These terms and conditions shall apply to the agreement between Nominet, the administers of the .co.uk domain and , the individual or company applying for the provision of services via their Agent ElectricNames. These conditions are separate from those below
These terms and conditions shall apply to the agreement between ElectricNames (UK) Limited (``ElectricNames'') and , the individual or company applying for the provision of services by ElectricNames (``the Customer'') who should note particularly the limitation of liability set out in clause 6.
IT IS AGREED as follows:
In this Agreement, the following expressions shall have the following meanings:-
"Confidential Information" information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary
"Fees" the fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price List
"Inappropriate Material" material that under the laws of any jurisdiction where the material can be accessed is or may be any of the following:- unlawful, threatening, abusive, harmful, malicious, obscene, pornographic, malicious, profane, libellous, defamatory, infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, trojan horse or other harmful code
"Intellectual Property Rights" copyrights, patents, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world
"Material" text, graphics, images, sound, video or any combination thereof
"ElectricNames's Server" the computer server equipment operated by ElectricNames in connection with the provision of the Services
"ElectricNames's Website" the Website located at http://www.ElectricNames.com or such other internet address as may be adopted by ElectricNames from time to time
"Netiquette" generally accepted standards of conduct relating to use of the Internet including, without limitation, not sending unsolicited mass e-mail, not impersonating another person, and not misrepresenting oneself to have authorisation from another person when one does not
"Order Form" an order form provided by ElectricNames as available on ElectricNames's Website or from ElectricNames by post or fax on request, and completed by the Customer to indicate which Services it requires and its agreement to these terms and conditions governing such provision
"Relevant Legislation" such laws of England and Wales and the Customers country as relate to data protection and any laws of England and Wales and the Customer's country governing Inappropriate Material
"Services" the services identified on an Order Form to be provided by ElectricNames to the Customer pursuant to these terms and conditions and any others specified by ElectricNames on such Order Form
"Website" a website on the World Wide Web.
In consideration for the payment of the Fees calculated correctly in accordance with the Price List at the time of the completion of an Order Form by the Customer, ElectricNames agrees to provide the Services.
The Customer agrees to make payment for the Services as follows:-
2.1.2 by debit or credit card payment at the time of making the order if the Customer completes an Order Form on-line; or
2.1.3 by payment of invoice within 14 days of the invoice date if the Order Form is submitted by fax or post.
2.2 If the Customer fails to pay any invoice which is due and payable under this Agreement, ElectricNames shall be entitled to charge interest on a daily basis on the overdue amount and on outstanding interest from the date of such failure until payment (both before and after judgment) at an annual rate of 4% above the base rate of LloydsTSB Bank plc for the time being in force.
2.3 Non-delivery or non-performance of services by any third party other than ElectricNames's sub-contractors shall not give the Customer any right to delay any payment to ElectricNames or to make any claim whatsoever against ElectricNames.
2.4 If ElectricNames does not receive payment in full within 28 days of the date of the invoice, it may terminate this Agreement as regards any Service requested by the Customer without further obligation to the Customer.
2.5 For the purposes of this Agreement, time of payment is of the essence.
3.1 The Customer hereby agrees fully to indemnify, keep indemnified and hold harmless ElectricNames, its officers, employees, agents, sub-contractors and affiliated companies from and against any and all costs, claims, losses, damages or liability (whether civil or criminal) and expenses (including, but not limited to, legal fees) sustained or incurred by ElectricNames or its any of its officers, employees, agents, sub-contractors or affiliated companies directly or indirectly and in any jurisdiction as a result of:-
3.1.1 the provision by ElectricNames to the Customer of any Service hereunder; or
3.1.2 any breach by the Customer of any of its warranties contained in this Agreement ; or
3.1.3 any content material or required mode of operation supplied or specified by the Customer for any Service; or
3.1.4 any breach by the Customer of any of its obligations in this Agreement.
The Customer hereby appoints ElectricNames to act on its behalf in conjunction with the provision of the Services.
The Customer acknowledges and accepts that to enable ElectricNames properly to provide the Services it must co-operate with ElectricNames as required by ElectricNames and, without limitation in particular:-
4.2.1 the Customer must provide ElectricNames with accurate details of its e-mail and physical addresses and promptly notify ElectricNames in writing of any alterations thereto from time to time;
4.2.2 the Customer must obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to ElectricNames;
4.2.3 keep the Customer's user ID secure so that such ID is only used by the Customer or those authorised by the Customer;
5.1 ElectricNames warrants that it will make reasonable endeavours to ensure that the services are provided as described in ElectricNames's Website but because the Services are provided by means of computer and telecommunication systems ElectricNames makes no warranties or representations that any Service will be uninterrupted or error-free.
5.2 ElectricNames warrants that it has in place a year 2000 compliance programme the purpose of which is to ensure the Services are not disrupted by the century date change. In respect of the Services which do not involve any third party product service or deliverable, ElectricNames shall make reasonable endeavours to ensure such Services are not interrupted by the century date change. ElectricNames relies on third party suppliers to provide uninterrupted Services and to the extent Services are reliant on third party's products and services, ElectricNames will endeavour to procure confirmation from the relevant third parties that their products and services will not be affected by the century date change or failing receipt of such confirmation take such steps as are reasonably practical to ensure that the services are not disrupted by the century date change.
5.3 ElectricNames supplies the Services in accordance with this Agreement and to the standards ElectricNames considers appropriate to the nature of services generally required by its customers, accordingly to the maximum extent permitted by law, except as expressly stated in these terms and in so far as required by law where the Customer has dealt as a consumer (as defined in the UK Unfair Terms in Consumer Contracts Regulations 1994), all implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) including, but not limited to, those relating to the exercise of reasonable care and skill, fitness for purpose and durability and satisfactory quality (where applicable) are hereby excluded in relation to each of the Services to be provided.
6. LIMITATION OF LIABILITY
Nothing under these terms limits ElectricNames's liability for any fraudulent statement or for personal injury or death caused by ElectricNames's negligence. However, the customer ackowledges and takes notice that the services are not appropiate for use in circumstances where personal injury or death could arise from reliance on the services whether or not ElectricNames is negligent and that it should satisfy itself as to the veracity of any statements made by ElectricNames or on ElectricNames's behalf.
The entire liability of ElectricNames, and the customer 's sole and exclusive remedy, arising in respect of any tort, breach of duty (statutory or otherwise) or breach of this agreement by ElectricNames (and whether or not by ElectricNames's negligence) is limited to the fee paid for the service or services in respect of which the alleged tort or breach has arisen in the period of 12 months preceding the event giving rise to the liability
In no event will ElectricNames be liable to the customer for any indirect or consequential loss or damage whatever (without limitation for example loss of business, loss of opportunity, loss of profits)
Even if ElectricNames has been advised of the possibility of such loss or damage such advice shall not constitute the loss or damage if it arises as direct loss or damage.
Any liability of ElectricNames whatever arising under these terms or otherwise in respect of the service or any product shall be deemed to end 12 months after the date on which the customer ought reasonably to have known of the event giving rise to the liability. For the avoidance of doubt, the customer acknowledges and agrees that no claims or actions by the customer can be validly made after the expiry of 12 months following such date.
7.1 ElectricNames may terminate this Agreement by notice in writing to the Customer having immediate effect if:
7.1.1 the Customer is in breach of any of its obligations under this Agreement;
7.1.2 the Customer is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
7.1.3 the Customer is an individual and a petition for bankruptcy is presented against it; or
7.1.4 a receiver or liquidator (where the Customer is a company) or (where the Customer is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
7.1.5 the Customer proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement).
7.2 In the event that any of the circumstances identified in clause 7.1 arises, ElectricNames shall have the option to terminate this Agreement as regards all Services provided or to be provided or only as regards that Service or those Services in respect of which the breach is considered by ElectricNames to have been committed; and
7.3 In the event that any of the circumstances identified in clause 7.1 arises, ElectricNames shall be entitled to retain any sums paid to it by the Customer hereunder and recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
7.4 Either party may terminate this Agreement on one month's written notice served in accordance with clause 9.6 (Notices).
8.1 Each of the parties agrees (subject to clauses 8.2 and 8.3) not to:
8.1.1 disclose any Confidential Information received from the other party; or
8.1.2 make any use of any such Confidential Information other than for the purposes of performance of this Agreement.
8.2 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
8.3 The confidentiality obligations under clause 8.1 shall not apply to any information which:
8.3.1 is or subsequently becomes available to the general public other than through a breach by the receiving party; or
8.3.2 is already known to the receiving party before disclosure by the disclosing party;
8.3.3 is developed through the independent efforts of the receiving party; or
8.3.4 the receiving party rightfully receives from a third party without restriction as to use.
9.1 Subject to clause 9.2, this written Agreement together with the Order Form(s), constitutes the entire agreement between the parties hereto relating to the subject matter hereof and save in respect of fraudulent statements supersedes all prior agreements, arrangements, understandings and representations (whether oral, written or otherwise) made by or between the parties and each party acknowledges that it has not relied on any representation made by the other party unless such representation is expressly included herein.
9.2 No change, alteration or modification to this Agreement shall be valid unless in writing referencing this Agreement and signed by the Customer and ElectricNames.
9.3 If any provision of this Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted and the remaining provisions shall continue in full force and effect.
9.4 The rights and obligations of the Customer under this Agreement are personal to the Customer and the Customer undertakes that it shall not nor purport to: assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
9.5 ElectricNames reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
9.6 All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out on the front page of this Agreement or such other address or electronic mail address as the recipient may designate by notice given in accordance with this clause. Any such notice may be delivered personally, by first class pre-paid letter by facsimile transmission or electronic mail and shall be deemed to have been received:-
by hand delivery - at the time of delivery provided that it is handed over to a senior employee or officer of the recipient company,
by first class registered post - 48 hours after the date of mailing in the United Kingdom, or
by facsimile - on receipt of telephone confirmation of receipt from the intended recipient, or
by electronic mail - on receipt of telephone confirmation of receipt from the intended recipient.
9.7 Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
9.8 Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
9.9 Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Agreement.
9.10 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
10. Together with the terms of Section 1 above, the terms set out in this Section 2 identify the extent of the domain name registration services provided by ElectricNames and the Customer's obligations in relation thereto.
11. The Customer recognises and accepts that:-
11.1 While ElectricNames will make reasonable endeavours to achieve a successful registration and keep the Customer notified of the progress of the registration application, because of the nature of the registration process, ElectricNames reserves the right to reject any request by a Customer to register any particular domain name or to discontinue processing such a request if ElectricNames considers such application might expose ElectricNames to legal or other proceedings.
11.2 Subject to clause 2 and clause 13, the extent of ElectricNames's service in relation to the registration of domain names is:-
11.2.1 to forward the Customer's application to the appropriate Registry;
11.2.2 to provide administrative support in securing the registration;
11.2.3 to notify reasonably promptly the Customer of the outcome of the application;
11.2.4 in the event of re-registration, to endeavour to notify the Customer of the renewal date for such re-registration and only to complete such renewal on payment by the Customer of the renewal fees.
11.3 Subject to ElectricNames using reasonable endeavours to notify the Customer prior to the domain name registration renewal date(s) by fax, email or post at the addresses or number most recently provided by the Customer pursuant to clause 4.2.1, ElectricNames accepts no responsibility for the Customer's use or retention of a domain name once registered
11.4 Without prejudice to clause 6 above, ElectricNames shall not be liable to the customer for any direct, indirect or consequential loss, damage cost or expense including without limitation any loss of profit, business or anticipated savings suffered by customer on account of a failure to obtain or loss of a domain name;
11.5 Domain name registries retain the right at their discretion to register or refuse to register a domain name applied for by ElectricNames on behalf of the Customer therefore without prejudice to clause 5 above, ElectricNames makes no warranty or representation of any kind in relation to the likelihood or otherwise of a particular domain name application being successful;
11.6 The Customer's use of the domain name once registered may be challenged by a third party; if so, or if any other dispute arises the procedures laid down by the relevant registry will apply and these may include the suspension or revocation of a Customer's application for a domain name or the registration of a domain name allocated to the Customer and unless otherwise agreed by the parties in writing signed by an officer of ElectricNames, ElectricNames will have no responsibility or involvement in relation thereto;
11.7 It is the Customer's responsibility to pay any and all renewal charges to the relevant registry in respect of each domain name registered by ElectricNames on the Customer's behalf;
11.8 As is common domain name registration practice, domain names are registered on a first come, first served basis;
11.9 The registration of a domain name does not confer any legal rights to a name or its use and any disputes between the Customer and a third party are to be settled using normal legal methods. The Customer agrees that ElectricNames will not be drawn into any such argument or dispute in any circumstances unless otherwise agreed by the parties in writing signed by an officer of ElectricNames;
11.10 An application for the registration of a domain name cannot be treated as having been successful until the Customer is issued with a ``Registration Certificate'' from the relevant registry. The Customer agrees not to take any action in respect of a requested domain name until such a certificate has been issued to the Customer.
12. The Customer warrants to ElectricNames that:-
12.1 all information provided by the Customer to ElectricNames is true and correct, and that any additions or alterations thereto in the future will also be true and correct;
12.2 it has the legal right to apply for and use the domain name(s) as a Website address; and
12.3 the domain name(s) and its use as a Website address does not and will not infringe the Intellectual Property Rights or any other rights of a third party.
13.1 The Customer acknowledges:
13.1.1 that the application process, registration and subsequent use of any domain name is subject to the then current terms and conditions and policies of the relevant registry and the Customer agrees to abide by all such rules and policies; and
13.1.2 accordingly, the Customer undertakes to read those terms and conditions and policies before applying for a domain name (copies are generally available from the relevant registry's Website and are available from ElectricNames by fax or post on request) and to comply with them.
13.2 If the Customer's application for a particular domain name is rejected, ElectricNames will return to the Customer any payments received in respect of that application less a thirty pounds sterling administration fee provided that the Customer has not breached its obligations in this Agreement.
13.3 If the customer wishes to change the "tag" or registrar of a domain name to another domain name registration company there is a £25 charge for this. There is only a charge of £10 to change the dns entries for a domain that has the same effect except that you will continue to be billed on an annual basis for the registry fees. Please discus with ElectricNames before taking any action along these lines.
RENEWAL OF DOMAINS
13.4 If the the customer fails to pay ElectricNames the renewal fee at least 72 hours, not including the weekends, for a domain name prior to the renewal date, whether such fee is demanded or not, and as a result their service is suspended in anyway by nominet or any ICANNpartner Electric Names cannot be held liable for any loss. In the event of a successful renewal after the expiry date there will be a fee. The fee for the reactivation of a .com name will be £50 and for a .co.uk £20.
13.5 Important: It is the responsibility of the customer to contact ELECTRICNAMES if they want to renew a domain. If the customer has not updated ELECTRICNAMES of new contact details or has not responded we cannot be held responsible for the subsequent deletion of the name.
Pricing of Renewals - For .com domains renewed less than 3 weeks prior to expiry will be liable to a £20 additional charge. An invoice will be sent out 5 weeks prior to renewal.
14. Together with the terms of Section 1 above, the terms set out in this Section 3 identify the extent of the Website hosting services provided by ElectricNames and the Customer's obligations in relation thereto.
15. The Customer will provide and post to ElectricNames's server hosting the Customer's Website only Material which is ``server-ready'' and which requires no additional manipulation on the part of ElectricNames. ElectricNames shall be under no obligation to validate such Material as not containing Inappropriate Material or for content, correctness, legality or usability.
16. The Customer recognises that using ElectricNames's Website hosting Service requires a certain level of knowledge on the Customer's or its web development agency's part, without limitation for example knowledge of hyper text mark up language or file transfer protocol and other protocols, languages and software, and that it is the Customer's or its web development agency's responsibility to upload the content of the Customer's Website and to check such content functions satisfactorily. If requested by the Customer, ElectricNames may be able to recommend a suitable web development agency to assist the Customer to exploit its Website hosted by ElectricNames's Server.
17. The Customer warrants that it has the necessary knowledge referred to in clause 15 above and acknowledges that whilst ElectricNames may endeavour to assist the Customer on a ``good-will'' basis, it is not the responsibility of ElectricNames to provide such knowledge or to provide the Customer with support and assistance in relation to its Website hosted by ElectricNames's Server unless otherwise agreed in writing with ElectricNames.
18. The Customer acknowledges and accepts that it bears sole responsibility, legal and otherwise, for the content of all Material appearing on its Website hosted by ElectricNames's Server. For the avoidance of doubt, this clause shall apply to all Material, whether posted on to the ElectricNames server by or on behalf of the Customer, whether by ElectricNames or a third party.
19. The Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests ElectricNames or any third party to post on its Website hosted by ElectricNames's Server) that:
19.1 it is not Inappropriate Material;
19.2 the Customer either has sole ownership of all Intellectual Property Rights in such Material in each jurisdiction from which the Website may be accessed and/or has obtained full and effective licence(s) from all relevant third parties allowing the Customer or a third party acting on behalf of the Customer to use the Material and to permit its dissemination world wide;
20. The Customer undertakes not to link to any Inappropriate Material from its Website.
21. ElectricNames shall retain the right at all times to refuse to host any Material and to suspend availability of the Website and/or to remove any Material already appearing on the Website which in the opinion of ElectricNames:
21.1 constitutes or would if posted constitute Inappropriate Material;
21.2 breaches or would if posted breach Relevant Legislation or any other applicable regulations, standards or codes of practice (notwithstanding that compliance may not be compulsory); and/or
21.3 harms or would if posted harm the reputation of ElectricNames in any way.
22. ElectricNames's rights to suspend availability of the Customer's Website and/or remove content under clause 21 above shall be without prejudice to the Customer's sole responsibility for content of the Website under clause 18 and to the warranties given by the Customer relating to that content in clause 19.
23. Hosting of Material by ElectricNames on the Customer's Website shall not under any circumstances constitute a waiver of any of its rights in relation to such Material or of its rights in relation to any breach of the Customer's obligations under this Agreement.
24. The Customer undertakes:
24.1 to fully virus-check all data supplied to ElectricNames pursuant to this Agreement;
24.2 not to embark on any course of action, whether by use of its Website or any other means, which may cause a disproportionate level of Website activity without providing at least seven day's prior notice in writing to ElectricNames;
24.3 to keep secure from third parties any passwords issued to the Customer by ElectricNames in connection herewith;
24.4 to observe the limitations on data transfer notified to it by ElectricNames and agree, if such limits are exceeded, to pay the appropriate excess charge at ElectricNames's then current rates.
25. Together with the terms of Section 1 above, the terms set out in this Section 4 identify the extent of the e-mail services provided by ElectricNames and the Customer's obligations in relation thereto.
26. The Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
26.1 transmit Inappropriate Material;
26.2 infringe the Intellectual Property Rights of any third party;
26.3 contravene Netiquette;
26.4 make use of ElectricNames's Server to an extent or in a manner which in ElectricNames's reasonable opinion is excessive, wasteful or otherwise to the detriment of ElectricNames, any of ElectricNames's customers or any other third party, including but not limited to:-
26.4.1 the transmission of bulk e-mail (``spamming''); or
27. When sending e-mail, the Customer acknowledges that it is responsible for complying with any Relevant Legislation.
28. The Customer acknowledges and agrees that ElectricNames is not responsible for the security of the contents of e-mail sent or received by the Customer.
29. ElectricNames will use its reasonable endeavours to ensure that messages are routed accurately and promptly but does not accept any liability for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system.
30. ElectricNames's policy is to respect the privacy of e-mail messages sent, received forwarded or otherwise dealt with by it and the Customer acknowledges that ElectricNames will therefore not monitor, edit or disclose the contents of such messages unless required to do so by law or competent authority or to protect ElectricNames's rights and/or position.
31. Together with the terms of Section 1 and Section 3 above, the terms set out in this Section 5 identify the extent of the housing of the Customer's computer server(s) provided by ElectricNames and the Customer's obligations in relation thereto.
32. ElectricNames shall:
32.1 provide adequate storage space for one standard size server (7u) to house the Customer's computer server(s) in ElectricNames's air-conditioned premises;
32.2 provide 3 hours of support and assistance in installing the Customer's computer server(s);
32.3 on notice of not less than 48 hours make the Customer's computer server(s) accessible to the Customer for two one hour sessions during 10 am to 4 pm Monday to Friday on English working days per week;
32.4 provide an uninteruptible power source to connect to the Customer's computer server(s);
32.5 provide an internet protocol address for the Customer's Website hosted by the Customer's computer server(s) housed by ElectricNames;
32.6 provide a 10 Mb per second ethernet connection to ElectricNames's local area network which in turn connects to ElectricNames's internet service providers.
33. Without prejudice to the provisions of clause 6 above, ElectricNames accepts no direct, indirect or consequential liability whatsoever in respect of loss or damage to the customer's computer server(s) whilst housed by ElectricNames or any loss or damage to the customer's business resulting therefrom and the customer agrees that it is its own responsibility to take out and maintain appropriate insurance.