed serving the proper or improved rendering of the Sombrero services (maintenance works), this may lead to temporary limitations of the Sombrero offer. Sombrero reserves the right to extend negotiations ending during the maintenance works by the duration of the maintenance works.
(2) Sombrero does not accept any guarantee for the technical availability exceeding that of its own hosting provider. The network availability of our provider is guaranteed for 99% on the annual average.


2.4 Contract Duration


The concluded User Agreement may be terminated by both parties at any time. As notice of termination on the part of User it shall be enough to send a written notice to Sombrero.de GmbH, Theresienstr. 80, 50931 Cologne or to write an e-mail to Info(at)sombrero.de. Select “Questions on the GT&C and the Privacy Policy” as object.


3. User’s Obligations


3.1 Impairment/Bypassing of the Orderly System Function


(1) The use of software influencing the process of the negotiation specified by Sombrero is prohibited. The User is moreover not allowed to use mechanisms, software or other scripts in connection with the use of the Sombrero website that might impair its function.
(2) Any behaviour that might result in an unreasonable or excessive load on the Sombrero website infrastructure or that is suitable to impair the contents generated by Sombrero or to interfere with the Sombrero website in any other way is prohibited.


3.2 Proper Course of the Negotiation


Actions on the part of User or any other person commissioned by them influencing the course of the negotiations in any unfair manner are prohibited.


3.3 Non-compliance


If there is concrete indication suggesting non-compliance with these GT&C or applicable law by the User, Sombrero is entitled to delete the offer concerned and/or to block the user account on a temporary or permanent basis. Any more far-reaching claims to damages shall remain unaffected. In case of blockage, the blocked User shall not be entitled to use Sombrero with other accounts or to re-register.


4. Contract Conclusion on Sombrero.de


4.1 Domain Trading with Price Negotiation


(1) Users may buy or sell domains within the scope of free price negotiations.
(2) Users may determine minimum prices for domains offered for sale if there are currently no price negotiations for this domain.
(3) Placed bids will be binding for 7 days. Within this period, the other party may accept the offer and thus confirm the contract conclusion.
(4) Contract conclusion between the Users comes about if one party accepts the latest offer of the other party; to do so, the relevant User has to click the “Accept offer” pushbutton.
(5) All successful negotiations will end up in the Sombrero escrow service in which the transfer of the purchase price and the domain are procured by Sombrero (see point 8).


4.2 Direct Purchase Offers (Buy Now)


(1) Use of the fixed price format (Buy now) is no offer in the form of negotiations but will immediately lead to the contract conclusion according to paragraph 2.
(2) Publication of a domain as fixed price offer (Buy now) is a binding offer to sell this domain at a fixed price to the User accepting the offer and paying the fixed price. Contract conclusion on the acquisition of the domain comes about as soon as the User clicks the “Buy now” pushbutton and confirms the process by means of their password unless they have logged in before. The duration of fixed price offers is only limited by the contract conclusion.
(3) All direct purchases will end up in the Sombrero escrow service in which the transfer of the purchase price and the domain are procured by Sombrero (see point 8).


4.3 Application of Conditions of the Top-Level Domain Operators


Regarding the trade in and the transfer of domains, Users are hereby informed about the necessity to comply with the applicable domain guidelines of DENIC (.de domains), ICANN (.com, .net, .info, .org), SIDN (.nl domains) and for other top-level domains (TLDs) with the relevant conditions of the relevant operators. Non-compliance with the relevant domain guidelines or domain conditions may lead to loss of the domain.


4.4 Forwarding Data to Other Users


In case of contract conclusion between Users, Sombrero will provide the latter with the data for mutual contacting if this is necessary to process the domain transfer and the sale or desired by both parties.


4.5 End Prices


All prices for domains traded on the Sombrero website are end prices including value added taxes that might incur and other price components.


4.6 Currency


Subject to any other specification in the offer conditions, the currency valid for domains traded via Sombrero is Euro (EUR, €).
Alternatively, trading in US Dollar (USD, US$) is also possible. Payment of the purchase price by Sombrero in USD is, however, only possible if payment by the purchaser is also effected in USD.


4.7 Authorisation of Sombrero by the User


In case of successful price negotiations or in case of direct purchase, User authorises Sombrero to accept the purchase price within the scope of the escrow service from the purchaser and to pay it to the seller and to thus conclude the sale in the name of the parties. The purchase price will be paid according to the conditions described in point 8.


5. Fees


User accounts may be created and domains may be published for sale free of charge.
Sombrero charges fees in the form of commission according to the fee table which is enclosed to these GT&C and can be called at https://www.sombrero.de/about-us/faq. Fees are charged if a domain is sold and for the use of the independent escrow service.
The incurring fees may either be paid by one of the two parties involved or by both parties, in equal shares. For Buy now trades (Direct Purchase Offers) the seller always pays the fees.
There is a minimum fee of € 40,- (US$ 50,-) for all domain sales and for the usage of the standalone escrow service.


Fees for Domain sales

Domain Price [Euro] Fee [% of sales price]
1 - 24.999 10 %
25.000 - 99.999 8 %
100.000 and more 5 %

 

Domain Price [US-Dollar] Fee [% of sales price]
1 - 29.999 10 %
30.000 - 124.999 8 %
125.000 and more 5 %



Fees for standalone usage of Escrow Service

 

Domain Price [Euro] Fee [% of sales price]
1 - 24.999 3 %
25.000 and more 2 %

 

Domain Price [US-Dollar] Fee [% of sales price]
1 - 29.999 3 %
30.000 and more 2 %

 


6. Liability


6.1 Peculiarities of the Domain Trade


The User is aware of the special risks involved in domain trading. They include e.g. the violation of third-party labelling rights and the violation of provisions under competition law. This may result in warnings and claims for injunctive relief and damages of third parties against purchaser and seller that may entail considerable costs.


6.2 Release from Liability


(1) Sombrero shall only be liable for infringements, particularly copyright infringements, violations of good morals, and trademark infringements in negotiations operated by Users within the scope of reasonable inspection duties for providers of a technical platform used for domain trading. That means that Sombrero must take immediate action, particularly in case of knowledge of any infringement at the time of the negotiation as well as in case of subsequent knowledge. There is no more far-reaching responsibility and liability particularly no general monitoring duty on the part of Sombrero. In case of indication of an infringement, Sombrero is entitled to block the sales offer concerned until clarification.
(2) The User releases Sombrero from all third-party compensation claims based on the registration or sale of a domain by the User and will particularly bear the costs that Sombrero might incur in case of a legal dispute up to the legal amount. In case of third-party claims, the User is obliged to immediately provide Sombrero with all the correct and complete information necessary to verify the claims and for a defence.
(3) The domain vendors alone are responsible for compliance with the legal regulations (such as the regulations regarding distance selling). As platform supplier, Sombrero only manages automated processes; there is no verification of the purchase negotiations which is not part of Sombrero’s duties either.
(4) Sombrero does not accept any responsibility for the proper implementation of the negotiations by their Users. Any liability on the part of Sombrero for damage resulting from the failure or partial failure of the domain transfer is excluded.


6.3 General Limitation of Liability


(1) Sombrero shall be liable for intention and gross negligence without limitation, for slight negligence, however, only in case of violation of essential contractual obligations. The liability in case of violation of such essential contractual obligations is limited to the foreseeable damage typical of the contract the causation of which Sombrero had to anticipate upon contract conclusion due to the facts known at that time. Claims for damages due to injuries to life, limb or health or under the Product Liability Act shall also remain unaffected. The same applies to violations of obligations by our vicarious agents.
(2) If a User is a company, the following shall apply, deviating from paragraph 1:
Sombrero shall only be liable for vicarious agents in case of intent; apart from that, if they violate essential contractual obligations or cardinal duties. Except for intent and gross negligence by Sombrero, their representatives and executives, the liability shall be limited to the damage typically foreseeable upon contract conclusion.


7. Publication Right of Sombrero.de GmbH


(1) Sombrero is entitled to publish sold domain names as well as the obtained purchase price for reference purposes on their website or in other places. The publication of the user data (name, e-mail) is explicitly excluded.
(2) This shall not apply if a User concerned objects the publication. You can in each case object the publication in every domain purchase or sale by clicking the offered option (“opt-out”). If one of the two parties makes use of this option, the domain sale will not be published.


8. Escrow Service


8.1. Concept of the Escrow Service


(1) The escrow service offers Users and other interested parties the possibility to have the processing of the domain sale completed by Sombrero. This is to ensure the smoothest and safest transfer of purchase price and domain for the parties possible. Sombrero’s services are limited to the safekeeping of the purchase price in trust until successfully completed transfer of the relevant domain and its subsequent forwarding to the seller. The drafting of contracts as well as any legal consulting on the part of Sombrero are not the subject matter of this contract.
(2) No interests will be paid for amounts paid to the trust account. We offer a escrow service using our account with Postbank AG which has been especially set-up for this purpose. The account details are made available to the purchaser per e-mail and in their user account.


8.2. Remuneration and Possible Additional Costs for Seller and Purchaser


(1) The amount of the remuneration for the transaction and escrow service results from the price list enclosed to these T&C (see section 5) which can be called at https://www.sombrero.de/about-us/faq. The remuneration for the escrow service shall either be paid by purchaser or by seller, or both parties share the fees at equal parts.
(2) The transfer of a domain from the seller to the purchaser may – depending on the provider concerned – entail additional costs (e.g. for the registration of the purchased domain or an extension of the registration before a transfer) which shall be directly paid by the User to the provider and are not covered by the remuneration for the escrow service.
(3) The seller shall make sure that the traded domain will not forfeit during or shortly after contract conclusion (at least 30 days). In this connection, the so-called expiration date of the domain is decisive. If necessary, seller shall extend the domain registration before the sale.


8.3. Mutual Performance / Obligations to Cooperate of the Parties


(1) After contract conclusion, purchaser will be asked by Sombrero to transfer the amount to be paid to the Sombrero trust account. As soon as the trust account has been credited with the complete amount, Sombrero will ask the seller to transfer the domain to the purchaser. The parties are obliged to assist each other and Sombrero to the necessary extent.
(2) Sombrero offers the seller of a domain the option to specify the so-called auth code (transfer code) upon contract conclusion. This serves the faster processing of the transaction. The code will be made available to the purchaser after receipt of the purchase amount via their user account and/or per e-mail. The transfer code shall be kept carefully and safely and protected against third-party access. Users are responsible for the safety of their user account, secrecy of the access data and access to their e-mail account linked to the user account. Sombrero shall particularly not be liable in case the transfer code is disclosed to third parties due to the User’s fault and consequently, the domain is lost.


8.4. Verification of the Successful Transfer and Payment of the Purchase Price to Seller


(1) After successful transfer of the domain, the purchase price will be paid out to the seller from the trust account.
(2) Successful transfer is at hand if the registration of the purchaser in the WHOIS database of the competent registry has been completed and apart from that, purchaser is able to technically access the domain.
(3) Purchaser must confirm the successful transfer vis-à-vis Sombrero by clicking the corresponding option in their user account.
(4) If the domain transfer is completed, however not confirmed by the purchaser within a period of two weeks despite reminder by Sombrero, Sombrero reserves the right to evaluate the successful domain transfer to the purchaser to the best of their knowledge and belief by checking the Whois entry as well as technical documents/e-mails of the registrars involved and to pay the purchase price to the seller in case of a positive result.


8.5. Transfer Failure


(1) If purchaser properly pays the price to the Sombrero trust account and seller does not complete the transfer, even after reminder by Sombrero, the order will be cancelled by Sombrero after e-mail request to both parties and their consent and the paid money will be paid back to the purchaser. If there is no reaction to this request, the consent shall be regarded as having been granted after expiry of two weeks. Seller and purchaser will be informed about the cancelation per e-mail.


9. Final Provisions


9.1 Applicable Law, Place of Performance and Place of Jurisdiction


(1) The law of the Federal Republic of Germany shall apply; application of the UN Convention on the International Sale of Goods is excluded.
(2) The place of performance is Cologne.
(3) If after contract conclusion, User relocates their place of residence or habitual abode to a place outside the scope of the Federal Republic of Germany, the registered office (Cologne) shall be the place of jurisdiction. This shall also apply if the place of residence or habitual abode of the User is not known at the time the claim is raised.
(4) If the User is a merchant in the sense of the German Commercial Code, a special fund under public law or a legal entity under public law, Cologne shall be the exclusive place of jurisdiction for all disputes arising out of the User Agreement and these GT&C; Sombrero is, however, entitled to also sue the User in front of the court of their place of residence.


9.2. Changes in the GT&C


Changes in these GT&C and the related concluded User Agreement shall be made in writing. Sombrero reserves the right to amend or change the present GT&C to a reasonable extent with the User’s consent at any time and without specifying any reasons. In this case, the User shall be separately informed and given the possibility to object the changes within a period of four weeks. If there is no reaction within this period, consent to the changes shall be regarded as having been granted. If User objects within the period specified above, Sombrero shall be entitled to terminate the contractual relationship and to close the user account.