123-net – TERMS AND CONDITIONS
These terms and conditions shall apply to the agreement between 123-net Limited of Research House, Fraser Road, Greenford, Middlesex, UB6 7AQ, United Kingdom (“123-net”) and, the individual or company applying for the provision of services by 123-net (“Customer”).
IT IS HEREBY AGREED THAT:
SECTION 1 – GENERAL
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 any of the following:- unlawful, threatening, abusive, harmful, malicious, obscene, pornographic, 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.|
|“123-net’ Website”||the Website located at http://www.123-net.co.uk or such other address as may be adopted by 123-net from time to time.|
|“Material”||text, graphics, images, sound, video or any combination thereof.|
|“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 123-net as available on 123-net’ Website or from 123-net by post or fax on request, and completed by Customer to indicate which Services it requires and its agreement to these terms and conditions governing such provision.|
|“Price List”||a list of 123-net’ prices for each of the Services as available on 123-net’ Website or from 123-net by post or fax on request.|
|“Relevant Legislation”||laws relating to data protection and any laws governing Inappropriate Material.|
|“Server”||the computer server equipment operated by 123-net in connection with the provision of the Services.|
|“Services”||the services identified on an Order Form to be provided by 123-net to Customer pursuant to these terms and conditions and any others specified by 123-net on such Order Form.|
|“Website”||a website on the World Wide Web.|
2. PAYMENT AND SERVICES2.1 In consideration for the payment of the Fees calculated correctly in accordance with the Price List on 123-net’ Website at the time of the completion of an Order Form by Customer or of placing of an Order by Customer by telephone or fax, 123-net agrees to provide the Services.
2.1.1 Domain names are registered for the period specified at the time of ordering, and are renewable by Customer on or before the end of the initial paid-for period, at the then current renewal rates, as published on 123-net’ Website from time to time, subject to Clauses 11.3 and 13.1.
2.1.2 Website hosting periods are either 3 months or 12 months, as specified by Customer at the time of ordering, at the rate specified in 123-net’ price list as published on its Website from time to time. Website hosting is automatically renewed and payable for 3 months (if originally ordered for 3 months) or for 12 months (if originally ordered for 12 months), on termination of the initial contract period and any subsequently renewed contract period, unless Customer gives one months written notice to 123-net to cease the Service subject always to Clause 9.2.
2.2 The Customer agrees to make payment for the Services as follows:-
by debit or credit card payment at the time of making the order or renewal; or
at 123-net’ discretion, by payment of invoice in Pounds Sterling within 10 days of the invoice date if specially agreed beforehand, or a UK Limited Company.
2.3 If Customer fails to pay any invoice which is due and payable under this Agreement, 123-net 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 (until judgment) at the rate of 2% per month.
2.3.1 123-net reserves the right at its’ sole discretion to suspend any or all services provided for Customer in the event of non-payment of any invoice. In the event of services being suspended, 123-net reserves the right to charge a reinstatement fee of £15 per incident (plus VAT as applicable).
2.4 Non-delivery or non-performance of services by any third party other than 123-net’ sub-contractors shall not give Customer any right to delay any payment to 123-net or to make any claim whatsoever against 123-net.
2.5 If 123-net 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 Customer without further obligation to Customer. Domain names, once registered, are unable to be cancelled or changed.
2.6 For the purposes of this Agreement, time of payment is of the essence.3. INDEMNITY3.1 Customer hereby agrees fully to indemnify, keep indemnified and hold harmless 123-net, its officers, employees, agents, sub-contractors and affiliated companies from and against any and all costs, claims, losses, damages and expenses (including, but not limited to, legal fees) sustained or incurred by 123-net 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 any breach of any of the warranties given by Customer in this Agreement;3.1.2 otherwise howsoever arising out of the provision by 123-net of any Service hereunder unless on account of breach of contract or negligence by 123-net; and/or3.1.3 any breach by Customer of any of its obligations in this Agreement.
4. CUSTOMER AUTHORISATION AND OBLIGATIONS
4.1 Customer hereby appoints 123-net to act on its behalf in conjunction with the provision of the Services.
4.2 Customer acknowledges and accepts that to enable 123-net properly to provide the Services it must co-operate with 123-net as required by 123-net and, in particular:-
4.2.1 Customer must provide 123-net with accurate details of its e-mail and physical addresses and promptly notify 123-net in writing of any alterations thereto from time to time;
4.2.2 obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to 123-net.
5. INTERNETTERS WARRANTIES AND LIABILITY
5.1 123-net makes no warranties or representations that any Service will be uninterrupted or error-free. Customer accepts all Services provided hereunder “as is” without warranty of any kind.
5.2 All implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) – excluding those relating to the exercise of reasonable care and skill, fitness for purpose and satisfactory quality (where applicable) – are hereby excluded in relation to each of the Services to be provided hereunder to the fullest extent permitted by law.
5.3 123-net shall not be liable for any services or products to be supplied by any third party.
5.4 123-net shall not be liable for any loss or damage of whatsoever nature suffered by Customer arising out of or in connection with any breach of this Agreement by Customer or any act, misrepresentation, error or omission made by or on behalf of Customer.
5.5 Subject to Clauses 5.6 and 5.7 below, no matter how many claims are made and whatever the basis of such claims, 123-net’ maximum aggregate liability to Customer under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 5.1-5.5 above, or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the Fees paid by Customer pursuant hereto.
5.6 None of the clauses herein shall apply so as to restrict liability for death or personal injury resulting from the negligence of 123-net, its employees or its sub-contractors.
5.7 This does not affect your statutory rights as a consumer, including those set out in Clause 8 below.
6.1 123-net may terminate this Agreement by notice in writing to Customer having immediate effect if:
6.1.1 Customer is in breach of any of its obligations under this Agreement;
6.1.2 Customer is a company and a resolution is passed for its winding up or a petition for its liquidation is presented; or
6.1.3 Customer is an individual and a petition for bankruptcy is presented against it; or
6.1.4 A receiver or liquidator (where Customer is a company) or (where Customer is an individual) a trustee in bankruptcy is appointed over it or any of its assets; or
6.1.5 Customer proposes or enters into any arrangement or composition with or for its creditors (including any voluntary arrangement).
6.2 In the event that any of the circumstances identified in Clause 6.1 arises, 123-net 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 123-net to have been committed; and
6.3 In the event that any of the circumstances identified in Clause 6.1 arises, 123-net shall be entitled to retain any sums paid to it by Customer hereunder and recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
7.1 Each of the parties agrees (subject to Clauses 7.2 and 7.3) not to:
7.1.1 disclose any Confidential Information received from the other party; or
7.1.2 make any use of any such Confidential Information other than for the purposes of performance of this Agreement.
7.2 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.
7.3 The confidentiality obligations under Clause 7.1 shall not apply to any information which:
7.3.1 is or subsequently becomes available to the general public other than through a breach by the receiving party; or
7.3.2 is already known to the receiving party before disclosure by the disclosing party;
7.3.3 is developed through the independent efforts of the receiving party; or
7.3.4 the receiving party rightfully receives from a third party without restriction as to use.
8. CANCELLATION BY CUSTOMER
8.1 Where a Customer is deemed to be a “consumer” for the purposes of the Consumer Protection (Distance Selling) Regulations 2000 or any reenactment thereof, he/she has the right to cancel an order, within 7 days of placing the order, by giving notice in writing to 123-net, subject to the following provisions:-
(i) orders for registration of domain names may not be cancelled after the domain name has been registered with the appropriate registrar/registry.
(ii) orders for renewal of domain names may not be cancelled after 123-net has submitted the renewal request to the appropriate registrar/registry.
(iii) orders for .biz or .info Landrush2 domains may not be cancelled after the domain name application has been recorded in 123-net Landrush2 database.
(iv) orders for secure server certificates cannot be cancelled after the certificate request has been submitted to the certification authority.
8.2 In the event of a cancellation of an order by Customer, under the terms of this provision, 123-net undertakes to refund any monies paid within 30 days of cancellation.
9.1 Subject to Clause 9.2, this written Agreement together with the Schedules hereto and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof. Nothing in this Clause 9.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.
9.2 123-net reserves the right to modify this Agreement from time to time. We will post notice of any changes to this Agreement on our website at least 30 days (or a shorter period if this is not practical for whatever reason) before the change takes effect. Please check our website regularly. If you do not wish to be bound by the amended Agreement you may give 30 days notice in writing to terminate this Agreement. You will not be entitled to any refund and will be liable to pay any fees due up to the date of termination. If you continue to use our Services (e.g. managing your domain name or hosting your website with us) after any changes take effect, you will be bound by the amended Agreement. Any renewal of our Services or of domain names through 123-net will in any case be subject to the then current terms and conditions.
9.3 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
9.4 The rights and obligations of Customer under this Agreement are personal to Customer and Customer undertakes that it shall not, without the prior written consent of 123-net, assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
9.5 123-net reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
9.6 Any notice given pursuant hereto may be served personally or sent by pre-paid registered letter or recorded delivery to the addresses given hereabove and in the case of notice to be given pursuant to clause 9.2 123-net may give notice as set out in that clause. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally, at the time of such service or, when posted, 48 hours after the same shall have been put into the post correctly addressed and pre-paid.
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 to the exclusive jurisdiction of the Courts of England and Wales.
SECTION 2 – DOMAIN NAME REGISTRATION
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 123-net and the Client’s obligations in relation thereto.
11. Customer recognises and accepts that:-
11.1 123-net reserves the right to reject any request by a Customer to register any particular domain name or to discontinue processing such a request if 123-net considers such application might expose 123-net to legal or other proceedings.
11.2 Subject to Clause 13, the extent of 123-net’ service in relation to the registration of domain names is:-
a. to forward Customer’s application to the appropriate Registry;
b. to provide administrative support in securing the registration;
c. to notify Customer of the outcome of the application;
11.3 Subject to using its reasonable endeavours to contact Customer prior to the domain name registration renewal date(s) at the e-mail address most recently provided by Customer pursuant to Clause 4.2.1, 123-net will have no involvement in, or responsibility for Customer’s use or retention of a domain name once registered;
11.4 For the avoidance of doubt and in addition to the provisions of Clause 5 above, in no circumstances will 123-net be liable to Customer for any loss of profit, business or anticipated savings suffered by Customer on account of a failure to obtain or loss of a domain name;
11.5 123-net makes no warranty or representation of any kind in relation to the likelihood or otherwise of a particular domain name application being successful because domain name registries retain the right at their discretion to register or refuse to register a domain name applied for by 123-net on behalf of Customer;
11.6 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 Customer to a third party and 123-net will have no responsibility or involvement in relation thereto;
11.7 It is Customer’s responsibility to pay any and all renewal charges to the relevant registry in respect of each domain name registered by 123-net on Customer’s behalf;
11.8 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 Customer and a third party are to be settled using normal legal methods. 123-net will not be drawn into any such argument or dispute in any circumstances;
11.10 An application for the registration of a domain name cannot be treated as having been successful until Customer has been notified by 123-net in writing to this effect by email or otherwise.
11.11 123-net will notify Customer as soon as is reasonably possible after the registration of a domain name has been effected and Customer shall be responsible for visiting 123-net’ Website on receipt of such notification in order to verify that the domain name has been registered correctly and for notifying 123-net immediately if there is any error.
11.12 Customer is advised not to take any action in respect of a requested domain name until it has carried out its obligations under Clause 11.11 and satisfied itself that such domain name has been correctly registered.
11.13 If Customer wishes to change the Registered Details of any Domain Name Server provided to 123-net, or if Customer requests 123-net to release a Domain Name registration from its association with 123-net’ Nominet UK Tag:
11.13.1 123-net will not be obliged to (but at its option may) make the requested change, or so release the registration, unless all monies owed to 123-net by Customer under these Terms and Conditions have been received by 123-net in full, and in that case 123-net must make the requested change or release the Domain Name registration from its association with 123-net’ Nominet UK Tag; and
11.13.2 where 123-net agrees to or is obliged to make a change in the registered details of any Domain Name Server hosting the Domain Name or to release the Domain Name registration under condition 11.13.1 above, 123-net must make the change or release the registration from its association with 123-net’ Tag within 7 days after that agreement or the Customer’s request, as the case may be.
12. Customer warrants to 123-net that:-
12.1 all information provided by Customer to 123-net 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 and/or email address; and
12.3 the domain name(s) and its use as a Website and/or email address does not and will not infringe the Intellectual Property Rights or any other rights of a third party.
13.1 Customer acknowledges that the application process, registration and subsequent use of any domain name will be subject to the rules and policies from time to time of the relevant registry and Customer agrees to abide by all such rules and policies. Accordingly, Customer undertakes to read those rules and policies before applying for a domain name (copies are generally available from the relevant registry’s Website and are available from 123-net by fax or post on request).
13.2 If Customer’s application for a particular domain name is rejected, 123-net will return to Customer any payments received in respect of that application. This does not apply to “preregistration” applications for the new .name domain names, for which the application fee is non-refundable.
13.3 Any registrations for .com, .net, .org, .info, .biz and .name domain names are also subject to the associated Domain Name Registration Agreement and associated UDRP Uniform Dispute Resolution Policy and Rules.
13.4 Any registrations for .uk domain names are also subject to Nominet Terms & Conditions.
13.5 In the case of 123-net NameRetriever service, this runs for a period of 12 months from the date of acceptance of the order by 123-net. 123-net agrees to refund Customer the £49.99 NameRetriever fee in full, if a domain name which we are trying to register for Customer is either renewed by the existing registrant and consequently not released back to the market, or if it is successfully registered by another registrant. 123-net will only accept one application for any single detagged domain name.
SECTION 3 – WEBSITE HOSTING
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 123-net and the Client’s obligations in relation thereto.
15. Customer will provide all Material which Customer wishes 123-net to post on a Website in a condition which shall be “server-ready” and which requires no additional manipulation on the part of 123-net. 123-net shall be under no obligation to validate such Material for content, correctness, legality or usability.
16. Customer recognises that using 123-net’ Website hosting services requires a certain level of knowledge on Customer’s part in the use of Internet languages, protocols and software. The following examples are offered:
- Web Publishing: requires a knowledge of HTML, properly locating and linking documents, FTPing Web contents, graphics, sound, text, imagemapping etc
- CGI scripts: requires a knowledge of the UNIX environment, Telnet, TAR and GUNZIP commands, Perl, CShell, permissions etc
17. Customer warrants that it has the necessary knowledge referred to in Clause 16 above and acknowledges that it is not the responsibility of 123-net to provide such knowledge or to provide customer support unless otherwise agreed in writing with 123-net.
18. Customer acknowledges and accepts that it bears sole responsibility, legal and otherwise, for the content of all Material appearing on its Website. For the avoidance of doubt, this clause shall apply to all Material, whether posted on Customer’s Website by or on behalf of Customer (whether by 123-net or a third party).
19. Customer warrants, represents and undertakes in relation to all Material (including any Material which it requests 123-net to post on its Website) that:
(i) it is not Inappropriate Material;
(ii) 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 Customer or a third party acting on behalf of Customer to use the Material and to permit its dissemination worldwide;
20. Customer undertakes not to link to any Inappropriate Material from its Website.
21. 123-net shall retain the right at all times to refuse to post any Material and to suspend availability of the Website, place a prominent notice on the Website where an allegation of defamation or Intellectual Property Right infringement is made by a third party or place a link on the Website to another Website containing the alleger’s version of events and/or to remove any Material already appearing on the Website which in the opinion of 123-net may under the laws of any jurisdiction from which it is possible to access the relevant Website :
(i) constitutes or would if posted constitute Inappropriate Material;
(ii) 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
(iii) harms or would if posted harm the reputation of 123-net in any way.
22. 123-net’ rights to suspend availability of Customer’s Website and/or remove content under Clause 21 above shall be without prejudice to Customer’s sole responsibility for content of the Website under Clause 18 and to the warranties given by Customer relating to that content in Clause 19.
23. Posting of Material by 123-net on the 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 Customer’s obligations under this Agreement.
24. Customer undertakes fully to virus-check all data supplied to 123-net pursuant to this Agreement.
25. Customer undertakes 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 123-net.
26. Customer undertakes to keep secure from third parties any passwords issued to Customer by 123-net in connection herewith.
SECTION 4 – E-MAIL SERVICES (including e-mail forwarding)
27. 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 123-net and the Client’s obligations in relation thereto.
28. Customer undertakes that it will not (and will ensure that others under its control will not) via e-mail:
(i) transmit Inappropriate Material;
(ii) infringe the Intellectual Property Rights of any third party;
(iii) contravene Netiquette;
(iv) make use of the Server to an extent or in a manner which in 123-net’ reasonable opinion is excessive, wasteful or otherwise to the detriment of 123-net, any of 123-net’ customers or any other third party, including but not limited to:-
(a) the transmission of bulk e-mail (“spamming”); or
(b) the transmission of insulting criticism or remarks intended to incite anger (“flaming”).
29. When sending e-mail, Customer acknowledges that it is responsible for complying with any Relevant Legislation.
30. Customer acknowledges that 123-net is not responsible for the security of the contents of e-mail sent or received by Customer.
31. 123-net 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.
32. 123-net’ policy is to respect the privacy of e-mail messages sent, received forwarded or otherwise dealt with by it and Customer acknowledges that 123-net 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 123-net’ rights and/or position.
33. If you send mail that’s unsolicited and commercial, using 123-net mailservers and/or promoting a website or websites hosted on 123-net’ servers or hosted on a remote server to which 123-net is web-forwarding traffic, then 123-net has the right to unilaterally remove your account. Furthermore we reserve the right to charge for the use of our resources and staff in dealing with the consequences of such mass mailings.