Domaincheck Terms and Conditions
SECTION A - INTERPRETATION AND GENERAL
The following terms and conditions apply to the Services.
1 GENERAL
1.1 Definitions
In these Conditions, the following terms shall have the following meanings:
"Charges" our charges in force from time to time;
"Conditions" these terms and conditions;
"Content" all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in and relation to the Website which you supply to us or which you add to the Website at a later date;
"Downtime" any service interruption in the availability to you or visitors of the Website;
"Hosting Services" web hosting services as detailed in Section C of these Conditions;
"Intellectual Property Rights" all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, knowhow, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off;
"Mailbox" a Domaincheck POP3/IMAP e-mail mailbox;
"Mailbox Services" the e-mail services as detailed in Section D of these Conditions;
"Order" your application for the Services;
"Order Form" the order form as displayed on our website or otherwise;
"Overusage Charges" charges which you will be obliged to pay to us if you exceed your monthly bandwidth allowance;
"Price List" our list of prices and fees in force from time to time;
"Relevant Naming Authority" Nominet UK for UK domain names, ICANN for international domain names and CentralNic for global domain names;
"Server" a server administrated by us;
"Services" the services set out in Sections B, C and D;
"Software" the software and related documentation owned by or licensed to us;
"Website" the website that is to be hosted by us on your behalf;
"we" "us" Zebra Electronics Limited (registered in England and Wales with company number 3033478) trading as Domaincheck of 65 Westgate Road, Newcastle upon Tyne, NE1 1SG; and
"you" "your" the customer applying for the Services.
1.2 Waiver
Delay in exercising, or a failure to exercise, any right or remedy in connection with these Conditions shall not operate as a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy, or the exercise of any other right or remedy. A waiver of a breach of these Conditions shall not constitute a waiver of any subsequent breach.
1.3 Variation
No variation of these Conditions shall be effective unless it is in writing and executed by or on behalf of each of the parties to these Conditions.
1.4 Relationship Between Parties
Nothing in these Conditions shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.
1.5 Data Protection
We will comply with all relevant data protection legislation in relation to the personal details that you provide to us on the Order Form or otherwise. We will only use your personal data (as defined by the Data Protection Act 1998 (as amended)) for the purposes of providing the Services. We reserve the right to disclose your personal data where we are required by law to do so.
1.6 The Contracts (Rights of Third Parties) Act 1999
No person who is not a party to these Conditions is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
1.7 Severance
The parties intend each provision of these Conditions to be severable and distinct from the others. If a provision of these Conditions is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of these Conditions shall not be affected.
1.8 Entire Agreement
These Conditions set out the entire agreement and understanding between the parties relating to the matters contemplated by these Conditions and all conditions, terms and warranties, whether express or implied, are excluded if they are not expressly set out in these Conditions.
1.9 Assignment
These Conditions shall be personal to you. You shall not assign, novate, subcontract or otherwise dispose of these Conditions or any part thereof without our prior written consent which may be withheld at our discretion. We shall be entitled to assign, novate, subcontract or otherwise dispose of these Conditions or any part thereof.
1.10 Complaints
We will try to resolve any disagreements quickly and efficiently. If you are not happy with the service that you have received please contact Annabel Cornish at Domaincheck, Adamson House, 65 Westgate Road, Newcastle upon Tyne NE1 6EF.
1.11 Applicable Law and Jurisdiction
These Conditions shall be interpreted in accordance with English law. You agree to irrevocably submit to the exclusive jurisdiction of the English Courts in relation to all matters arising out of or in connection with these Conditions.
SECTION B - DOMAIN NAMES
The following terms and conditions apply to the domain name registration service.
1 SERVICES
1.1 We agree to use our reasonable endeavours to register the domain names requested by you on the Order Form with the Relevant Naming Authority.
1.2 Upon receipt of the Order Form, we shall submit the information to the Relevant Naming Authority for approval and processing.
1.3 You acknowledge that the registration and use of domain names is subject to the terms and conditions of the Relevant Naming Authority and accordingly agree to be bound by them.
1.4 The registration and use of UK domain names is governed by Nominet UK. The registration and use of international domain names (.com, .net, .org, .biz, .info and .name) which are governed by ICANN is performed through us in conjunction with e-Nom. The registration and use of global domain names is governed by CentralNic.
1.5 In submitting an Order you will be deemed to have read, understood and accepted the terms and conditions of the Relevant Naming Authority and the relevant registration agreements which can be reached via the following links:
Nominet: http://www.nic.uk/disputes/terms
eNom: http://www.enom.com/terms/agreement.asp
CentralNic: http://www.centralnic.com/support/terms/domains
1.6 We do not represent, warrant or guarantee that any domain name requested by you is capable of registration or will be registered. You should not assume that the requested domain name has been registered until you receive written confirmation that it has been approved by and registered with the Relevant Naming Authority.
2 REFUSED REGISTRATIONS
2.1 We have the right to refuse to apply to register any domain name which is considered by us at our sole discretion to be of an unlawful, abusive, obscene, sexual, racist, homophobic, malicious, defamatory or otherwise offensive nature or for any other reason whatsoever.
2.2 In the event that:
2.2.1 a domain name is not successfully registered with the Relevant Naming Authority; or
2.2.2 we refuse to accept your Order for any reason, you shall be entitled to a refund of any Charges that you have paid.
3 PRICE AND PAYMENT
3.1 In consideration for the services set out in Clause 1 (Services) of Section B, you agree to pay the Charges set out in the Price List for the initial registration of the domain name and any subsequent renewals (if applicable).
3.2 All Charges are exclusive of VAT.
3.3 We shall not commence applying to register the domain name requested unless and until we receive payment in full of the Charges.
3.4 Subject to Clause 2.2 (Refused Registrations) of Section B, all fees are nonrefundable, in whole or in part. We shall have no liability to refund you if your domain name is for any reason suspended, cancelled or transferred before the end of the registration term.
3.5 In entering into this agreement with us, you acknowledge that performance of the agreement will begin immediately as soon as payment is received and that you are hereby forfeiting your right to cancel the agreement under the Consumer Protection (Distance Selling) Regulations 2000 (as amended).
4 CUSTOMER OBLIGATIONS
4.1 You agree that you will not use any domain name registered by us on your behalf to communicate, reproduce, transmit, store or knowingly receive any material that is unlawful, offensive, abusive, indecent, defamatory, obscene, menacing, in breach of confidence and/or which infringes the Intellectual Property Rights of any third party.
4.2 You warrant that:
4.2.1 all information provided by you to us in connection with your domain name registration is accurate, true and correct; and
4.2.2 neither the registration of the domain name nor the manner it which it is directly or indirectly used infringes any third party Intellectual Property Rights.
4.3 You agree and acknowledge that we do not represent, warrant or guarantee that any domain name which we register on your behalf and/or the use of that domain name will not infringe any third party Intellectual Property Rights.
5 TRANSFER
5.1 You may not transfer your domain name registration to another domain name registrar during the first sixty (60) days from the effective date of your initial domain registration with us.
5.2 Subject to Clause 5.1 (Transfer) of Section B, should you wish to transfer your domain name registration to another domain name registrar you agree to provide us with written authorisation for the transfer and to pay any fees that may be chargeable by us in connection with such a transfer. We reserve the right to refuse to transfer your domain name registration unless and until we receive full payment of all sums which you owe to us.
6 INDEMNITY
You agree to indemnify us and keep us indemnified from and against any and all loss, damage, liability or claim and all costs and expenses incurred by us as a result of a breach of these terms and conditions by you, your employees, agents and contractors.
7 LIMITATION OF LIABILITY
7.1 Nothing in these Conditions shall exclude or limit the liability of either party or any of its officers, employees or agents in respect of:
7.1.1 death or personal injury caused by its negligence; or
7.1.2 any fraudulent misrepresentation which it may have made.
7.2 You agree and acknowledge that we shall not be liable under these Conditions for any costs, claims, damages or expenses, whether arising out of any tortious act or omission, any breach of contract or statutory duty:
7.2.1 of an indirect or consequential nature; or
7.2.2 that are calculated by reference to profits, whether direct or indirect, income, production of accruals, loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
7.3 We shall not, under any circumstances, be liable for any errors, omissions or other actions by the Relevant Naming Authority arising out of or relating to your domain name registration and the receipt of or your failure to receive a domain name registration.
7.4 Our maximum liability to you for the registration of a domain name shall not exceed the total amount paid by you to us for the registration of the domain name.
7.5 The limitations in this Clause 7 (Limitation of Liability) of Section B apply regardless of the form of action whether in contract or in tort including negligence.
8 TERMINATION
8.1 We may terminate these Conditions, without prejudice to any other rights or remedies available to us under or in connection with these Conditions, with immediate effect by written notice:
8.1.1 if you commit a material breach of your obligations under these Conditions; or
8.1.2 if you suspend, or threaten to suspend, payment of your debts or you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
8.1.3 if you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
8.1.4 if you are the subject of a bankruptcy petition or order; or
8.1.5 if you become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffer an administrative receiver to be appointed in relation to the whole or any part of your assets or make a composition or arrangement with your creditors or suffers any judgement to be executed in relation to any of your property or assets.
8.2 You may terminate these Conditions, without prejudice to any other rights or remedies available to you under or in connection with these Conditions, on 30 days written notice:
8.2.1 if we commit a material breach of our obligations under these Conditions and, in the case of a breach capable of remedy, it has not been remedied by us within 30 days following receipt of written notice by you specifying the breach; or
8.2.2 if we become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffer an administrative receiver to be appointed in relation to the whole or any part of our assets or make a composition or arrangement with our creditors or suffers any judgement to be executed in relation to any of our property or assets.
8.3 For the avoidance of doubt, we shall not be liable to refund you with any Charges paid to us by you during the term of these Conditions if these Conditions are terminated for any reason by either party.
SECTION C - WEB HOSTING
The following terms and conditions apply to the Web Hosting Service.
1 SERVICES
We agree to provide you with Hosting Services.
2 CHARGES
2.1 In consideration for the Hosting Services, you agree to pay the Charges within 30 days of the date of the invoice. Time of payment shall be of the essence.
2.2 All Charges in respect of the Hosting Services will be invoiced and payable annually in advance. If additional charges are due under these terms and conditions then they shall be payable within 30 days after the date of our invoice.
2.3 All Charges are exclusive of VAT.
2.4 We may charge you interest in respect of late payment for any sum due to us under these terms and conditions at a rate of 4% above the base rate from time to time of Barclays Bank PLC from the due date of payment until payment is received.
2.5 If you fail to pay the Charges on the due date then, without prejudice to any of our other rights and remedies, we may suspend or cancel performance of the Hosting Services.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 You retain all Intellectual Property Rights in the Content and grant us a royaltyfree, non-exclusive licence to use such Intellectual Property Rights to the extent required to perform our obligations pursuant to these Conditions.
3.2 You shall indemnify us against all costs, damages, losses and expenses arising as a result of any action or claim that the Content infringes the Intellectual Property Rights of any third party.
3.3 Except as expressly set out in the Conditions, we do not transfer or grant to you any right, title or interest in the Intellectual Property Rights in the Software.
3.4 You warrant to us that our use of the Content in accordance with these Conditions will not infringe the Intellectual Property Rights of any third party and that you have the right, power and authority to licence the Content to us as set out in Clause 3.1 (Intellectual Property Rights) of Section C.
4 SITE CONTENT
4.1 You warrant that you will not distribute, communicate, reproduce, transmit, store or in the Content on the Website any material or information that:
4.1.1 infringes any third party's Intellectual Property Rights;
4.1.2 is in breach of any law, statute or regulation;
4.1.3 is defamatory, libellous, unlawfully threatening, abusive or harassing;
4.1.4 is unlawful, harmful, malicious, profane;
4.1.5 encourages a criminal offence;
4.1.6 is obscene, pornographic or indecent; or
4.1.7 contains any viruses or other computer programmes intending to damage, detrimentally interfere with, surreptitiously intercept or expropriate any person or information, (together, "Inappropriate Content").
4.2 You acknowledge that we have no control over any Content placed on the Website and we do not purport to monitor the Content of the Website. We reserve the right to remove Content from the Website when we determine at our sole discretion that it is Inappropriate Content. We shall use our reasonable endeavours to notify you if we become aware of any allegation as to Inappropriate Content on the Website.
4.3 For the avoidance of doubt, we will have no liability for the content of any communications transmitted by virtue of the Hosting Services.
4.4 You indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Content or material(s) posted, communicated, reproduced, transmitted or linked to the Website constitutes Inappropriate Content.
5 SERVICE AVAILABILITY
5.1 We shall use our reasonable endeavours to make the Hosting Services available at all times but we shall not in any circumstances be liable for any interruptions to the Hosting Services or Downtime of the Hosting Services.
5.2 We reserve the right to suspend the Hosting Services at any time and for any reason without notice, but if such suspension lasts or is to last for more than 10 days we shall notify you of the reason for this.
5.3 You are responsible for monitoring your allocated monthly bandwidth allowance. You agree and acknowledge that if you exceed your allocated monthly bandwidth allowance you will incur Overusage Charges.
6 LIMITATION OF LIABILITY
6.1 Save as expressly set out in this agreement all representations, warranties, terms and conditions whether oral or written, express or implied by law, custom, statutes or otherwise are excluded. In particular, and without prejudice to the generality of the foregoing, we shall not be liable to you as a result of any virus introduced or passed onto you. You are advised to check the Website regularly for viruses.
6.2 Nothing in these Conditions shall exclude or limit the liability of either party or any of its officers, employees or agents in respect of:
6.2.1 death or personal injury caused by its negligence; or
6.2.2 any fraudulent misrepresentation which it may have made.
6.3 You agree and acknowledge that we shall not be liable under these Conditions for any costs, claims, damages or expenses, whether arising out of any tortious act or omission, any breach of contract or statutory duty:
6.3.1 of an indirect or consequential nature; or
6.3.2 that are calculated by reference to profits, whether direct or indirect, income, production of accruals, loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
6.4 Our maximum liability to you for the Hosting Services shall not exceed the total amount paid by you to us for the Hosting Services.
6.5 The limitations in this Clause 6 (Limitation of Liability) of Section C apply regardless of the form of action whether in contract or in tort including negligence.
7 TERMINATION
7.1 We may terminate these Conditions, without prejudice to any other rights or remedies available to us under or in connection with these Conditions, with immediate effect by written notice:
7.1.1 if you commit a material breach of your obligations under these Conditions; or
7.1.2 if you suspend, or threaten to suspend, payment of your debts or you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
7.1.3 if you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
7.1.4 if you are the subject of a bankruptcy petition or order; or
7.1.5 if you become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffers an administrative receiver to be appointed in relation to the whole or any part of your assets or make a composition or arrangement with your creditors or suffers any judgement to be executed in relation to any of your property or assets.
7.2 You may terminate these Conditions, without prejudice to any other rights or remedies available to you under or in connection with these Conditions, on 30 days written notice:
7.2.1 if we commit a material breach of our obligations under these Conditions and, in the case of a breach capable of remedy, it has not been remedied by us within 30 days following receipt of written notice by you specifying the breach; or
7.2.2 if we become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffer an administrative receiver to be appointed in relation to the whole or any part of our assets or make a composition or arrangement with our creditors or suffers any judgement to be executed in relation to any of our property or assets.
7.3 For the avoidance of doubt, we shall not be liable to refund you with any sums paid to us during the term of these Conditions if these Conditions are terminated for any reason by either party.
SECTION D - MAILBOX SERVICE
The following terms and conditions apply to the Mailbox Service.
1 SERVICES
1.1 We agree to provide you with Mailbox Services.
1.2 We may from time to time monitor the Server although we do not purport to monitor individual e-mail mailboxes.
2 QUOTA
Each Mailbox has a storage quota as set out on our website. It is your responsibility to ensure that your Mailbox does not reach its allocated storage level. We accept no liability for any loss, damage or expenses incurred by you due to a Mailbox reaching its storage quota.
3 CHARGES
3.1 In consideration for the Mailbox Services, you agree to pay the Charges within 30 days of the date of the invoice. Time of payment shall be of the essence.
3.2 All Charges in respect of the Mailbox Services will be invoiced and payable annually in advance. If additional charges are due under these terms and conditions then they shall be payable within 30 days after the date of our invoice.
3.3 All Charges are exclusive of VAT.
3.4 We may charge you interest in respect of late payment for any sum due to us in accordance with these terms and conditions at a rate of 4% above the base rate from time to time of Barclays Bank PLC from the due date of payment until payment is received.
3.5 If you fail to pay the Charges on the due date then, without prejudice to any of our other rights and remedies, we may suspend or cancel performance of the Mailbox Services.
4 SECURITY
4.1 It is your responsibility to keep your username and password confidential and to change your password on a regular basis. Whilst we undertake to maintain an acceptable level of security, we cannot give any guarantee regarding the security of data held on the Server.
4.2 You agree and acknowledge that we shall not be responsible for any data losses or any other security issue in relation to the Mailbox Services.
4.3 We shall use our reasonable endeavours to ensure that e-mail messages are routed accurately and promptly but we do not accept any liability for non-receipt, non-delivery, misrouting of e-mail or any other failure of the e-mail system.
5 AVAILABILITY
5.1 We shall use our reasonable endeavours to make the Mailbox Services available at all times but we shall not in any circumstances be liable for any interruptions to the Mailbox Services or Downtime of the Mailbox Services.
5.2 We reserve the right to suspend the Mailbox Services at any time and for any reason without notice, but if such suspension lasts or is to last for more than 10 days we shall notify you of the reason for this.
6 MAILBOX USAGE
6.1 You warrant that you will not reproduce, communicate, transmit, store or distribute via your Mailbox any material or information that:
6.1.1 infringes any third party's Intellectual Property Rights;
6.1.2 is in breach of any law, statute or regulations;
6.1.3 is defamatory, libellous, unlawfully threatening, abusive or harassing;
6.1.4 is unsolicited, unlawful, harmful, malicious, profane;
6.1.5 constitutes and/or encourages a criminal offence;
6.1.6 is obscene, pornographic or indecent; or
6.1.7 contains any viruses or other computer programmes intending to damage, detrimentally interfere with, surreptitiously intercept or expropriate any person or information, (together, "Inappropriate Content")
6.2 You acknowledge that we have no control over any content distributed to and from your Mailbox. We reserve the right to suspend or terminate the Mailbox Services if we determine at our sole discretion that it is being used to distribute or receive Inappropriate Content.
6.3 For the avoidance of doubt, we will have no liability for the content of any communications transmitted by virtue of the Mailbox Services.
6.4 You indemnify us against all damages, losses and expenses arising as a result of any action or claim that Inappropriate Content is being or has been reproduced, communicated, stored or distributed to or from your Mailbox.
7 INDEMNITY
You agree to indemnify us and keep us indemnified from and against any and all loss, damage, liability or claim and all costs and expenses incurred by us as a result of a breach of these terms and conditions by you, your employees, agents and contractors.
8 LIMITATION OF LIABILITY
8.1 Save as expressly set out in these Conditions all representations, warranties, terms and conditions whether oral or written, express or implied by law, custom, statutes or otherwise are excluded.
8.2 Nothing in these Conditions shall exclude or limit the liability of either party or any of its officers, employees or agents in respect of:
8.2.1 death or personal injury caused by its negligence; or
8.2.2 any fraudulent misrepresentation which it may have made.
8.3 You agree and acknowledge that we shall not be liable under these Conditions for any costs, claims, damages or expenses, whether arising out of any tortious act or omission, any breach of contract or statutory duty:
8.3.1 of an indirect or consequential nature; or
8.3.2 that are calculated by reference to profits, whether direct or indirect, income, production of accruals, loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
8.4 Our maximum liability to you for the Mailbox Services shall not exceed the total amount paid by you to us for the Mailbox Services.
8.5 The limitations in this Clause 8 (Limitation of Liability) of Section D apply regardless of the form of action whether in contract or in tort including negligence.
9 TERMINATION
9.1 We may terminate these Conditions, without prejudice to any other rights or remedies available to us under or in connection with these Conditions, with immediate effect by written notice:
9.1.2 if you commit a material breach of your obligations under these Conditions;
9.1.3 if you suspend, or threaten to suspend, payment of your debts or you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
9.1.4 if you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
9.1.5 if you are the subject of a bankruptcy petition or order; or
9.1.6 if you become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffers an administrative receiver to be appointed in relation to the whole or any part of your assets or make a composition or arrangement with your creditors or suffers any judgement to be executed in relation to any of your property or assets.
9.2 You may terminate these Conditions, without prejudice to any other rights or remedies available to you under or in connection with these Conditions, on 30 days written notice:
9.2.1 if we commit a material breach of our obligations under these Conditions and, in the case of a breach capable of remedy, it has not been remedied by us within 30 days following receipt of written notice by you specifying the breach; or
9.2.2 if we become insolvent or enter into liquidation or receivership or are the subject of an application for an administration order or suffer an administrative receiver to be appointed in relation to the whole or any part of our assets or make a composition or arrangement with our creditors or suffers any judgement to be executed in relation to any of our property or assets.
9.3 For the avoidance of doubt, we shall not be liable to refund you with any sums paid to us by you during the term of these Conditions if these conditions
