DOMAIN NAMES AND SERVICES AGREEMENT
This Agreement is made on the date indicated in the exchange of e-mails or other correspondence between the Parties BETWEEN the Customer whose details are set out in the exchange of e-mails or other correspondence between the Parties (the "Customer") and INFINITE INNOVATIONS LTD trading as "Headpoint" (registered in England under number 3352545) whose registered office is at 157 Chelsea Road, Sheffield, South Yorkshire, S11 9BQ (the "Supplier").
In this Agreement unless the context otherwise requires:-
means this Agreement as amended from time to time;
means pure economic loss, loss of profit, loss of business and like loss;
means a domain name that is a New Domain Name or else a domain name that is the subject of Services provided pursuant to this Agreement;
"New Domain Name"
means a new domain name ordered by the Customer as indicated in the exchange of e-mails or other correspondence between the Parties;
"Intellectual Property Right"
means a patent, right in a design, copyright, trade mark and any other intellectual property right whether or not registered or capable of registration;
"Loss of Data"
means a loss of or corruption to data or programs;
means the services of applying for New Domain Names together with any other services provided by the Supplier to the Customer
"Supplierís web site"
means a web site provided by or on behalf of the Supplier and which the Customer is permitted to use (and whether using a Domain Name provided by the Supplier or otherwise);
means charges to be calculated by the Supplier in accordance with the Supplier's standard rate for time, materials, travel, accommodation and subsistence from time to time prevailing;
means a person, partnership, company or any other undertaking not being The Supplier or The Customer.
1.2 Reference in this Agreement to a clause is to a clause of this Agreement.
1.3 The index and the headings in this Agreement shall not affect the construction of this Agreement.
1.4 In this Agreement the use of the plural shall include the singular and the use of the singular shall include the plural and reference to the whole shall include a reference to any part.
2. SCOPE OF WORK AND SERVICES
2.1 The Supplier agrees to apply for New Domain Names on behalf of the Customer at the appropriate registry. The Supplier agrees to perform the Services to the Customer. For the avoidance of doubt, the Supplier is free to decline to accept any order from the Customer and the ability of the Customer to read the provisions of this Agreement shall not be taken by the Supplier to be an acceptance of the Customerís order.
2.2 The Supplier shall apply for the New Domain Names the Customerís request for the same. The Supplier makes no warranty that any New Domain Name is available. The Customer should be aware that there is a delay between the time of the Customerís request for a New Domain Name or a change in a Domain Name and the Supplier applying for that Domain Name (or change) and the registration agency receiving and processing the Supplierís request. Accordingly, the Supplier accepts no responsibility for the non-availability of any Domain Name caused by that delay or for any other reason howsoever arising.
2.3 The Supplier shall carry out the Services with reasonable skill and care in accordance with the standard reasonably to be expected of persons performing similar services.
2.4 The Supplier shall have no liability to the Customer for any failure to provide the Services to the extent that such failure results from any breach by the Customer of its obligations under this Agreement. Where such breach renders performance of the Services by the Supplier impossible, or not possible without the Supplier incurring additional expense, the Supplier shall be entitled to suspend performance of the Services until such breach is rectified provided that where the Supplier continues to provide the Services in such circumstances it shall be entitled to reimbursement on demand from the Customer of all proper additional expenses incurred in so doing.
2.5 Where the Customer requests the Supplier to provide Services, and the Supplier agrees to perform such Services, the Customer shall pay to the Supplier additional remuneration in accordance with the fixed sum specified on the Supplierís web site. Where no sum is so specified, the Supplier shall levy charges at the daily consultancy rate applicable to the relevant employee or on such other terms and rates as the Parties shall agree at the time. Nevertheless, the Supplier shall, at the Supplierís option, be under no obligation to perform such additional services until the terms of the provision of those Services have been agreed in writing or, at the Supplierís option exchange of e-mail.
2.6 The Supplier will use reasonable endeavours to complete the Services by any dates quoted for completion but any such dates are estimates only and the Supplier will not be liable to the Customer in respect of any failure to complete the Services by such dates.
2.7 The Supplier shall be entitled to employ sub-contractors for the provision of all or part of the Services and to change those sub-contractors. Without limitation where the Supplier uses a Third Party to collect credit card payments from the Customer, the Supplier shall not be responsible for any error, negligence or fraud committed by that Third Party collection agent.
2.8 The Supplier undertakes to remedy promptly and free of charge any faulty work which is demonstrated by the Customer to arise from a failure by the Supplier to perform the Services in accordance with this Agreement (other than any application for any Domain Name or change that is unsuccessful) and which is reported to the Supplier in writing within sixty (60) days after the performance of those Services. Provided the Supplier then rectifies such faulty work within a reasonable period of time, the Supplier shall have no other liability of any kind in respect of or arising from such failure. If a claim under this clause 2.8 is found upon investigation not to be within the Supplierís responsibility, the Supplier may charge the Customer for all additional costs and expenses incurred by the Supplier in consequence of such investigation.
2.9 Where the Customer provides data to the Supplier in order for the Supplier to perform the Services, the Customer shall ensure that the Supplier will be entitled to use any of that data which is personal data.
2.10 The Customer shall promptly check that any confirmation sent to the Customer concerning a transaction (including without limitation relating to the purchase or change of a Domain Name) is correct. The Supplier shall not be liable for any inaccuracy in an application for a change in a Domain Name where the Customer could have checked that confirmation and discovered that inaccuracy but failed to do so.
3.1 The Customer shall pay the Supplier a fee calculated as set out in the exchange of e-mails or other correspondence between the Parties and in addition, will reimburse the Supplier for travel, accommodation, subsistence and other incidental expenses incurred by the Supplier in the provision of the Services at cost, subject to the Supplier producing reasonable supporting evidence. All fees exclude VAT, which shall be paid in addition to the Supplier by the Customer where applicable on production of the appropriate invoice.
3.2 In general, the Supplier requires payment in advance. Where the Supplier agrees to give the Customer credit, the Customer shall pay the Supplier for all for all Services within thirty (30) days of the date of the invoice therefor. The Supplier may require the Customer to pay in advance for any Service before providing that Service. The Supplier will be entitled to render invoices at any time on or after the Services have been supplied or associated fees and expenses have been incurred. The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Customer and shall pay all amounts due to the Supplier pursuant to this Agreement without making a deduction of any kind.
3.3 The Supplier current fees are those displayed on the Supplierís web site. The fee rates shown may be changed at any time by the Supplier displaying new fee rates on its web site. The Customer shall then be obliged to pay fees at the new rates.
3.4 If the Customer fails to pay all or part of the fees on the due date for payment, the Supplier shall be entitled (without prejudice to any other right or remedy it may have):-
3.4.1 withhold the supply of the Services until such payment is made;
3.4.2 suspend the performance of any obligation owed by the Supplier under this Agreement until such payment is made; and/or
3.4.3 require payment in full by the Customer for all the Services before supplying those Services.
3.5 The Supplier reserves the right to charge interest to the Customer on any sums, fees or other charges payable under this Agreement which are not paid on the due date and such interest may be charged (as well after as before a judgment) at the rate of three per cent (3%) per annum above the base rate of Co-operative Bank plc from time to time subsisting: such interest to accrue on a daily basis.
4. CONFIRMATION, LIEN AND SERVICES
4.1 The Supplier shall be entitled, at the Supplierís option, not to commence the Services until the Supplier receives a confirmation from the Customer of the scope of the Services. At the Supplierís option the Customer shall provide such confirmation to the Supplier in writing, by e-mail or in such other manner as the Supplier shall require.
4.2 Such confirmation shall be solely for the benefit of the Supplier, and the Customer shall be equally bound by the provisions of this Agreement in respect of the Services where the Supplier chooses not to obtain such a confirmation. The Customer shall have no cause of action (whether in negligence, breach of contract or otherwise where the Supplier fails to obtain such confirmation).
4.3 Pending payment in full for the New Domain Names and the Services, the Supplier shall be entitled to exercise a lien over the Domain Names. Without prejudice to any other right or remedy of the Supplier, where the Customer fails to pay for a New Domain Name within thirty (30) days of a notice requiring the Customer so to do, the Supplier shall be entitled to sell that New Domain Name to a Third Party. In addition to recouping its out-of-pocket costs for obtaining the New Domain Name and ancillary to the sale, the Supplier shall be entitled to retain any profit it obtains from such sale.
4.4 At any time following payment in full for the Services relating to Domain Names, the Supplier shall use its reasonable endeavours to assign control of the Domain Names to the Customer or to an Internet Service Provider or other agent of the Customerís choice. Where required by the Supplier, the Customer shall confirm to the Supplier that assignee in writing, by e-mail or in such other manner as the Supplier shall require. Pending such transfer, the Customer may use the Domain Name hosting and e-mail facilities offered by the Supplier to the Customer and paid for by the Customer.
4.5 Any such confirmation shall be solely for the benefit of the Supplier, and not the Customer. The Customer shall have no cause of action (whether in negligence, breach of contract or otherwise where the Supplier fails to obtain such confirmation).
4.6 Nothing in this Agreement shall require the Supplier to give the Customer credit at any time and the Supplier may require the Customer to pay in advance for any Domain Name or Service.
4.7 The Customer shall have no rights to cancel or change an order for a Domain Name or a request for the provision of services, once given to the Supplier. The Supplier may however, in its absolute discretion, agree to do so.
4.8 The Customer is advised not to use any Domain Name until receipt by the Customer of a notice from the Supplier confirming that registration of the Domain Name or the change associated with a Domain Name (as the case may be is complete). The Supplier makes no warranty as to the suitability or trade mark availability of any name obtained by the Supplier for the Customer as a Domain Name.
4.9 The Customer agrees fully and effectually to indemnify the Supplier from and against all loss, costs, charges, claims, actions or demands, suffered or incurred by the Supplier directly or indirectly resulting from any claim by a Third Party as to ownership or other rights to use a Domain Name where one has been registered by or transferred to the Supplier or arising in any way by the Customer infringing (whether innocently or knowingly) the rights of a Third Party in the provision by the Supplier of the use of a Domain Name to the Customer.
5. HOSTING AND OTHER SERVICES
5.1 Where the Customer has paid for Domain Name hosting or e-mail forwarding or retention services from the Supplier, then at any time following payment in full for those services, and when the Customer wishes to terminate those services, the Supplier shall use its reasonable endeavours to assign control of the same to the Customer or to an Internet Service Provider or other agent of the Customerís choice. Where required by the Supplier, the Customer shall promptly confirm to the Supplier that assignee in writing, by e-mail or in such other manner as the Supplier shall require.
5.2 Where the Supplier supplies the Customer Domain Name hosting and e-mail facilities, then the following shall apply :
5.2.1 The Customer is legally and solely responsible for the content of information stored on the Supplierís web site using those facilities. In particular, but without limitation, the Customer will be solely liable if such information breaches the intellectual property rights (e.g. the trade secrets, trade marks or copyright) of any Third Party or if it is obscene, abusive, defamatory or otherwise unlawful in any way. The Customer agrees fully and effectually to indemnify the Supplier from and against all loss, costs, charges, claims, actions or demands, suffered or incurred by the Supplier directly or indirectly resulting from the information stored on the Supplierís web site using those facilities, from any use by or with the authority of the Customer of the Customerís Domain Name or from the provision of the Services by the Supplier to the Customer.
5.2.2 The Supplier is not able to and does not seek to examine the information posted on the Supplierís web site by third parties. If any material which is posted is subsequently found to breach the intellectual property rights (e.g. the trade secrets, trade marks or copyright) of any Third Party or if it is obscene, abusive, defamatory or otherwise unlawful in any way, the Supplier reserves the right in its absolute discretion to remove such material without prior warning. The Supplier also reserves the right to disclose such material as required by law from time to time or as evidence in any legal proceedings.
5.2.3 The Supplier will provide the Customer with a password to access those Domain Name hosting and e-mail facilities. The Customer is responsible for maintaining the confidentiality of its password and for ensuring that it is not mis-used. If the Customer becomes aware that any unauthorised person has obtained access to the Customerís password, the Customer shall promptly notify the Supplier. Until the Customer notifies the Supplier and has received an acknowledgement from the Supplier, the Customer is liable for all use made of the Customerís password, whether authorised by the Customer or not.
The Customer hereby warrants that it will not use the Domain Names, Supplierís web site or Services provided by the Supplier for any purpose which is illegal or immoral or in a way exceeding the permitted monthly allowance of permitted data transfer or bandwidth or to publish any material which results in any claim being threatened or brought against the Supplier; for the purposes of spamming; or otherwise than as permitted by this Agreement. Without prejudice to any other right or remedy of the Supplier, the Supplier reserves the right to suspend any Services to a Customer who is in breach of this clause
5.2.4 provided that nothing in this Agreement shall impose a duty on or expectation that the Supplier will check or monitor the Customerís use of the Customerís Domain Names or the Supplierís web site.
5.2.5 The Supplier shall notify the Customer prior to the renewal date of the Domain Name hosting and e-mail facilities of the charge for renewal of those facilities. The Customer shall notify the Supplier of its acceptance of those renewal terms within seven (7) days of receipt of that renewal notice. Where the Customer declines to renew those facilities then the Supplier shall use its reasonable endeavours to assign control of the same to the Customer or to an Internet Service Provider other agent of the Customerís choice as provided for in clause 5.1 but without limitation, the Supplier shall have no obligation where the Customer fails to provide the Supplier with information as to the identity of the assignee in a timely manner.
5.2.6 The Supplier reserves the right to terminate all or part of the Services with or without prior notice. The Customer agrees that the Supplier shall be under no liability to the Customer in relation to any loss suffered as a result of any suspension, termination or withdrawal of all or part of the Services, the Supplierís web site or the Customerís access to it.
5.3 Where the Supplier provides the Customer with Services relating to the location of web pages in search engines, links pages and directories and the like, including without limitation where the Supplier seeks to enhance the position of those web pages in any ranked search result, the Customer accepts that the Supplier does not guarantee that those web pages they will be accepted by those search engines, links pages and directories or that the ranking of the web pages will be increased.
6. LIMITATION OF LIABILITY
6.1 Subject to the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise by general law into this Agreement or relating to the Services are hereby excluded.
6.2 The Supplier's charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Agreement. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that otherwise the amount of damages awardable to the Customer for a breach by the Supplier of this Agreement may be disproportionately greater than the price of the Services.
6.3 The following provisions in this clause 6 limit the Supplier's entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:-
6.3.1 a breach of the Supplier's contractual obligations;
6.3.2 a tortious act or omission for which the Supplier is liable;
6.3.3 an action arising out of a misrepresentation by or on behalf of the Supplier; arising in connection with the performance or contemplated performance of this Agreement.
6.4 The total liability which the Supplier shall owe to the Customer and in respect of all claims arising pursuant to this Agreement shall not exceed the aggregate monies paid by the Customer to the Supplier pursuant to this Agreement.
6.5 The Supplier shall in no circumstances be liable to the Customer for any Consequential Loss.
6.6 The Supplier shall in no circumstances (whether before or after termination of this Agreement) be liable to the Customer for any Loss of Data and the Customer shall at all times keep adequate back-up copies of the data and programs held or used by or on behalf of the Customer.
6.7 The Customer shall only be entitled to bring a claim against the Supplier where the Customer issues legal proceedings against the Supplier within the period of twenty four (24) months commencing on the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim.
6.8 Without limitation :
6.8.1 where the Supplier uses a Third Party to collect credit card payments from the Customer, the Customer accepts that the Supplier shall not be responsible for any error, negligence or fraud committed by that Third Party collection agent;
6.8.2 where the Supplier provides e-mail forwarding services to the Customer, the Supplier makes no guarantee regarding the time within which such forwarding will occur and accordingly accepts no liability for any delay in such forwarding, howsoever occurring; and
6.8.3 where the Supplier provides web hosting or e-mail forwarding or retention services to the Customer, the Customer accepts that the Supplier obtains those services itself from Third Parties and accordingly that the Supplier makes no guarantee regarding the bandwidth, point of presence or availability of such services save where the Supplier has entered into a separate written arrangement for (and the Customer has paid for) the provision of a particular amount of bandwidth, point of presence or availability in which case the Supplier shall use its reasonable endeavours to provide the same.
6.9 Notwithstanding anything to the contrary contained in this Agreement, the Supplier's liability to the Customer for:-
6.9.1 death or personal injury resulting from the negligence of the Supplier, its employees, agents or sub-contractors;
6.9.2 damage suffered by the Customer as a result of a breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and
6.9.3 damage for which the Supplier is liable to the Customer under Part I of the Consumer Protection Act 1987 shall not be limited save that nothing in this clause 6 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.
6.10 The Customer shall keep the Supplier fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from any results produced by the Services (including without limitation any goods supplied as part of or as a result of the Services) or the use to which they may be put (whether by the Customer or a Third Party) and in respect of any loss, damage, expense or injury sustained by any Third Party howsoever caused where such loss, damage, expense or injury arises out of the Services or those goods (including without limitation arising out of a defect in those goods).
6.11 The provisions of this clause 6 shall survive the termination of the whole or a part of this Agreement.
7. Force Majeure
7.1 Neither Party shall be liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement (other than an obligation to pay monies) due to force majeure which expression for the purposes of this Agreement means any cause beyond the reasonable control of the party in question including without limitation governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the party taking advantage of this clause 7, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions or Act of God.
7.2 The Party taking advantage of this clause 7 shall at all times use reasonable endeavours to mitigate the severity and adverse effect of the force majeure event.
The illegality, invalidity or unenforceability of any clause or part of this Agreement will not affect the legality, validity or enforceability of the remainder. If any such clause or part is found by any competent court or authority to be illegal, invalid or unenforceable the Parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
The Customer shall not transfer, mortgage or charge this Agreement or any of its rights, benefits or liabilities under this Agreement (or purport to do so) without the previous consent in writing of the Supplier (which consent may be given or withheld at the absolute discretion of the Supplier). The Supplier may assign this Agreement as it sees fit.
10. Amendment and Waiver
10.1 No amendment of this Agreement shall be binding unless recorded in writing or by e-mail.
10.2 The failure of either Party at any time to enforce a provision of this Agreement shall not be deemed a waiver of such provision or of any other provision of this Agreement or of such Party's right thereafter to enforce any provision of this Agreement.
11.1 Any demand, notice or communication required under this Agreement may be served by e-mail to the last known e-mail address of the Party to whom that notice or communication is addressed and if so served shall be deemed to have been duly served 24 hours after being properly transmitted. The Customer shall promptly inform the Supplier in any change of the Customerís e-mail address. The Customer shall be responsible for ensuring that the Customer has at all times notified a current, usable e-mail and postal address to the Supplier. Where the Supplier so wishes, the Supplier may optionally serve any demand, notice or communication on the Customer by post to the last known address of the Customer and if so served shall be deemed to have been duly served 24 hours after being sent by first class mail.
12. Entire Agreement and Representations
12.1 This Agreement supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of this Agreement including without limitation all documents proffered by the Customer and relating to the subject matter of this Agreement.
12.2 The Parties acknowledge that in entering into this Agreement they have not relied upon any representations other than those reduced to writing in this Agreement. In particular but without limitation, the Customer acknowledges that the general advice and assistance and prices provided on the Supplierís web pages concerning domain names and the services offered by the Supplier, while provided in good faith, are subject to constant change and are provided for general information purposes only and accordingly that the Supplier does not accept any liability for any inaccuracy contained therein. The provisions of this clause 12.2 shall not apply to any fraudulent misrepresentation.
12.3 The Customer, in entering into this Agreement also agrees to be bound by the provisions of the rules of and the appropriate agreements relating to the use of the appropriate domain name registries and of the agents used from time to time by the Supplier for the registration of the Domain Names and changes in Domain Name registrations including without limitation the rules of Nominet UK (http://www.nominet.uk/go/terms) (for domain names ending in the suffixes ".co.uk", ".net.uk", ".org.uk", ".ltd.uk" and ".plc.uk") and the Tucows Registration Agreement (http://www.headpoint.com/terms/appendixa.htm) relating to Tucows International Corporation (for all other domain names purchased through us) as amended from time to time. Click on the links for a copy of those agreements and rules, as they subsist from time to time. In the event of any conflict between the provisions of this Agreement and the provision of those rules then the provisions of this Agreement shall prevail. The customer agrees to abide by the ICANN domain name policy (http://www.icann.org/dndr/udrp/policy.htm).
12.4 In addition, the Customer shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority from time to time in force and to which the Customer may become subject as a result of the provision of Domain Names and Services by the Supplier. The Supplier is not liable for any changes to those the terms and conditions.
13.1 The copyright and all other intellectual property rights whatsoever in all materials developed under this Agreement including, without limitation, all computer programs used by or accessible by the Customer on the Supplierís web site are and shall remain vested in the Supplier unless expressly agreed in writing otherwise. The Customer shall do all such acts and things as the Supplier may reasonably require for the purpose of preserving or perfecting such vesting.
13.2 In performing the Services, the Supplier is acting as an independent contractor. Nothing in this Agreement shall constitute, or be deemed to constitute, a legal partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, either Party the agent of the other party for any purpose.
13.3 The Supplier undertakes to treat as confidential all information concerning the Customer or those of its customers that is a business secret. This obligation shall not have effect in relation to any such information disclosure of which the Supplier reasonably believes is not confidential or which comes into the public domain otherwise than by the unauthorised disclosure of the Supplier. The Supplier shall treat as confidential any domain name searched but not applied for by the Customer for a period of thirty (30) days. Where, as part of the Services, the Supplier provides suggestions for domain names to the Customer, the Supplier shall treat as confidential any domain names searched but not applied for by the Customer for a period of sixty (60) days. The Supplier shall not be required to treat those domain names as confidential after those periods and, without limitation, may itself apply for any such domain name after those periods.
13.4 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract and this contract shall not confer any right on a Third Party under that Act or otherwise.
13.5 The Customers statutory rights are not affected by this contract.
14. Law and Arbitration
14.1 The formation, construction, performance, validity and all aspects whatsoever of this Agreement shall be governed by English Law. Subject to clause 14.2, the Parties hereby submit to the non-exclusive jurisdiction of the English courts.
14.2 Certain disputes (including the governing law and jurisdiction for those disputes) regarding the registration and control of domain names must be settled by the provisions of the rules of the appropriate domain name registries including without limitation the rules of Nominet UK (http://www.nominet.org.uk/terms.html) and the Tucows Registration Agreements (http://www.headpoint.com/terms/appendixa.htm and http://www.headpoint.com/terms/infoexhibita.htm and http://www.headpoint.com/terms/bizexhibitb.htm) relating to Tucows International Corporation as amended from time to time. The customer agrees to settle those disputes accordingly and to abide by the decision of such settlement procedures.