GENERAL TERMS AND CONDITIONS
These General Terms apply to all Goods and Services provided by Umbrellar Limited and any other company in the Umbrellar Group (as defined below) (Umbrellar) to any person (each a Customer).
1. SERVICES - GENERAL
1.1 Agreement: All Goods and Services will be supplied by Umbrellar upon the specific terms applicable to those Goods or Services (specific service terms) and these General Terms (together the Agreement).
1.2 Conflict: If there is any conflict between these General Terms and the specific service terms, the specific service terms will prevail.
1.3 Service confirmation: Umbrellar will give the Customer an order, a set up email or other written confirmation detailing the Services to be supplied and the commencement date. The Customer is deemed to have accepted, and be bound by, the Agreement from the commencement date.
1.4 Fixed term arrangements: If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 9.1 will apply in regard to termination.
1.5 Commencement of Services: Umbrellar will use its reasonable endeavours to commence the Services on the commencement date, provided that Umbrellar will not be liable for any delay in doing so resulting from any act or omission of the Customer or any other person, including any failure by the Customer or any other person to supply information, inputs, hardware, software or other systems necessary to commence the Services.
1.6 Variations: If the Customer wishes to change the Services, Umbrellar will provide a further written confirmation pursuant to clause 1.3, which will supersede any previous written confirmation.
1.7 Service level: Where applicable, Umbrellar will use its reasonable endeavours to supply the Services to the applicable service level specified in the specific service terms.
2.1 Payment: The Customer will pay (in New Zealand currency) all applicable fees and charges (without deduction or set off) in the manner specified in the specific service terms, or if no payment method is specified, then as follows:
(a) for Goods or Services to which a monthly fee applies, the fee must be paid in advance before the first day of the month for which it applies. If Services commence intra month, the fees for that month will be added to the fees payable for the following calendar month; and
(b) for Goods or Services to which a one off fee applies, including fees payable for support and other services that are not included in any set charges, payment must be made within 20 days after supply, unless Umbrellar requires otherwise.
2.2 Credit card payments: Payments by credit card will incur a surcharge.
2.3 Cheque payments: If the Customer's cheque is returned by the bank as unredeemable, the Customer will be deemed to be in default of its payment obligations and liable for a returned cheque charge of $25.
2.4 GST/taxes: The Customer will pay goods and services tax (GST) and all other applicable duties and taxes. Umbrellar will advise the Customer of the GST payable on its invoices.
2.5 Variations: Umbrellar may change its charges and fees, or any pricing structure, at any time upon written notice to the Customer, provided that such change will not take effect until one month after Umbrellar gives notice. If the Customer does not accept the change, it may terminate the Agreement pursuant to clause 9.1.
2.6 Interest: Accounts in default are subject to a late payment charge of $25 , and interest at a rate of 2% above Umbrellar's bank's commercial overdraft rate, from the date payment was due to the date Umbrellar receives payment in cleared funds.
2.7 Withholding payment: The Customer shall not withhold or set off any amount payable to Umbrellar.
2.8 Third party charges: Unless Umbrellar agrees otherwise in writing, the Customer must pay all fees and other charges of those third parties engaged by the Customer or Umbrellar in relation to the performance of the Services, including services relating to the installation of telephone lines, internet or any equipment.
2.9 Enforcement costs: The Customer is liable for all costs and expenses (including all legal costs and expenses incurred on a solicitor/client basis) incurred by Umbrellar in the enforcement of any of its rights under the Agreement.
2.10 Deposit: Umbrellar may require the Customer to pay a security deposit of an amount specified by Umbrellar before providing any Goods or Services. Umbrellar may keep all or any of the deposit as compensation for any costs, losses or liability suffered or incurred by Umbrellar due to the acts or omissions of the Customer, or any of its employees, agents, contractors or any other person for whom the Customer is responsible. Umbrellar will return the balance once it is satisfied the Customer has complied with all its obligations under the Agreement.
2.11 Refunds: If the Customer terminates this Agreement, it may claim a refund of any overpayment or of any pre-paid fees which are unused as at the date of termination. Any claim for a refund must be received by Umbrellar within one (1) month from the date of termination of Services. No refunds will be given for claims received outside of this period. It is the Customer's responsibility to ensure that any direct credit instructions are terminated at the time its Services are terminated. Refunds for overpayment (where this Agreement has not been terminated) will be paid as credit notes against future invoices.
3. ACCEPTABLE USE POLICY
3.1 Compliance: The Customer must at all times:
(a) comply with the terms of this Agreement, including any specific service terms and third party software terms incorporated within it;
(b) comply with all laws applicable to the use of the Goods and Services;
(c) ensure the Customer holds, maintains and complies with all software licenses relating to the use of the Goods and Services;
(d) refrain from transferring, storing or using offensive, unlawful or objectionable materials or images;
(e) refrain from engaging in spamming, attacking or any other form of malicious or unlawful conduct;
(f) refrain from engaging in any other conduct, which in Umbrellar's view, affects, or may affect, Umbrellar's ability to provide Goods or Services to the Customer or to any other person, or causes, or may cause, harm or loss to Umbrellar or any other person.
3.2 Prohibited publications: Without limiting clause 3.1(a), the Customer must not publish, transmit, store or file the following content when using the Goods or Services (including pictures, links and texts):
(a) any material, which in Umbrellar's view, breaches or infringes, or may breach or infringe, Umbrellar or any other person's copyright, or trademark, patent, design or other rights;
(b) any material that is defamatory or unlawful;
(c) any material that is intended to cause harm to an individual or group of individuals;
(d) any material which, in Umbrellar's view, is or contains anything obscene, pornographic or offensive, including links to any such material;
(e) distribution lists to be used via unsolicited email or other mass electronic mailing; or
(f) IRC clients, bots, servers.
3.3 Removal of content: Umbrellar exercises no control whatsoever over the content of the information passing through Umbrellar's servers or transmitted or stored using the Services, and does not monitor its customers' websites or use of Services. Umbrellar may remove or suspend any content or information the Customer stores or publishes using the Services ("Content"), or suspend any Goods or Services supplied to the Customer, if Umbrellar:
(a) receives a complaint alleging that the Content is defamatory, infringing, threatening, harassing, obscene or breaches applicable laws (including the Harmful Digital Communications Act 2015); or
(b) is required to do so under applicable laws; or
(c) otherwise considers (acting reasonably) that the Content breaches this Agreement or applicable laws.
Umbrellar will use reasonable endeavours to notify the Customer if it removes the Customer's Content pursuant to this Agreement, using the billing contact details provided by the Customer from time to time. The Customer will have the right to respond to any complaint made to, or decision taken by, Umbrellar. If Umbrellar has removed Content as a result of a third party complaint, the Customer's right to respond creates no obligation on Umbrellar to reinstate the Content. Umbrellar will not be liable to pay any refund of service charges if it takes any action under this clause 3.3, nor shall it be liable for any damages, costs, harm or loss suffered as a result of any actions taken hereunder.
4. ACCOUNT MANAGEMENT
4.1 Account information: The Customer must maintain the confidentiality of the Customer's user name, login, password, and any other account information and/or identifier provided to the Customer in relation to the Services.
4.2 Use of account:
(a) System accounts cannot be transferred or used by anyone other than the Customer. The Customer accepts complete responsibility for all use of its account and of the Customer's identifier(s), and Umbrellar is entitled to rely entirely upon use of any password or other identifier as evidence of the Customer's identity and authority.
(b) No more than one login session may be used at any time by the Customer or any system account. If the Customer has multiple accounts, the Customer is limited to one login session per system account at any time. User programs may be run only during login sessions.
4.3 Deletion of Customer data: The Customer agrees that Umbrellar may delete all data, files or other information that is stored in the Customer's account if the Customer's account with Umbrellar is terminated, for any reason, by either Umbrellar or the Customer. It is the Customer's responsibility to back-up and maintain any data, files and other content or information stored in the Customer's account or using the Services.
5.1 Ownership: The Customer shall at all times retain ownership of the Customer Information and Umbrellar shall at all times retain ownership of the Umbrellar Information, including for the avoidance of doubt, Umbrellar's Intellectual Property.
5.2 Customer Representation: The Customer represents and warrants that it has the necessary rights to the Customer Information and any data, software, programmes or services that it uses from time to time in connection with its access to or use of Goods or Services supplied by Umbrellar.
5.3 Use: Subject to clause 11.4, the Customer and Umbrellar may only use each other's Confidential Information in relation to the use, provision and performance of the Goods and Services. Each party must use their best endeavours to keep the other party's Confidential Information secure and at all times confidential.
(a) No party shall disclose any of the other party's Confidential Information to any person, and must also ensure their employees, agents, and contractors do not disclose such information, except as required for the proper use and performance of the Goods and Services, and then on a confidential basis.
(b) The parties will immediately inform the other if they become aware or suspect there has or could be an unauthorised disclosure of Confidential Information, or they are required by law to disclose it.
5.5 Expiry/termination: Upon the expiry or termination of the Agreement, the parties will either return or destroy each other's Confidential Information (at the option of the owner) and all copies of it, other than information to be retained for audit or regulatory purposes.
5.6 Publication of information:
(a) The Customer is responsible for all information and material transmitted, distributed or accessed by them.
(b) Umbrellar does not check, monitor or vet any information transmitted, distributed or made available through the servers and networks provided or access as part of the Services. The Customer engages in these activities at its own risk.
5.7 Joint promotion: Subject to clause 11.4, the Customer permits Umbrellar to publicise the business relationship between it and Umbrellar for marketing and promotional purposes, excluding confidential and commercial terms relating to the particular Goods and Services provided to the Customer.
5.8 IP addresses: Umbrellar retains control and ownership of all IP numbers and addresses that may be assigned to the Customer, and Umbrellar may at any time change or remove any IP numbers or addresses.
6.1 Provision of Services: Umbrellar shall not be liable for any interruption or delay in the provision of any Goods or Services as a consequence of:
(a) any act or omission of the Customer or any third party, including any of the Customer's employees, contractors or agents, any internet service provider or any other utility provider (such as power and telephone companies); or
(b) any cause reasonably beyond Umbrellar's control (Force Majeure) including without limitation fire, earthquake, volcanic eruption, tornado, lightening, flood, storm, any other act god, burglary or vandalism.
6.2 Limitation on liability:
(a) Umbrellar shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for loss of profits, business, revenue, goodwill, opportunity, loss of data or any other form of indirect or consequential loss or damage.
(b) To the maximum extent permitted by law, Umbrellar's total liability under the Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the total fees and charges paid or payable for the applicable Goods or Service giving rise to such liability, in the first 6 month period of the Agreement.
6.3 Implied warranties:
(a) The Customer acknowledges that where the Goods or Services are being provided for business purposes or in trade, the provisions of the Consumer Guarantees Act 1993 are expressly excluded.
(b) All terms, conditions, guarantees or warranties (including implied warranties as to merchantable quality and fitness for purpose), which may be implied into the Agreement are excluded to the maximum extent permitted by law. If legislation implies any such term, condition, guarantee or warranty into the Agreement, and such legislation does not permit the exclusion or modification of it, Umbrellar's liability for any breach is limited, to the maximum extent permitted by law, and at its option, to:
(i) replacing the Goods or paying another person acceptable to Umbrellar to provide similar Goods; or
(ii) repairing the Goods;
(iii) re-performing the Services; or
(iv) paying another person acceptable to Umbrellar to re-perform the Services.
7.1 The Customer indemnifies and holds Umbrellar harmless, to the fullest extent permitted by law, against all costs, expenses (including all legal costs and expenses on a solicitor/own client basis and Taxes), losses and other liability sustained or incurred by Umbrellar, and against any claims made or proceedings brought against Umbrellar as a result of:
(a) a breach of these General Terms, any specific service terms or any software license by the Customer, or any of the Customer's employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(b) any security breach, attack or error caused or made by the Customer or its employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(c) any other act or omission by the Customer, or by any of the Customer's employees, agents, contractors, customers or clients, or any other person for whom the Customer is responsible, including any breach or violation of any law; and
(d) any fault or failure of, or damage to, any of the Customer's property located at Umbrellar's premises.
The Customer shall pay to Umbrellar upon demand, the amount (including all legal costs and expenses on a solicitor/own client basis) which Umbrellar certifies as being required to compensate Umbrellar for the cost, loss, expense or liability it has incurred.
8.1 Suspension: Umbrellar may from time to time, without notice, suspend a Service, or disconnect or deny the Customer access to any Goods or Services:
(a) if the Customer fails to comply with any provision of the Agreement or any software licence, including any failure to pay any charge or other amount payable to Umbrellar within 10 Business Days after the due date for payment, until the breach or failure is remedied to Umbrellar's satisfaction. The Customer shall continue to pay all charges and other amounts payable for the Goods and Services during the period of suspension;
(b) if Umbrellar believes suspension is necessary to preserve or protect any person or property, including the information or property of another customer;
(c) or suspension is required by law; or
(d) in accordance with clause 3.3 of these General Terms.
8.2 Notice: Umbrellar will endeavour to give the Customer at least two Business Days prior notice by email if it intends suspending the Goods or Services due to charges or other amount being overdue.
9.1 Notice: Unless the Goods and Services are to be provided for a fixed term, the Agreement may be terminated by either the Customer or Umbrellar giving the other at least 30 days' prior written notice.
9.2 Termination for breach: Umbrellar may terminate the Agreement immediately upon written notice to the Customer if:
(a) the Customer fails to pay any amount owing to Umbrellar on the due date for payment;
(b) the Customer breaches any provision of the Agreement or any software license, and in Umbrellar's opinion such breach is not capable of remedy, or if in Umbrellar's opinion it is capable of remedy, the Customer fails to remedy the breach within seven Business Days after receiving written notice of the breach from Umbrellar;
(c) Umbrellar is instructed to do so by any law enforcement or government agency;
(d) the Customer ceases or threatens to cease to conduct its business, or disposes of, or threatens, or agrees to dispose of, all or a substantial part its assets;
(e) A receiver, administrator or similar official is appointed in respect of the Customer or its assets;
(f) the Customer is unable to pay its debts as they fall due or is deemed to be so under any law;
(g) the Customer stops or suspends payment of any of its indebtedness or threatens to do so, or begins negotiations or takes proceedings to reschedule any of its indebtedness;
(h) Umbrellar is unable to provide the Services for a period exceeding one week due to a Force Majeure; or
(i) any other event occurs which, in Umbrellar's opinion, may have a material adverse effect on the Customer's ability or willingness to comply with the Agreement.
9.3 Consequences of termination: Upon termination pursuant to this clause 9, the Customer will:
(a) immediately pay to Umbrellar all outstanding amounts, and all other amounts payable by the Customer under the Agreement, including interest and Umbrellar's enforcement costs and expenses (including legal costs and expenses on a solicitor/own client basis);
(b) where Goods or Services were to be supplied to the Customer for a specified period, the Customer will immediately pay to Umbrellar all amounts that would have been payable by the Customer up to the expiry of that period; and
(c) immediately return to Umbrellar, all of Umbrellar's equipment, property and all Umbrellar Information.
9.4 Return of Customer property: If applicable, and if requested by the Customer, Umbrellar will return all the Customer's property, equipment and Customer Information in Umbrellar's possession or control to the Customer.
10. AIR NEW ZEALAND AIRPOINTS PROGRAMME
10.1 Umbrellar is a partner of the Airpoints frequent flyer programme run by Air New Zealand Limited (Air NZ). Customers who are enrolled as members of the Airpoints programme may be able to earn Airpoints Dollars when they purchase specified Umbrellar Services or a specified value of Umbrellar Services, in each case as determined by Umbrellar from time to time.
10.2 The Airpoints programme is run by Air NZ and Customers' participation in the Airpoints Programme is subject to Air NZ's Airpoints Terms and Conditions, which are available on its website at http://www.airnewzealand.co.nz/airpoints-terms-and-conditions.
10.3 In the event that a dispute arises regarding the conversion or awarding of Airpoints Dollars by Umbrellar, the Customer should notify Umbrellar of the dispute. Umbrellar will then take reasonable steps to resolve the dispute within five Business Days, or refer the dispute to Air NZ if required.
10.4 The Customer acknowledges and agrees that Umbrellar will provide Air NZ with the following information in respect of each transaction for which Umbrellar issues Airpoints to a Customer:
(a) the Customer's Airpoints number
(b) Location of transaction
(c) Date and time of transaction
(d) Payment method / card type
(e) the Customer's Bank
(f) Products sold – SKU data
(g) Total amount of purchase
10.5 The Customer acknowledges and agrees that Air NZ may use the Transactional Data for profiling and promotional purposes, and for any other purpose that the Customer consents to from time to time with either Umbrellar or Air NZ.
11.1 Variation: Umbrellar may change, amend or replace these General Terms at any time, provided that such changed, amended or new General Terms will not take effect until one month after Umbrellar gives the Customer written notice of it.
11.2 Survival: Clauses 2.1, 2.5, 2.8, 5, 6, 7 and 11.4 survive the termination or expiry of the Agreement.
11.3 Notices: Each party will give any required notice to the other party at the physical or email address last known to the party giving notice. Each notice will be deemed to be effective if, delivered by hand,
immediately, if delivered by post, 3 days after it was posted, and if sent by email, when successfully sent from the sender's email.
11.4 Privacy/use of information: Notwithstanding clause 5, Umbrellar may collect and disclose personal and credit information about the Customer (including the Customer's account information and information about any Customer defaults) to debt collection agencies, credit reporting agencies, Umbrellar's lawyers and accountants, and to any person with which Umbrellar does business, for the following purposes:
(a) if Umbrellar is required to disclose such information to any government or law enforcement agency, or otherwise by law;
(b) obtaining a credit report or other information about the Customer to decide whether to provide Goods or Services to them, to manage the Customer's account with Umbrellar, and/or to recover any amounts payable by the Customer, including in relation to any enforcement or Court action or proceedings;
(c) to provide the Customer with offers or information of other goods or services Umbrellar, or any of those above persons may be able to provide to the Customer, or for other marketing purposes, unless the Customer tells Umbrellar not to in writing, and the Customer authorises those persons to provide such information to Umbrellar.
d) for third parties contracted to perform our services
e) to third party data processing agents to assist us in providing our services to you
f) to third part survey analysis agencies that are contractually obligated to protect the data, to assist us in improving our services
11.5 The Customer acknowledges that information disclosed to credit reporting agencies may be disclosed by them to other third parties as part of their collection and credit reporting services to help those third parties to decide whether to provide goods, services or credit to the Customer or to recover money the Customer owes them.
(a) The Customer must not assign any of its rights or obligations under the Agreement without the prior written consent of Umbrellar. Umbrellar may assign its rights and obligations under the Agreement without the Customer's consent.
(b) Any change in the effective control or management of the Customer or any parent company of the Customer, shall be deemed to be an assignment requiring the prior written consent of Umbrellar, which consent will not be unreasonably withheld.
11.7 Waiver: No waiver or breach of, or failure to enforce, any provision of, the Agreement will in any way limit the right of Umbrellar to enforce and compel strict compliance with the provisions of such Agreement.
11.8 Entire agreement: The Agreement constitutes the entire agreement between the parties as to its subject matter, and to the maximum extent permitted by law, supersedes all previous agreements and understandings on the subject matter.
11.9 Governing law: The laws of New Zealand govern the Agreement.
12. DEFINITIONS AND INTERPRETATION
Business Hours 8.30 am to 5.30 pm from Monday to Friday, but excludes statutory public holidays in Auckland, New Zealand.
Business Day any day that is not a Saturday, Sunday or statutory public holiday in Auckland, New Zealand.
Customer Information all information, content and data about the Customer, its business and its clients which is disclosed to, or acquired by, Umbrellar in the performance of the Services, and includes all data stored on Umbrellar's servers.
Confidential Information Customer Information and Umbrellar Information other than
information that is or becomes:
(a) part of the public domain (other than through any breach of confidentiality by a party);
(b) lawfully known to the recipient on a non-confidential basis before being disclosed;
(c) available to the recipient from another person who is in possession of it lawfully and can disclose it on a non-confidential basis; or
(d) required to be disclosed by law.
General Terms these general terms and conditions as amended from time to time, and includes any replacement terms.
Umbrellar Group means Umbrellar Limited and any of its parent or subsidiaries as may change from time to time.
Umbrellar Information all information, content and data about Umbrellar, its business and its other customers, all information content and data about the business and clients of Umbrellar's other customers, Umbrellar's Intellectual Property, and all information, content and data that is developed by Umbrellar while providing the Goods and Services.
Umbrellar's Intellectual Property all intellectual property in and associated with the business of Umbrellar and its other customers, including all trade names, trade and service marks, discoveries, improvements, systems, specifications, manuals, trade secrets, know-how, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, designs, writings, diagrams, logos, domain names, websites, drawings, copyright materials and the benefit of any applications or registrations in respect of the above and any other intellectual property and industrial property whatsoever and howsoever recorded or stored (if at all).
12.2 Interpretation: In the interpretation of these General Terms, unless the context otherwise requires:
(a) references to the parties include their respective executors, administrators, successors and permitted assigns;
(b) references to a person includes any form of entity including an individual, company, partnership, firm, trust, any central or local government department, and any other entity, or any other association or persons, either incorporated or unincorporated;
(c) words in the singular include the plural and vice versa;
(d) words importing one gender include the other genders;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
(f) headings have been inserted for convenience only and will not affect the construction of the Agreement.
SPECIFIC SERVICE TERMS
These specific service terms must be read in conjunction with Umbrellar's General Terms and Conditions (including all amended and replacement terms) (General Terms), a copy of which is published on Umbrellar's website www.umbrellar.nz.
DEFINITIONS AND INTERPRETATION
1.1 For the purposes of these specific service terms:
(a) Business Hours means 8.30 am to 5.30 pm Monday to Friday except statutory public holidays in Auckland, New Zealand.
(b) Support means all labour provided by Umbrellar other than labour that is not related to Umbrellar's network or hardware, such as labour provided in relation to the Customer's operating system or software.
2.1 Terms used, but not defined, in these specific service terms, have the meaning given to them in the General Terms.
3. WEB HOSTING
3.1 Service description: A shared server environment where customers can upload files via FTP for the purpose of publishing a web site. Web Hosting includes a control panel to manage web site files, related services such as databases and email accounts.
3.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar.
(a) Support services are provided by telephone or email during Business Hours.
(b) After hours services are also available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
(c) Support for the Customer's web site application such as web design, development and code changes are not included in the service.
4.1 Service description: Cloud server hosting is provided as Infrastructure as a Service. It includes virtualised guest servers, storage, backups, firewall and bandwidth, all of which are available on demand. Umbrellar is not responsible for the management of servers supplied by Customers.
4.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar.
(a) Support services are provided by telephone or email during Business Hours.
(b) After hours services are also available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
(c) Support for the Customer's operating systems is not included in the monthly charge.
5. MANAGED ENTERPRISE CLOUD
5.1 Service description: Managed Enterprise Cloud is an Infrastructure As A service which has been built following Enterprise guidelines for production platforms. This service includes virtualised guest services, storage and band width. It is combined with a management service which includes daily snapshot backup, operating system, and standard software patching, and 24 x 7 monitoring and response.
5.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar.
(a) Support services are provided by telephone or email during Business Hours.
(b) Umbrellar provides support for the operating system, standard software and all licences provided by Umbrellar.
(c) Umbrellar will carry out work required on the servers that, in its opinion, will take no more than 15 minutes during Business Hours.
(d) After hours support services are also available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
6. DEDICATED SERVER
6.1 Service description: This is a physical server as specified in its specifications. The server will be connected to the internet at 100Mbit per second. Umbrellar owns the hardware and is responsible for the management of that hardware and the replacement of faulty components.
6.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
(a) Support services are provided by telephone or email during Business Hours.
(b) After hours support services are also available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
(c) Support for the guest operating system is not included in the monthly fees.
7. ENTERPRISE DEDICATED SERVER
7.1 Service description: Enterprise Dedicated Servers are physical services as specified in its specifications. The server will be connected to the internet at 1Gbit per second via dual redundant paths. The server will have redundant power supplies connected to redundant power feeds. Umbrellar owns the hardware, is responsible for management of the hardware, and the replacement of faulty components.
7.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar.
(a) Support services for the Enterprise Dedicated Servers are provided by telephone or email during Business Hours.
(b) After hours support services are also available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
(c) Support for the guest operating system is not included in the monthly fees.
8. DEDICATED SERVER MANAGEMENT
8.1 Service description: Dedicated Server Management an operating system and standard software patching, 24 x 7 monitoring and response, Business Hours support and emergency support of the operating system and standard software.
8.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
(a) Support services for the Dedicated Servers are provided by telephone or email during Business Hours.
(b) Umbrellar provides support for the operating system, standard software and all licences provided by Umbrellar;
(c) Umbrellar will carry out work required on the servers that, in its opinion, will take no more than 15 minutes during Business Hours.
(d) After hours support services are available, provided that fees and charges will be payable by the Customer if Umbrellar is not at fault.
9. NETWORK FIREWALL
9.1 Service description:
(a) A shared redundant pair of network firewalls. The network firewall will block all traffic in or out of the server(s) except where the TCP or UDP port has been specifically allowed. The firewall does not protect against attacks on ports that have been allowed.
(b) One rule change is included per month. Rule changes will be carried out within two Business Days of the request being submitted.
9.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
10. DEDICATED FIREWALL APPLIANCE
10.1 Service description:
(a) A firewall virtual appliance dedicated to the Customer. The functionality of the appliance will change from time to time as specified by the supplier; .
(b) The appliance security updates will be kept up to date by Umbrellar;
(c) Umbrellar will carry out the initial configuration of the firewall based on the requirements as specified by the Customer. It is the Customer's responsibility to inform Umbrellar if the Customer's requirements change and to request the necessary updates to the firewall.
(d) One rule change is included per month. Further changes will be carried out as at Umbrellar's specified or published fees and charges.
10.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar.
11. CONTENT DELIVERY NETWORK (CDN)
11.1 Service description: The CDN is a network of proxy servers around the world caching website and other content. Umbrellar is responsible for managing the CDN and ensuring users fetch content from the nearest point of presence on the network.
11.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
12. FILE GUARDIAN OFFSITE BACKUP
12.1 Service description: File guardian is an agent-based backup service. Files are backed up according to the configuration in the agent. Files are replicated offsite once every 24 hours.
12.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
13.1 Service description:
(a) Umbrellar will provide software licenses as part of the Services.
(b) The licenses must only be used on Umbrellar's offered servers, and must not be used on any other server or for any purpose other than in relation to the Services being provided by Umbrellar. For the avoidance of doubt, such licenses must not be copied, transferred, assigned, sold, or used by any other person.
(c) The Customer must familiarise itself with all terms and conditions of the license and comply with same.
(d) Applicable licence terms and conditions can be found within the software applications to which they relate, and/or at:
goMOBI: [link to Umbrellar Terms page]
Microsoft: [link to Umbrellar Terms page]
SohoLaunch: [link to Umbrellar Terms page]
Spamhaus Data, Data Feed and/or Look-Up Service: [link to Umbrellar Terms page]
13.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
14.1 Service description:
(a) Umbrellar will store the Customer's equipment at Umbrellar's premises at the Customer's risk.
(b) The Customer is responsible for insuring its equipment against loss or damage by fire, earthquake, natural disaster, theft, burglary, weather damage and such other risks as it is prudent to insure against.
(c) Umbrellar will allow the Customer free supervised access to its premises once every calendar month during Business Hours for a duration of 30 minutes, for the purpose of inspecting and maintaining the Customer's equipment. Additional visits will be charged at Umbrellar's specified or published rate.
(d) The Customer must give Umbrellar at least two Business Days' prior written notice of its intention to attend the premises.
(e) The Customer's access to Umbrellar's premises is subject to the Customer complying with all of Umbrellar's directions and instructions, including all health and safety, and privacy policies and procedures.
(f) Umbrellar may refuse access to, or ask the Customer to leave, Umbrellar's premises if Umbrellar believes there is a risk or possible detrimental impact to Umbrellar's business or property, or to its employees, agents, contractors or customers, or any of their property.
(g) The Customer will not damage Umbrellar's premises, or any other equipment located at Umbrellar's premises, including by way of direct contact, vibration, electrical interference or otherwise.
(h) The Customer will indemnify Umbrellar against any loss, cost or damage caused by the Customer's equipment or the Customer's use, installation, inspection, maintenance or removal of its equipment, or by any breach by the Customer of this Agreement.
14.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
15. VIRTUAL PRIVATE NETWORK (VPN)
15.1 Service description: VPN is a client based secure access service that encrypts traffic between the Customer and their servers in Umbrellar.
15.2 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
16. BACKUP & DATA RECOVERY
16.1 Service description: Unless Umbrellar otherwise agrees in writing, backup services are provided as follows:
(a) Virtual servers – operating system and data backup daily and retained for 7 or 28 days;
(b) Dedicated servers - operating system and data backup daily via software agent. Backups retained for 7 or 28 days;
(c) Colocation - no backup service is provided;
(d)Keepitsafe – offsite backup using KIS software
16.2 The Customer is responsible for scheduling, testing, restoring and ensuring the security of backups, other than in relation to Virtual Servers, in which case Umbrellar is responsible.
16.3 Data recovery from any form of backup is charged as labour at Umbrellar's specified or published rate.
16.4 Charges: Umbrellar charges a monthly fee for this service at the applicable rate specified or published by Umbrellar
17. SUPPORT SERVICES
17.1 If Umbrellar has agreed to manage the server, Umbrellar will use its reasonable endeavours to have support services available to the Customer at all times. Server support requests will be charged in 15 minute blocks at Umbrellar's specified or published rates.
DOMAIN NAME TERMS
UMBRELLAR .NZ REGISTRANT AGREEMENT TERMS AND CONDITIONS
Version dated 9 September 2015
1. THE REGISTRAR’S OBLIGATIONS
We agree that we will:
(a) Comply with all .nz policies and accurately represent these to you;
(b) Disclose accurately and completely all our terms and conditions associated with your use of our services to register and maintain a domain name sought to be used by you, including price and billing information;
(c) Comply with your lawful directions in a diligent and timely manner regarding your .nz domain name, (for example, registration, cancellation, amendment, deletion, and associated technical support and billing);
(d) Process any new .nz domain name registrations with the registry within 1 hour from the time we receive all the information required to complete a registration;
(e) Notify you of the registration of your domain name(s), including the details of: the domain name, your contact details, our contact details, the registration period, the unique authentication ID for your domain name and your obligations as a registrant;
(f) Arrange for correction of any error in the information in the register about any domain name registered to you when requested;
(g) Provide to you, or to someone we reasonably believe to be acting on your behalf, the unique authentication ID for your domain name when requested and for no charge;
(h) Use your personal information only as authorised by you;
(i) Take all reasonable steps to safeguard and protect all information about you stored in our databases and system(s);
(j) Comply with any order of any authority having jurisdiction regarding any domain name registered to you;
(k) Use our best endeavours to deal with any complaints you may have about the services we provide for you.
2. THE REGISTRANT’S OBLIGATIONS
2.1 You agree that you will:
(a) Comply with the .nz policies. You agree that you have read and understood the current policies;
(b) Make sure all information you give us is accurate and complete, keep us informed of changes to any information you give us, and that you have the authority to enter into this agreement;
(c) Keep the unique authentication ID for your domain name and any other security information that we give to you confidential, safe and secure;
(d) Satisfy yourself that your use of a domain name will not infringe anybody's intellectual property rights and protect us, and everybody we are in any business relationship with to provide services to you, from any such claim;
(e) Ensure that you only use our services for a lawful purpose;
(f) Ensure that the use of any domain name registered to you does not interfere with other users of the Internet;
(g) Ensure that any order of any authority having jurisdiction regarding any domain name registered to you is complied with;
(h) Protect us, and everybody we have a business relationship with, against any legal action taken against us because of the receipt or use of our services by you or someone you are responsible for, including reliance by us or anybody we have a business relationship with, on information supplied by you.
2.2 Duties of Other Persons: You agree to make sure everyone you are responsible for or who uses a domain name registered to you also meets the above duties.
3. REGISTRATION OF A DOMAIN NAME
3.1 When a domain name in the .nz domain name space is registered to you, or in your name as directed by you, then you agree:
(a) That the following information becomes available to any member of the public:
(i) Your name;
(ii) Your contact details; and
(iii) The domain name, its commencement and expiry dates and addresses/details of the name servers for it, and our name.
(b) The domain name is registered in your name only because no other person has it according to the records of the register; and
(c) Neither we nor anybody else is representing anything else to anybody regarding that domain name. The entry of a domain name in the "who is" database shall not be taken as evidence of anything other than such registration; and
(d) That you protect us and everybody we have a business relationship with to provide services to you, from any claim arising out of the domain name being registered in your name or as you direct.
4. REGISTER IS THE RECORD
4.1 For all purposes the details shown in the register shall be treated as correct and the authoritative record.
5. PAYMENT OF FEES
5.1 You agree to pay for the services we provide for you.
5.2 If you transfer a domain name registered to you to another registrant or to be managed by another registrar, all charges owing to us shall become immediately due and payable on the date of that transfer.
5.3 We may alter our fees from time to time. When we alter them we will send you notice of the alteration 30 days before the new fee takes effect.
5.4 Our usual fees are for Domain Name registration. We may also charge for email and web page hosting provided by us. We will tell you before any additional charge is incurred.
5.5 Our prices are stated in New Zealand dollars and exclude GST.
6. SUSPENSION AND REFUSAL TO SUPPLY SERVICES
6.1 If you do not pay our charges for a domain name registered to you we may:
(a) cancel registration of that domain name; or
(b) refuse to provide a service you request.
7. CANCELLATION OF A DOMAIN NAME
7.1 If we are going to cancel the registration of a domain name registered to you as a result of you not paying our charges relating to that registration, we will give you fourteen days' notice before we initiate action to cancel that domain name.
8. EXCLUSION OF LIABILITY
8.1 We exclude all liability we may have to you for any claim except where we have acted in bad faith.
8.2 This exclusion also applies for the benefit of:
(a) InternetNZ, the registry and any other entity we are in any business relationship with;
(b) Every officer, employee, contractor, agent of us or any entity in clause 8.2(a);
(c) Anyone else we get to perform our duties under any agreement you have with us.
8.3 None of the persons specified above is liable or has to pay you for anything else in connection with or resulting from anything any of us does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us.
8.4 This exclusion applies whatever you are claiming for and in whatever way liability might arise.
8.5 This exclusion does not prevent you getting a court order requiring us to do anything we have agreed to do for you and does not limit any rights you may have under the Consumer Guarantees Act 1993.
9. LIMITATION OF OUR LIABILITY
9.1 We have excluded all other liability we or any of the persons specified in clause 8 may have to you. If any of those persons is ever liable to you and, for any reason, cannot rely on the exclusion of liability set out in clause 8 then this clause applies.
9.2 Where this clause applies, the maximum combined amount the persons specified above (together) will have to pay you and anyone else who uses the services we provide for you (together) is the amount of the last month's fee paid by you under this agreement.
10. LAW AND JURISDICTION APPLYING TO THIS AGREEMENT
10.1 Unless we otherwise agree in writing, this agreement contains all the terms of our relationship and continues to apply no matter where you are located at the time any of the services are provided or where you reside. This will be the case until this agreement is cancelled except to the extent clause 14 says otherwise to the extent legally permitted:
(a) All our services are provided under New Zealand law;
(b) Any claim or dispute arising out of or in connection with this agreement must be instituted within 60 days from the date the relevant service was supplied to you;
(c) Except as otherwise stated, you may take action against us only in a New Zealand court;
(d) Where you or any registrant for whom you act supplies incorrect information regarding a domain name and we incur cost in any matter concerning that name then we may recover the costs incurred by us from you.
11. CANCELLING THE AGREEMENT
11.1 We may cancel or suspend this agreement by giving you one month's notice if you do not meet your duties to us.
11.2 We may end the agreement for any other reason by giving you one month's notice.
12. MORE THAN ONE PERSON
12.1 You are responsible for everybody who you permit to act for you as a registrant. We will take reasonable care to satisfy ourselves that you have permitted those persons to act for you.
13. EACH CLAUSE SEPARATELY BINDING
13.1 Each clause of the agreement you have with us is separately binding.
13.2 If for any reason we, you, or any of the persons specified in clause 8 cannot rely on any clause, all other clauses of it are binding.
14. RIGHTS AND RESPONSIBILITIES THAT CONTINUE
The cancelling of any agreement you have with us does not affect any rights and responsibilities, which are intended to continue or come into force afterwards. These include the rights and duties under 2, 4 - 10, 12, 13, and this clause 14.
UMBRELLAR DOMAIN NAME RESELLER AGREEMENT
This Domain Name Reseller Agreement is between Umbrellar Limited and any other company in the Umbrellar Group (as defined in the General Terms and Conditions) ("Umbrellar"), and you or your agents.
You agree that Umbrellar may modify this agreement in order to comply with applicable law and the terms and conditions set forth by the DNC, NZRS, SRSPlus or ICANN.
You agree to provide your customers with a copy of the Umbrellar Terms and Conditions (all inclusive) when registering or transferring a Domain.
Umbrellar operates a credit system whereby you must have a positive credit balance to perform transactions.
In special circumstances account charging may be allowed, however you will be required to provide a direct debit authority.
When you receive fees from an end-user for a registration or renewal you should not unreasonably delay the processing of the transaction.
2. DOMAIN NAME REGISTRATIONS
You agree to register name holders as the customer who has requested and paid for the Domain.
You may not register Domain names in your own name or use this method to gain an unlawful advantage over a customer from your prior registration.
3. DOMAIN NAME RENEWALS
It is your responsibility to ensure your customer Domain names are renewed.
It is your customers' responsibility to ensure they keep their contact details up-to-date so you can notify them of pending renewals.
The Umbrellar system provides an automated email reminder service which is active by default and can be deactivated.
Regardless of whether the automated email reminders are active the Umbrellar system will notify a customer by email 2 days prior to expiry. The email will be sent from your reseller name and will be sent to the name holder, billing and technical contacts.
4. DOMAIN TRANSFERS
If you are transferring a Domain into Umbrellar you agree that you do so with the name holder's authority and with your assurance that the nameholder understands the impact of such a change.
5. CONTACT INFORMATION
It is your responsibility to ensure your customer provides true and accurate contact details for their Domain registrations and to update details as they may change.
Domains found to be in breach of the requirement to provide true and accurate contact details may be cancelled without warning.
6. DISPUTE RESOLUTION
Each ccTLD has its own dispute resolution policy and by registering a Domain name you and your customers agree to be bound by that suffix's policy.
You agree to not involve Umbrellar in any disputes relating to Domain name ownership, fees or hosting.
For further reading consult the individual ccTLD policies available at www.domainagent.co.nz.
If any dispute relating to a Domain name arises you agree to hold Umbrellar free of any liability for loss of business, loss of profit or damages.
7. DOMAIN PASSWORDS
You agree to generate a UDAI or EPP Code in a reasonable timeframe upon request.
You agree not to withhold a Domain password upon request.
8. FAIR USE
You agree not to use Umbrellar for:
(a) Mass who is queries (for the purposes of marketing activities otherwise)
(b) Activities that defame, harm, harass, abuse or threaten third parties
(c) Activities prohibited by the laws of the territories in which you operate
If found to be in breach of this clause, Umbrellar may terminate service without warning.
If a third party alleges a breach of this clause, Umbrellar may terminate service without warning.
9. CUSTOMER SUPPORT
Umbrellar is a wholesale provider and does not provide end-user support.
The exception is where your customer is unable to make contact with you, in which case we may charge a fee for handling their request.
You agree to provide support to your customers for billing and administration, in a reasonable timeframe.
The exception is change of name holder requests which must be sent to and actioned by Umbrellar.
10. BUSINESS CONTINUITY
Umbrellar has an obligation to all registrants to provide continual uninterrupted service.
Where a Reseller is unable to process renewal transactions (after instructed by a registrant and/or following a renewal payment) due to an inability to credit their reseller account Umbrellar may be forced to establish a direct relationship with the reseller’s customers in order to meet its obligations.
The Reseller agrees that when all options to ensure continuity of the Reseller’s business have been exhausted, Umbrellar may directly contact the Reseller’s customers.
11. PAYMENT PROCESSING
Umbrellar provides one or more gateways for accepting payments, which include, but are not limited to: DPS and Paymex for credit cards, and Queue IDs for offline payments.
Umbrellar does not accept customer payments on your behalf.
12. LIMITATION OF LIABILITY
Except as provided below, all terms, warranties, undertakings, inducements and representations relating to the provision of any Service or goods are excluded and Umbrellar will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service inclusive of any software material hosted or designed by Umbrellar. However, Umbrellar's liability for any breach of such implied term or warranty will be limited at Umbrellar's option to the changes it makes or in any other way permitted by any relevant legislation.
13. ICANN PROVISIONS REGARDING RESELLERS
Resellers must not display the ICANN or ICANN-Accredited Registrar logo, or otherwise represent themselves as Accredited by ICANN, unless they have written permission from ICANN to do so.
Any registration agreement used by reseller shall include all registration agreement provisions and notices required by the ICANN Registrar Accreditation Agreement and any ICANN Consensus Policies, and shall identify the sponsoring registrar or provide a means for identifying the sponsoring registrar, such as a link to the InterNIC Whois lookup service.
Resellers must identify the sponsoring registrar upon inquiry from the customer.
Resellers must comply with any ICANN-adopted Specification or Policy that establishes a program for accreditation of individuals or entities who provide proxy and privacy registration services (a "Proxy Accreditation Program"). Among other features, the Proxy Accreditation Program may require that: (i) proxy and privacy registration services may only be provided in respect of domain name registrations by individuals or entities Accredited by ICANN pursuant to such Proxy Accreditation Program; and (ii) Registrar shall prohibit Resellers from knowingly accepting registrations from any provider of proxy and privacy registration services that is not Accredited by ICANN pursuant the Proxy Accreditation Program. Until such time as the Proxy Accreditation Program is established, we require Resellers to comply with the Specification on Privacy and Proxy Registrations attached hereto.
Resellers' customers must be provided with a link to an ICANN webpage detailing registrant educational information, as per the following link:
In the event Registrar learns that a Reseller is causing Registrar to be in breach of any of the provisions of this Agreement, Registrar shall take reasonable steps to enforce its agreement with such Reseller so as to cure and prevent further instances of non-compliance.
Resellers shall publish on their website(s) and/or provide a link to the Registrants' Benefits and Responsibilities Specification attached hereto and shall not take any action inconsistent with the corresponding provisions of this Agreement or applicable law. We shall use commercially reasonable efforts to enforce compliance with the provisions of the agreement between Registrar and any Reseller that relate to the provisions of Registrar Services.
DOMAIN NAME COMPLAINTS & DISPUTES POLICY
If you believe that Umbrellar Limited or one of our customers has breached one of more of our policies, or if you have a concern regarding our services please contact us by sending an email to [email protected]
1. .nz DOMAIN NAME DISPUTES
When an individual or organisation registers a .nz domain name, they agree to the stated .NZ Terms and Conditions. If you believe a .nz domain name registered with Umbrellar Limited does not comply with these terms or you have a dispute with a nameholder we recommend you take the following steps:
(a) If you are a Umbrellar Limited customer please notify us of the dispute for advice on your options.
(b) Contact the domain registrant to negotiate a resolution.
(c) Seek independent legal advice.
(d) Lodge a formal complaint with The Domain Name Commission's Dispute Resolution Service (http://dnc.org.nz/complaint). Their informal mediation service is free of charge however fees do apply for obtaining an 'expert determination'.
Neither Umbrellar Limited nor the Domain Name Commissioner can get involved in disputes regarding who the true Registrant of a domain name should be, but we will take action as directed either by the Courts or by an Expert Determination given under the Dispute Resolution Service.
2. gTLD DISPUTES
The Uniform Domain Name Dispute Resolution Policy (UDRP) implemented by ICANN applies to all gTLDs.
REGISTRANT RIGHTS AND RESPONSIBILITIES - gTLD
DOMAIN NAME REGISTRANTS' RIGHTS
1. Your domain name registration and any privacy/proxy services you may use in conjunction with it must be subject to a Registration Agreement with an ICANN Accredited Registrar.
(a) You are entitled to review this Registration Agreement at any time, and download a copy for your records.
2. You are entitled to accurate and accessible information about:
(a) The identity of your ICANN Accredited Registrar;
(b) The identity of any proxy or privacy service provider affiliated with your Registrar;
(c) Your Registrar's terms and conditions, including pricing information, applicable to domain name registrations;
(d) The terms and conditions, including pricing information, applicable to any privacy services offered by your Registrar;
(e) The customer support services offered by your Registrar and the privacy services provider, and how to access them;
(f) How to raise concerns and resolve disputes with your Registrar and any privacy services offered by them; and
(g) instructions that explain your Registrar's processes for registering, managing, transferring, renewing, and restoring your domain name registrations, including through any proxy or privacy services made available by your Registrar.
3. You shall not be subject to false advertising or deceptive practices by your Registrar or through any proxy or privacy services made available by your Registrar. This includes deceptive notices, hidden fees, and any practices that are illegal under the consumer protection law of your residence.
DOMAIN NAME REGISTRANTS' RESPONSIBILITIES
1. You must comply with the terms and conditions posted by your Registrar, including applicable policies from your Registrar, the Registry and ICANN.
2. You must review your Registrar's current Registration Agreement, along with any updates.
3. You will assume sole responsibility for the registration and use of your domain name.
4. You must provide accurate information for publication in directories such as WHOIS, and promptly update this to reflect any changes.
5. You must respond to inquiries from your Registrar within fifteen (15) days, and keep your Registrar account data current. If you choose to have your domain name registration renew automatically, you must also keep your payment information current.
POLICY ON TRANSFER OF REGISTRATIONS BETWEEN REGISTRARS
Revision Adopted 25 August 2011
Effective 31 January 2015
A. Holder-Authorized Transfers
1. REGISTRAR REQUIREMENTS
Registered Name Holders must be able to transfer their domain name registrations between Registrars provided that the Gaining Registrar's transfer process meets the minimum standards of this policy and that such transfer is not prohibited by ICANN or Registry policies. Inter-Registrar domain name transfer processes must be clear and concise in order to avoid confusion. Further, Registrars should make reasonable efforts to inform Registered Name Holders of, and provide access to, the published documentation of the specific transfer process employed by the Registrars.
1.1 Transfer Authorities
The Administrative Contact and the Registered Name Holder, as listed in the Losing Registrar's or applicable Registry's (where available) publicly accessible Whois service are the only parties that have the authority to approve or deny a transfer request to the Gaining Registrar. In the event of a dispute, the Registered Name Holder's authority supersedes that of the Administrative Contact.
Registrars may use Whois data from either the Registrar of Record or the relevant Registry for the purpose of verifying the authenticity of a transfer request; or from another data source as determined by a consensus policy.
2. GAINING REGISTRAR REQUIREMENTS
For each instance where a Registered Name Holder requests to transfer a domain name registration to a different Registrar, the Gaining Registrar shall:
2.1 Obtain express authorization from either the Registered Name Holder or the Administrative Contact (hereafter, "Transfer Contact"). Hence, a transfer may only proceed if confirmation of the transfer is received by the Gaining Registrar from the Transfer Contact.
(a) The authorization must be made via a valid Standardized Form of Authorization (FOA). There are two different FOA's available at the ICANN website. The FOA labelled "Initial Authorization for Registrar Transfer" must be used by the Gaining Registrar to request an authorization for a registrar transfer from the Transfer Contact. The FOA labelled "Confirmation of Registrar Transfer Request" must be used by the Registrar of Record to request confirmation of the transfer from the Transfer Contact.
The FOA shall be communicated in English, and any dispute arising out of a transfer request shall be conducted in the English language. Registrars may choose to communicate with the Transfer Contact in additional languages. However, Registrars choosing to exercise such option are responsible for the accuracy and completeness of the translation into such additional non-English version of the FOA.
(b) In the event that the Gaining Registrar relies on a physical process to obtain this authorization, a paper copy of the FOA will suffice insofar as it has been signed by the Transfer Contact and further that it is accompanied by a physical copy of the Registrar of Record's Whois output for the domain name in question.
(i) If the Gaining Registrar relies on a physical authorization process, then the Gaining Registrar assumes the burden of obtaining reliable evidence of the identity of the Transfer Contact and maintaining appropriate records proving that such evidence was obtained. Further the Gaining Registrar also assumes the burden for ensuring that the entity making the request is indeed authorized to do so. The acceptable forms of physical identity are:
(1) Notarized statement
(2) Valid Drivers license
(4) Article of Incorporation
(5) Military ID
(6) State/Government issued ID
(7) Birth Certificate
(ii) In the event that the Gaining Registrar relies on an electronic process to obtain this authorization the acceptable forms of identity would include:
(1) Electronic signature in conformance with national legislation, in the location of the Gaining Registrar (if such legislation exists).
(2) Consent from an individual or entity that has an email address matching the Transfer Contact email address.
The Registrar of Record may not deny a transfer request solely because it believes that the Gaining Registrar has not received the confirmation set forth above.
A transfer must not be allowed to proceed if no confirmation is received by the Gaining Registrar. The presumption in all cases will be that the Gaining Registrar has received and authenticated the transfer request made by a Transfer Contact.
2.2 Request, by the transmission of a "transfer" command as specified in the Registrar Tool Kit, that the Registry Operator database be changed to reflect the new Registrar.
(a) Transmission of a "transfer" command constitutes a representation on the part of the Gaining Registrar that the requisite authorization has been obtained from the Transfer Contact listed in the authoritative Whois database.
(b) The Gaining Registrar is responsible for validating the Registered Name Holder requests to transfer domain names between Registrars. However, this does not preclude the Registrar of Record from exercising its option to independently confirm the Registered Name Holder's intent to transfer its domain name to the Gaining Registrar in accordance with Section 3 of this policy.
3. OBLIGATIONS OF THE REGISTRAR OF RECORD
A Registrar of Record shall confirm the intent of the Registered Name Holder when a notice of a pending transfer is received from the Registry by notifying the Registered Name Holder of the transfer. The Registrar of Record must do so in a manner consistent with the standards set forth in this agreement pertaining to Gaining Registrars.
In order to ensure that the form of the request employed by the Registrar of Record is substantially administrative and informative in nature and clearly provided to the Transfer Contact for the purpose of verifying the intent of the Transfer Contact, the Registrar of Record must use the FOA.
The FOA shall be communicated in English, and any dispute arising out of a transfer request, shall be conducted in the English language. Registrars may choose to communicate with the Transfer Contact in additional languages. However, the Registrar choosing to exercise such option is responsible for the accuracy and completeness of the translation into such additional non-English version of the FOA. Further, such non-English communications must follow the processes and procedures set forth in this policy. This includes but is not limited to the requirement that no Registrar shall add any additional information to the FOA used to obtain the consent of the Transfer Contact in the case of a transfer request.
This requirement does not preclude the Registrar of Record from marketing to its existing customers through separate communications.
The FOA should be sent by the Registrar of Record to the Registered Name Holder as soon as operationally possible, but must be sent not later than twenty-four (24) hours after receiving the transfer request from the Registry Operator.
Failure by the Registrar of Record to respond within five (5) calendar days to a notification from the Registry regarding a transfer request will result in a default "approval" of the transfer.
In the event that a Transfer Contact listed in the Whois has not confirmed their request to transfer with the Registrar of Record and the Registrar of Record has not explicitly denied the transfer request, the default action will be that the Registrar of Record must allow the transfer to proceed.
Upon denying a transfer request for any of the following reasons, the Registrar of Record must provide the Registered Name Holder and the potential Gaining Registrar with the reason for denial. The Registrar of Record may deny a transfer request only in the following specific instances:
(a) Evidence of fraud.
(b) UDRP action.
(c) Court order by a court of competent jurisdiction.
(d) Reasonable dispute over the identity of the Registered Name Holder or Administrative Contact.
(e) No payment for previous registration period (including credit card charge-backs) if the domain name is past its expiration date or for previous or current registration periods if the domain name has not yet expired. In all such cases, however, the domain name must be put into "Registrar Hold" status by the Registrar of Record prior to the denial of transfer.
(f) Express objection to the transfer by the authorized Transfer Contact. Objection could take the form of specific request (either by paper or electronic means) by the authorized Transfer Contact to deny a particular transfer request, or a general objection to all transfer requests received by the Registrar, either temporarily or indefinitely. In all cases, the objection must be provided with the express and informed consent of the authorized Transfer Contact on an opt-in basis and upon request by the authorized Transfer Contact, the Registrar must remove the lock or provide a reasonably accessible method for the authorized Transfer Contact to remove the lock within five (5) calendar days.
(g) The transfer was requested within 60 days of the creation date as shown in the registry Whois record for the domain name.
(h) A domain name is within 60 days (or a lesser period to be determined) after being transferred (apart from being transferred back to the original Registrar in cases where both Registrars so agree and/or where a decision in the dispute resolution process so directs). "Transferred" shall only mean that an inter-registrar transfer has occurred in accordance with the procedures of this policy.Instances when the requested change of Registrar may not be denied include, but are not limited to:
(a) Non-payment for a pending or future registration period.
(b) No response from the Registered Name Holder or Administrative Contact.
(c) Domain name in Registrar Lock Status, unless the Registered Name Holder is provided with the reasonable opportunity and ability to unlock the domain name prior to the Transfer Request.
(d) Domain name registration period time constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer.
(e) General payment defaults between Registrar and business partners / affiliates in cases where the Registered Name Holder for the domain in question has paid for the registration.
The Registrar of Record has other mechanisms available to collect payment from the Registered Name Holder that are independent from the Transfer process. Hence, in the event of a dispute over payment, the Registrar of Record must not employ transfer processes as a mechanism to secure payment for services from a Registered Name Holder. Exceptions to this requirement are as follows:
(a) In the case of non-payment for previous registration period(s) if the transfer is requested after the expiration date, or
(b) In the case of non-payment of the current registration period, if transfer is requested before the expiration date.
4. REGISTRAR COORDINATION
Each Registrar is responsible for keeping copies of documentation, including the FOA and the Transfer Contacts response thereto, that may be required for filing and supporting a dispute under the dispute resolution policy. Gaining Registrars must maintain copies of the FOA as received from the Transfer Contact as per the standard document retention policies of the contracts. Copies of the reliable evidence of identity must be kept with the FOA.
Both the Gaining Registrar and the Registrar of Record must provide the evidence relied on for the transfer during and after the applicable inter-registrar domain name transaction(s). Such information must be provided when requested by, and only by, the other Registrar that is party to the transfer transaction. Additionally, ICANN, the Registry Operator, a court or authority with jurisdiction over the matter or a third party dispute resolution panel may also require such information within five (5) days of the request.
The Gaining Registrar must retain, and produce pursuant to a request by a Losing Registrar, a written or electronic copy of the FOA. In instances where the Registrar of Record has requested copies of the FOA, the Gaining Registrar must fulfil the Registrar of Record's request (including providing the attendant supporting documentation) within five (5) calendar days. Failure to provide this documentation within the time period specified is grounds for reversal by the Registry Operator or the Dispute Resolution Panel in the event that a transfer complaint is filed in accordance with the requirements of this policy.
If either a Registrar of Record or a Gaining Registrar does not believe that a transfer request was handled in accordance with the provisions of this policy, then the Registrar may initiate a dispute resolution procedure as set forth in Section C of this policy.
For purposes of facilitating transfer requests, Registrars should provide and maintain a unique and private email address for use only by other Registrars and the Registry:
(a) This email address is for issue related to transfer requests and the procedures set forth in this policy only.
(b) The email address should be managed to ensure messages are received by someone who can respond to the transfer issue.
(c) Messages received at such email address must be responded to within a commercial reasonable timeframe not to exceed seven (7) calendar days.
Transfer Emergency Action Contact - Registrars will establish a Transfer Emergency Action Contact ("TEAC") for urgent communications relating to transfers. The goal of the TEAC is to quickly establish a real-time conversation between registrars (in a language that both parties can understand) in an emergency. Further actions can then be taken towards a resolution, including initiating existing (or future) transfer dispute or undo processes.
Communications to TEACs will be reserved for use by ICANN-Accredited Registrars, gTLDRegistry Operators and ICANN Staff. The TEAC point of contact may be designated as a telephone number or some other real-time communication channel and will be recorded in, and protected by, the ICANN RADAR system. Communications to a TEAC must be initiated in a timely manner, within a reasonable period of time following the alleged unauthorized loss of a domain.
Messages sent via the TEAC communication channel must generate a non-automated response by a human representative of the Gaining Registrar. The person or team responding must be capable and authorized to investigate and address urgent transfer issues. Responses are required within 4 hours of the initial request, although final resolution of the incident may take longer.
The Losing Registrar will report failures to respond to a TEAC communication to ICANNCompliance and the registry operator. Failure to respond to a TEAC communication may result in a transfer-undo in accordance with Section 6 of this policy and may also result in further action by ICANN, up to and including non-renewal or termination of accreditation.
Both parties will retain correspondence in written or electronic form of any TEAC communication and responses, and share copies of this documentation with ICANN and the registry operator upon request. This documentation will be retained in accordance with Section 3.4 of the Registrar Accreditation Agreement (RAA). Users of the TEAC communication channel should report non-responsive Registrars to ICANN. Additionally, ICANN may conduct periodic tests of the Registrar TEAC communication channel in situations and a manner deemed appropriate to ensure that registrars are indeed responding to TEAC messages.
5. REQUIREMENTS FOR THE 'CLIENTTRANSFERPROHIBITED' STATUS AND 'AUTHINFO' CODES
Subject to ICANN specifications or policies and any applicable laws or regulations, Registrars must follow the requirements set forth below.
Registrars may only set a domain name in "ClientTransferProhibited" status upon registration or subsequent request by the Registered Name Holder, provided, however, that the Registrar includes in its registration agreement (obtaining the express consent of the Registered Name Holder) the terms and conditions upon which it prohibits transfer of the domain name. Further, the Registrar must remove the "ClientTransferProhibited" status within five (5) calendar days of the Registered Name Holder's initial request if the Registrar does not provide facilities for the Registered Name Holder to remove the "ClientTransferProhibited" status.
Registrars must provide the Registered Name Holder with the unique "AuthInfo" code and remove the "ClientTransferProhibited" within five (5) calendar days of the Registered Name Holder's initial request if the Registrar does not provide facilities for the Registered Name Holder to generate and manage their own unique "AuthInfo" code and to remove the "ClientTransferProhibited" status.
Registrars may not employ any mechanism for complying with a Registered Name Holder's request to remove the "ClientTransferProhibited" status or obtain the applicable "AuthInfo Code" that is more restrictive than the mechanisms used for changing any aspect of the Registered Name Holder's contact or name server information.
The Registrar of Record must not refuse to remove the "ClientTransferProhibited" status or release an "AuthInfo Code" to the Registered Name Holder solely because there is a dispute between the Registered Name Holder and the Registrar over payment.
Registrar-generated "AuthInfo" codes must be unique on a per-domain basis.
The "AuthInfo" codes must be used solely to identify a Registered Name Holder, whereas the FOA's still need to be used for authorization or confirmation of a transfer request, as described in Section 2 and Section 4 of this policy.
6. REGISTRY REQUIREMENTS
Upon receipt of the "transfer" command from the Gaining Registrar, Registry Operator will transmit an electronic notification to both Registrars. In the case of those Registries that use electronic mail notifications, the response notification may be sent to the unique email address established by each Registrar for the purpose of facilitating transfers.
The Registry Operator shall complete the requested transfer unless, within five (5) calendar days, Registry Operator receives a NACK protocol command from the Registrar of Record.
When the Registry's database has been updated to reflect the change to the Gaining Registrar, Registry Operator will transmit an electronic notification to both Registrars. The notification may be sent to the unique email address established by each Registrar for the purpose of facilitating transfers or such other email address agreed to by the parties.
The Registry Operator shall undo a transfer if, after a transfer has occurred, the Registry Operator receives one of the notices as set forth below. In such case, the transfer will be reversed and the Registrar of Record field reset to its original state. The Registry Operator must undo the transfer within five (5) calendar days of receipt of the notice except in the case of a Registry dispute decision, in which case the Registry Operator must undo the transfer within fourteen calendar days unless a court action is filed. The notice required shall be one of the following:
(a) Agreement of the Registrar of Record and the Gaining Registrar sent by email, letter or fax that the transfer was made by mistake or was otherwise not in accordance with the procedures set forth in this policy;
(b) The final determination of a dispute resolution body having jurisdiction over the transfer; or
(c) Order of a court having jurisdiction over the transfer;
(d) Documentation provided by the Registrar of Record prior to transfer that the Gaining Registrar has not responded to a message via the TEAC within the timeframe specified in Section A.4.
7. RECORDS OF REGISTRATION
Each Registrar shall require its customer, the Registered Name Holder, to maintain its own records appropriate to document and prove the initial domain name registration date.
8. EFFECT ON TERM OF REGISTRATION
The completion by Registry Operator of a holder-authorized transfer under this Part A shall result in a one-year extension of the existing registration, provided that in no event shall the total unexpired term of a registration exceed ten (10) years.
B. ICANN-Approved Transfers
Transfer of the sponsorship of all the registrations sponsored by one Registrar as the result of (i) acquisition of that Registrar or its assets by another Registrar, or (ii) lack of accreditation of that Registrar or lack of its authorization with the Registry Operator, may be made according to the following procedure:
(a) The gaining Registrar must be accredited by ICANN for the Registry TLD and must have in effect a Registry-Registrar Agreement with Registry Operator for the Registry TLD.
(b) ICANN must certify in writing to Registry Operator that the transfer would promote the community interest, such as the interest in stability that may be threatened by the actual or imminent business failure of a Registrar.
Upon satisfaction of these two conditions, Registry Operator will make the necessary one-time changes in the Registry database for no charge, for transfers involving 50,000 name registrations or fewer. If the transfer involves registrations of more than 50,000 names, Registry Operator will charge the gaining Registrar a one-time flat fee of US$ 50,000.
C. Transfer Dispute Resolution Policy
Procedures for handling disputes concerning inter-registrar transfers are set forth in the Transfer Dispute Resolution Policy. Procedures in this policy must be followed by the applicable Registry Operators and ICANN accredited Registrars.
EXPIRED REGISTRATION RECOVERY POLICY
1. REGISTRANT AT EXPIRATION
1.1 A Registrant at Expiration ("RAE") is defined as the registered name holder who is eligible to renew a domain name registration immediately prior to its expiration.
1.2 If a domain name registration is modified pursuant to a term of the registration agreement authorizing the modification of registration data in relation to the expiration of the registration, the RAE is the entity or individual identified as the registered name holder immediately prior to that modification. In all other cases of transfers of gTLD registrations between registrants, the registered name holder who receives the registration is the RAE.
2. RENEWALS OF REGISTRATIONS
2.1 Expiration Reminder Notices
(a) Prior to the expiration of any gTLD registration, registrars must notify the registered name holder of the expiration at least two times. One of these notices must be sent approximately one month prior to expiration and one must be sent approximately one week prior to expiration. In the event the registration is transferred to a different registered name holder pursuant to a provision of the registration agreement and in relation to the expiration of the registration (as described in paragraph 1.2) these renewal notices must be transmitted instead to the RAE. Nothing in this policy is intended to preclude registrars from sending additional notices, provided that at least two required notices are sent at the required times.
(b) If a registration is not renewed by the RAE or deleted by the registrar, within five days after the expiration of the registration, the registrar must transmit at least one additional expiration notice to the RAE that includes instructions for renewing the registration.
(c) Notifications of expiration may be presented in one or more languages, but must be provided in the language of the registration agreement and must be communicated in a manner, such as by email, that does not require affirmative action to receive the notification.
2.2 Post-Expiration Renewal
(a) Subject to applicable consensus policies and provisions of the Registrar Accreditation Agreement ("RAA"), registrars may delete registrations at any time after they expire.
(b) For registrations deleted within eight days of expiration: The existing DNS resolution path specified by the RAE must be interrupted by the registrar from expiration of the registration until its deletion, to the extent the applicable registry permits such interruptions.
(c) For registrations deleted eight or more days after expiration: For at least the last eight consecutive days (after expiration) that the registration is renewable by the RAE, the existing DNS resolution path specified by the RAE must be interrupted by the registrar to the extent that the applicable registry permits such interruptions.
(d) In interrupting the DNS resolution path of the registration, if the registrar directs web traffic to the domain name to a web page while the registration is still renewable by the RAE, that web page must conspicuously indicate that the domain name registration is expired and provide renewal instructions.
(e) Beginning at the time of expiration and through the DNS resolution interruption period described in paragraphs 2.2.2 and 2.2.3, the RAE must be permitted by the registrar to renew the expired registration.
(f) Upon renewal of the registration by the RAE, the registrar must restore the DNS resolution path set by the RAE immediately or as soon as is commercially reasonable.
3. REDEMPTION GRACE PERIOD
3.1 With the exception of sponsored gTLD registries, all gTLD registries must offer a Redemption Grace Period ("RGP") of 30 days immediately following the deletion of a registration, during which time the deleted registration may be restored at the request of the RAE by the registrar that deleted it. Registrations deleted during a registry's add-grace period, if applicable, should not be subject to the RGP.
3.2 During the Redemption Grace Period, the registry must disable DNS resolution and prohibit attempted transfers of the registration. ICANN-approved bulk transfers and permitted partial bulk transfers are not subject to the prohibition of attempted transfers. The registry must also clearly indicate in its Whois result for the registration that it is in its Redemption Grace Period.
3.3 Registrars must permit the RAE to redeem a deleted registration during RGP (if RGP is offered by the respective registry).
4. NOTICE TO REGISTRANTS OF FEES AND PROCEDURES
4.1 Registrars must make their renewal fees, post-expiration renewal fees (if different), and redemption/restore fees reasonably available to registered name holders and prospective registered name holders at the time of registration of a gTLD name.
(a) At a minimum, these fees must be clearly displayed on the registrar's website and a link to these fees must be included in the registrar's registration agreements. Registrars who do not offer or provide registrar services through a website must at least include the fees in their registration agreements.
(b) Additionally, registrars must ensure that these fees are displayed on their resellers' websites.
4.2 Registrars must describe on their websites (if used) the methods used to deliver pre- and post-expiration notifications described in section 2 above.
(a) This description should generally include communications channels/media that will be used and identification of the point of contact to which the notices will be transmitted (e.g., email to registered name holder, telephone call to administrative contact, postal mail to customer, etc.).
(b) Registrars' registration agreements must include either a similar description of its notification methods or a link to the applicable page(s) on its website where this information is available.
(c) Additionally, registrars must ensure that these communication methods are described on their resellers' websites.
4.3 In the event ICANN publishes registrant education materials addressing proper stewardship of domain names and renewal and redemption of gTLD registrations online, registrars must, after reasonable notice from ICANN, make this material (or similar material adapted by the registrar to its specific practices) available to registered name holders by:
(a) including a link to this material in a communication sent to the registered name holder immediately following completion of the registration transaction and in all subsequent Whois data accuracy reminder notices, such as the annual notices required by the Whois Data Reminder Policy http://www.icann.org/resources/registrars/consensus-policies/wdrp; and
(b) displaying a link to this material on the websites through which registrations are offered, in a manner and location that is at least as clear and conspicuous as links to other documents and policies that must be posted by the registrar pursuant to its registrar accreditation agreement and incorporated consensus policies.
MICROSOFT VOLUME LICENCING AGREEMENTS
This document governs the use of Microsoft software, which may include associated media, printed materials, and “online” or electronic
documentation (individually and collectively, “Products”) provided by Umbrellar Limited and any other company in the Umbrella
Group (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain
rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement
with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer
does not have authority to vary, alter, or amend.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant,
“smart phone,” server or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software.
“Redistribution Software” means the software described in
Paragraph 4 (“Use of Redistribution Software”) below.
2. OWNERSHIP OF PRODUCTS
The Products are licensed to Customer from an affiliate of the Microsoft Corporation
(collectively “Microsoft”). All title and intellectual property rights in and to the Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products) are owned by Microsoft or its suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual
property rights to you.
3. USE OF CLIENT SOFTWARE
You may use the Client Software installed on your Devices by Customer only in accordance with the instructions, and only in connection with the services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE
In connection with the services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO CUSTOMER, WHICH TERMS MUST BE PROVIDED TO YOU BY CUSTOMER. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer.
You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4(Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING,DECOMPILATION AND DISASSEMBLY
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Customer.
Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT.
ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.
10. PRODUCT SUPPORT.
Any support for the Products is provided to you by Customer and is not provided by
Microsoft, its affiliates or subsidiaries.
11. NOT FAULT TOLERANT.
THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS
The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH
In addition to any liability you may have to Customer, you agree that you will also be
legally responsible directly to Microsoft for any breach of these terms and conditions.
goMOBI END USER LICENCE AGREEMENT
These terms are in addition to the Umbrellar General Terms and Conditions.
The following words and expressions shall have the meanings hereby assigned to them except where the context otherwise requires. All terms defined in the Umbrellar General Terms and Conditions shall have the same meaning in this document unless redefined below.
"Umbrellar", "us", "we" and "our" means Umbrellar Limited and any other company in the Umbrellar Group (as defined in the General Terms and Conditions);
"Client", "You" and "Your" means the party or parties who enter into this Agreement with Umbrellar;
"Database" means the dotMobi hosted database which contains information relating to devices for the mobile web;
"dotMobi" means Afilias Technologies Limited (formerly mTLD Top Level Domain Limited), incorporated in Ireland and trading as “dotMobi”;
"Service" or "goMobi" means the goMobi service which is a service used to create websites optimised for mobile devices and the configuration application interface;
"Software" means the goMobi mobile website builder software, and the software components and/or transcoding tags (including the device detection and transcoding tag software) to be installed on the end user's web server including associated manuals, user guides, help text files or embedded software instructions; and
"Additional Service" has the meaning given to it in clause 3.1(b).
2. GENERAL TERMS
2.1 The terms and conditions set out in this document relate only to your use of the goMobi mobile website builder provided by Umbrellar.
2.2 Umbrellar reserves the right to modify, enhance and withdraw all or part of the Service and alter its Policies and this Agreement. In the event of any change, Umbrellar shall provide a general notice on its website and changes will become effective upon publication.
3. LICENCE TERMS
3.1 You shall be granted a personal, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable license to:
(a) use the Service; and
(b) install and use a single copy of the Software solely for the purpose of redirecting mobile web traffic to the goMobi web site that is the subject of the goMobi subscription through searches of the Database (the “Additional Service”).
3.2 You shall during the term of this Agreement, to the extent reasonably possible, effect and maintain adequate security measures to safeguard the Service, Software and Additional Service from use by any unauthorized person.
3.3 You shall not use the Service and/or the Additional Service in any way not expressly permitted under this Agreement. This includes a prohibition on:
(a) removing or modifying any markings on the Service or the Additional Service including reports or any notice of IP Rights;
(b) modifying, selling, renting, leasing, transferring, assigning, disposing of, novating, sub-licensing, transferring any of its rights to, reselling for profit or distributing the Service and/or the Additional Service or creating derivative works based on the Service and/or the Additional Service or any part of them;
(c) any distribution of data retrieved from the Database (or otherwise through the Service or Additional Service) in any form (whether printed, electronically relayed, posted to public list services or bulletin boards, magnetically stored or otherwise) to, or for the benefit of, any other person;
(d) causing or permitting any alteration, adaptation, translation, decompilation, disassembly, or reverse engineering of the Service and/or the Additional Service (other than as permitted by applicable law);
(e) copying the Software (provided however that you may take such copies or other reproductions of the Software as are strictly necessary for backup or archival purposes) and/or the Database or creating subsets or derivative databases from the Database in a manner not expressly permitted by this Agreement;
3.4 You shall be solely responsible for ensuring compliance with all local laws and regulations in relation to your website and the website content.
3.5 You shall be solely responsible for observing any applicable export and import laws that govern your use of the Service and/or the Additional Service. In particular, you shall not export the Software and/or the Database, or any part thereof, directly, or indirectly, in violation of these laws, or use them for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
3.6 You shall agree that dotMobi may make commercial use of data arising from your use of the Service and/or the Additional Service.
4. WARRANTY DISCLAIMER
4.1 Given the nature of the Service and/or the Additional Service and in particular your reliance on content provided by third parties, you agree that the Service and/or the Additional Service are provided to you on an “as is” basis.
4.2 To the fullest extent permitted by applicable law and except where expressly provided in this Agreement, Umbrellar disclaims all warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, compatibility, security, accuracy or infringement in respect of the Service and/or the Additional Service.
4.3 You agree to assume the entire risk as to the results and performance of the Service and/or the Additional Service.
4.4 Umbrellar does not represent or warrant to you that your use of the Service and/or the Additional Service will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy your requirements.
5. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
5.1 Umbrellar and/or its licensors may elect to modify or replace the Service and/or the Additional Service, or terminate this Agreement, as a result of any third party Intellectual Property rights infringement issue relating to the Service and/or the Additional Service.
6.1 To the extent permitted by law, in no event shall dotMobi and/or any of Umbrellar's licensors have any liability (whether direct or indirect) to you for loss or damage.
6.2 Since use of and access to the Service and the Additional Service depends, in part, on third parties (for example, telecommunications carriers) whose performance is outside of Umbrellar and its licensors’ control, Umbrellar and its licensor shall not be liable for loss or damages arising from the failure of the transmission or receipt of data due to:
(a) causes beyond our or our licensors’ reasonable control, or
(b) causes which are not reasonably foreseeable by Umbrellar or its licensors, including but not limited to, interruption or failure of communication or digital transmission links and Internet slow-downs or failures.
7. PROPRIETARY RIGHTS
7.1 The Service and the Additional Service supplied by Umbrellar are represented as owned by Umbrellar and/or its licensor and/or others and are proprietary in nature.
7.2 Umbrellar and/or its licensor and/or others have and will retain all Intellectual Property rights and ownership in, and title to such proprietary licensed software and other material in and/or comprising the Service and/or the Additional Service.
8.1 On termination or expiry of this Agreement for any reason: (i) the licence granted under this Agreement shall immediately cease, (ii) you shall not make any further use of the Service and/or the Additional Service, and (iii) you must immediately remove all Software from your systems and delete any other information, documentation, materials, equipment, property and other items (and all copies of them in any format) belonging to Umbrellar or its licensors.
9. FAIR USE POLICY
9.1 In the event that the volume of traffic you use for the Service and/or the Additional Service is sufficient so as to jeopardise the provision of the Service and/or the Additional Service for other end users, dotMobi reserves the right to, at its sole discretion, permanently or temporarily, discontinue provision of the Service and/or the Additional Service to you.
9.2 For the avoidance of doubt, the volume of traffic generated by you should not exceed 2,000 page views per day.
10. ACCEPTABLE USE POLICY
10.1 You agree that your access to and right of use of the Service and/or the Additional Service may be suspended and/or terminated if you are found to be using the Service and/or the Additional Service in association with activities which may be detrimental to Umbrellar or dotMobi’s interests or reputation, such as in association with unsolicited commercial email (“spam”) or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the territories in which you transact your business; activities designed to encourage unlawful behaviour by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; and activities designed to harm minors in any way.
10.2 In the event that access to and right of use of the Service and/or the Additional Service by you is suspended and/or terminated for spam or morally objectionable activities, no refund shall be due.
11. DOMAIN TRANSFERS
11.1 Should a domain to which services are being provided under this Agreement be transferred to another domain name registrar, the provision of the Service and/or the Additional Service will be interrupted on that domain, and the Service and/or the Additional Service will not be restored until the necessary DNS records are made to refer the domain to the Service.
12. SERVICE BRANDING
12.1 You accept that the text “goMobi by dotMobi” or equivalent, is inserted at the footer of the adapted site.
13.1 As part of the provision of the Service and/or the Additional Service to you, updates to the Service and/or the Additional Service will take place from time to time (the “Updates”). Updates are generally designed to improve, enhance and further develop the Service and/or the Additional Service and may take the form of bug fixes, enhanced functions, new capabilities and completely new versions, and may include, but are not limited to, items such as
advertising, links to third party offerings, and other promotional content. dotMobi shall incorporate Updates at its absolute discretion and you shall agree to receive such Updates on the above terms as part of your use of the Service and/or the Additional Services.
SPAMHAUS TERMS AND CONDITIONS
In these terms and conditions;-
"Activation Date" means the date notified by Spamhaus Research to the Reseller or you as being the date on which your account was activated such that you are able to access the Spamhaus Data, Data Feed Service and Look-up Service;
"Affiliate" means in relation to any company, any subsidiary or holding company of that company and any subsidiary of any such holding company, in each case at any level, where the expressions "holding company'' and 'subsidiary' have the meanings ascribed thereto by section 736 of the Companies Act 1985 (as amended);
"Agreement" means the agreement between you and the Reseller which incorporates these Standard Subscriber Licence Terms;
"Annual Period" means the period of 12 months running from and including the original Activation Date to but excluding the dame date in the following calendar year, and if you renew your subscription to the Spamhaus Data, Data Feed Service and Look-up Service, each successive period of 12 months running from an anniversary date of the Activation Date for which you renew;
"Annual Renewal Date" means each anniversary of the Activation date;
"E-mail" means messages transferred by means of the Internet using the Simple Mail Transfer Protocol (SMTP), Extended Mail Transfer Protocol (ESMTP);
"Email Filtering" means in relation to any E-mail, looking-up in the Spamhaus Data, or through the Spamhaus Look-Up Service, the IP Address from which that E-mail was or is being sent, or any IP Address referred to in or for any domain name referred to in the headers or body of that E-mail, or any IP Address otherwise associated with that E-mail, with a view to making a decision whether to accept or reject that E-mail depending on the presence of any such IP Address in the Spamhaus Data;
"Intellectual Property Rights" means any and all registered and unregistered intellectual property rights in any part of the world, including without limitation patents, design rights and registered designs, copyrights, database rights, trade marks, and service marks, domains names, know-how, rights in inventions, designs and ideas, and rights to confidence, and including in particular the database right created by Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 which was implemented in to the law of England and Wales under the Copyright and Rights in Databases Regulations 1997;
"Internal Use Licence" has the meaning given to it in Clause 4.1;
"Internet" means the worldwide, publicly accessible network of interconnected computer networks that transmit data by packet switching using the standard Internet Protocols IPv4 or IPv6;
"IP Address" means an Internet Protocol address which is a unique address that electronic devices use in order to identify and communicate with each other on the Internet;
"Licenced Total Users" means the maximum number of Users in respect of which you are licenced to use the Spamhaus Data, Data Feed Service and Look-Up Service from time to time as registered by your Reseller with Spamhaus Research;
"Reseller" means the person reselling to you your subscription to the Spamhaus Data, Data Feed Service and Look-Up Service;
"Service Provider Licence" has the meaning given to it in Clause 4.2;
"Spam" means unsolicited bulk, broadcast, automated or systematic E-mail messages, E-mail phishing, E-mail containing, or containing links to, viruses, trojan horses and other malicious code or exploits, and any other undesirable E-mail;
Spammer" means an person who sends, pays or arranges for someone else to send, or assists someone else to send Spam or otherwise directly or indirectly benefits from Spam;
"Spamhaus Data" means the content of the Spamhaus DNSBLs, including specifically the IP Addresses listed in such Spamhaus DNSBLs, identified as being connected with the transmission or origin of Spam or the hosting or provision or services to Spammers, or identified as IP addresses from which unauthenticated E-mail should not be originating, as updated from time to time, including all updates to such content provided through the Spamhaus Data feed Service;
"Spamhaus DNSBLs" means the DNS-based IP Address block-lists marketed by Spamhaus Research, including the Spamhaus Block List (SBL), Exploits Block List (XBL), and Policy Block List (PBL), as updated from time to time;
"Spamhaus Look-Up Service" means a service whereby a remote request may be made to servers operated by or on behalf of Spamhaus Research, to look-up the presence of an IP Address in the Spamhaus DNSBLs for the purpose of E-mail Filtering;
"Spamhaus Data Feed Service" means the automatic Zone Synchronization Service provided by Spamhaus Research whereby the Subscriber may, using suitable software, download the Spamhaus Data and updates to the Spamhaus Data from servers operated by or on behalf of Spamhaus Research using the rsync technology;
"Spamhaus Servers" means servers operated by or on behalf of Spamhaus Research which hold the latest published versions of the Spamhaus Data, which may be queried remotely as part of the Spamhaus Look-Up Service or from which the Spamhaus Data and updates to them may be obtained over the Internet using the rsync incremental file transfer utility as part of the Spamhaus Data Feed Service;
"Spamhaus Research" means Spamhaus Research Limited, a limited company incorporated in England and Wales registered under number 05078652 whose registered office is at Communication House, 26 York Street, London W1U 6PZ;
"User" means each separate E-mail user, account, recipient, address and mailbox in respect of which or for whom you or any of your Affiliates users of intends to use the Spamhaus Data, Data Feed Services and/or Look-Up Server to carry out E-mail Filtering or provides, or intends to or is contracted to provide E-mail Filtering services in relation to E-mails sent or being sent to the same; and
"you" means the person subscribing to the Spamhaus Data, Data Feed Service and Look-Up Service through the Reseller.
In these terms: headings are for convenience only and shall be disregarded when interpreting these terms; a reference to a "person" includes any company, corporation, government body, association, partnership or individual; a reference to the singular shall include the plural and vice versa; "writing" includeds printed documents, Emails, web-pages, or nay other form which is read by the human eye; references to "including" are deemed to be followed by the words "without limitation".
2. BASIS OF SUBSCRIPTION
Your subscription to the Spamhaus Data, Data Feed Service and Look-Up Service is provided through a licence and services agreement from Spamhaus Research to the Reseller; and a sub-licence and services agreement from the Reseller to you which incorporates these Subscriber Licence Terms. Your agreement is with the Reseller and the Reseller sub-contracts to Spamhaus Research. These terms form part of the contract between you and the Reseller, and you and the Reseller agree that each of these terms shall also be for the benefit of, be rights of and obligations owed by you to, and otherwise be directly enforceable by Spamhaus Research, its Affiliates, and any of their respective officers and employees under the Contracts (Rights of Third Parties) Act 1999.
3. DURATION OF LICENCE
Your licence and services contract for use of the Spamhaus Data, Data Feed Service and Look-Up Service runs on a yearly basis from the Activation Date, and must be renewed by you at the end of each Annual Period through the Reseller, otherwise your licence and service will terminate. You should receive a reminder from your Reseller before each Annual Renewal Date.
4. LICENCE TYPES
The Reseller may grant you, by way of sub-licence, one of the following mutually exclusive types of licence:-
4.1 Internal Use Licence
Under this sub-licence, you are licenced to use the Spamhaus Data, Data Feed Service and Look-Up Service with respect to all incoming E-mails addressed to you or your officers, employees or other Internal User, and with respect to all incoming E-mails addressed to your Affiliates and their offices, employees or other internal Users, for the purposes of E-mail Filtering to detect and filter Spam. For the avoidance of doubt this licence only extends to your using or accessing the Spamhaus Data, Data Feed Service and Look-Up Service on or from your own computers.
4.2 Service Provider Licence
Under this sub-licence. you are granted an Internal Use Sub-Licence in accordance with Clause 4.1, and you are also a licence to use the Spamhaus Data, Data Feed Service and Look-Up Service with respect to all incoming E-mails addressed to your customers (and their officers, employees or other internal Users) to whom you are contracted to provide E-mail Filtering services in relation to mailboxes hosted by you, for the purposes of detecting and filtering Spam. For the avoidance of doubt this licence only extends to your using or accessing the Spamhaus Data, Data Feed Service and Look-Up Service on or from your own computers.
4.3 Evaluation Licence
Under this cub-licence the Reseller may grant to you, on a one-time only basis, one of the above licences in Clauses 4.1 or 4.2, for a limited period of 30 days to trial Spamhaus Data, Data Feed Service and Look-Up Service.
4.4 No Other Rights
Except for the sub-licences granted above, no other rights or licences are granted to you with respect to Spamhaus Data, Data Feed Service and Look-Up Service unless expressly agreed in writing by Spamhaus Research.
5. STANDARD LICENCE RIGHTS
5.1 Licensed Total Users
You may use the Spamhaus Data, Data Feed Service and Look-Up Service for up to the Licensed Total Users. You must ensure that you provide to your Reseller accurate estimates of your likely User numbers. If your User numbers exceed the Licensed Total Users at any time in any Annual Period then you must inform your Reseller as Spamhaus Research have a discretion as to whether or not to charge for this.
5.2 Number of Installations
You are licensed to install and use any number of copies of the Spamhaus Data on your own computer systems and to synchronize all of these with the Spamhaus Data Feed Service.
5.3 Accessing the Spamhaus Servers
You are licensed to either query the Spamhaus Look-Up Service on the Spamhaus Servers directly over the Internet using such protocols and query syntax as may be specified by Spamhaus Research, or to download and install your own local copies of the Spamhaus Data and synchronize these using rsync.
6. USAGE TERMS
The Spamhaus Data, Data Feed Service and Look-Up Service are provided on an advisory basis, and are not guaranteed to be complete or interruption or error free. Spamhaus Research does not guarantee the results or effectiveness of the Spamhaus Data, Data Feed Service and Look-Up Service or give any recommendations as to how you should use the Spamhaus Data, Data Feed Service and Look-Up Service, or shall have any responsibility for any decisions or actions taken by you or anyone else in reliance on the Spamhaus Data, Data Feed Service and Look-Up Service, including to refuse or accept any E-mail.
6.2 Access to Spamhaus Data, Data Feed Service and Look-Up Service
You may access the Spamhaus Data, Data Feed Service and Look-Up Service only using the single IP address of back-up IP Address registered with Spamhaus Research by the Reseller.
6.3 Internet Issues
You acknowledge that you will not hold Spamhaus Research responsible for any delays or other problems experiences in accessing the Spamhaus Data, Data Feed Service and Look-Up Service caused by the internet or any other systems not in the control of Spamhaus Research.
For the avoidance of doubt, you and any of your Users and customers, and any of your respective Affiliates, officers, employees, agents and partners, and your IP addresses may be listed in the Spamhaus DNSBLs without being in conflict with you or this licence, in accordance with the conditions and policies applicable for listing. Please contact your Reseller if you consider any listing is in error.
6.5 System Requirements
The technical, system and software requirements for accessing and using the Spamhaus Data, Data Feed Service and Look-Up Service are specified in any web-sites and instrc=uction manuals of Spamhaus Research and any third party providers of software (such as rsync and rbldnsd). You are responsible for providing and meetinf these requirements and otherwise obtaining any third party software and equipment and configuring ans setting-up any software and equipment needed to access and use the Spamhaus Data, Data Feed Service and Look-Up Service.
Spamhaus Research shall, without prior notice, be entitled to suspend, or take out of use, interrupt, change, improve, introduce, or degrade any part Databases, Data Feed Service and Look-Up Service or Spamhaus Servers, their content, functionality, technical specifications or system requirements, including for the purposes of replacement, maintenance, repair and upgrade, rectifying any malfunction, fault or damage, or dealing with any emergency, risk to health and safety or actual or suspected security breach, or where necessary for operational, statutory, legal or regulatory reasons or to comply with any legal or regulatory obligation or any changes to any Internet standards or protocols (including the IPv6 address format), or to comply with any published policies of the Spamhaus Research, or generally as part of any change to the Spamhaus Data, Data Feed Service and Look-Up Service being applied to all customer of Spamhaus Research, including the introduction of more authentication requirements for access to the Spamhaus Data, Data Feed Service and Look-Up Service.
6.7 Excessive Use of Look-up Service
If Spamhaus Research considers that that the Look-up Service if being excessively used by you and that you ought to set up your own local DNS look-up using the Spamhaus Data and Data Feed Service, then Spamhaus may require you to do so. Spamhaus Research may suspend access to the Look-Up Service if it considers that it is being excessively used.
6.8 Supply Information and Audit
You must promptly provide any information required by Spamhaus Research in connection with your use of the Spamhaus Data, Data Feed Service and Look-Up Service, and permit Spamhaus Research to audit your usage and compliance with these terms.
6.9 Direct Contact
You agree that Spamhaus Research may contact you directly using any contact details and E-mail addresses provided by you to the Reseller to inform you of any approaching renewal, and of any approaching termination of any arrangements between Spamhaus Research and the Reseller under which the Spamhaus Data, Data Feed Service and Look-Up Service are resold to you.
6.10 Comply with Spamhaus Research's Instructions and Policies
You must use the Spamhaus Data, Data Feed Service and Look-Up Service in accordance with Spamhaus Research's general instructions, policies and guidelines in place from time to time, as notified to the Reseller form time to time or set our on any website of Spamhaus Research.
6.11 Password Security
You are responsible for maintaining the security of your usernames, passwords and other security codes given to your for accessing the Spamhaus Data, Data Feed Service and Look-Up Service.
6.12 Data Security
The Spamhaus Data, Data Feed Service and Look-Up Service are for your use only, they must be used on or accessed from your systems only, and may not be distributed, transformed or disseminated to persons outside your organisation either in part or in whole, in any form whatsoever without the express written permission of Spamhaus Research. In particular, you shall not, without the express written permission of Spamhaus Research, configure your nameserver(s) such that third parties can query, transfer or gain access to the Spamhaus Data, and shall take all reasonable steps to prevent unauthorised access to the Spamhaus Data or unauthorised use of any Data Feed Service and Look-Up service. You acknowledge that it is a fundamental requirement of your permission to use the Spamhaus Data, Data Feed Service and Look-Up Service that they should not be accessed by or fall into the hands of Spammers.
6.13 No Resale
Unless expressly agreed in writing with Spamhaus Research, the Subscriber may not further sub-licence or otherwise resell the Spamhaus Data, Data Feed Service and Look-Up Service.
6.14 Intellectual Property Rights
You agree that any and all Intellectual Property Rights in the Spamhaus Data, Data Feed Service and Look-Up Service, are and shall remain the sole property of Spamhaus Research, its Affiliates and any person from whom it obtains or licences any Spamhaus Data, and you shall not have any right, licence or interest therein except for any licences expressly granted in this Agreement.
You agree to keep confidential the Spamhaus Data and any informtaion provided to you with respect to the Data Feed Service and Look-Up Service. This Clause shall not apply to any information in the public domain, unless it has fallen into the public domain through breach of this Agreement.
On suspension or termination of any contract between the Reseller and Spamhaus Research your licences and rights to use the Spamhaus Data, Data Feed Service and Look-Up Service will suspend of terminate at the end of the then current Annual Period. On expiry, termination or non-renewal of your subscription, all licences and services to you shall terminate, and you must cease to use the Spamhaus Data, Data Feed Service and Look-Up Service and delete all copies of the Spamhaus Data which you have made.
6.17 Exclusion of Spamhaus Liability
You specifically acknowledge that use of the data in the Spamhaus Data may cause legitimate E-mail as well as Spam to be rejected, and that you accept such risk as your sole risk, and that all filtering, blocking and other decisions and actions taken based on any Spamhaus Data remain with you and shall be at your sole risk.
(b) No Warranty
You acknowledge and agree that the Spamhaus Data, Data Feed Service and Look-Up Service (including for the avoidance of doubt their content) are provided AS IS< AS AVAILABLE< WITH ALL FAULTS and are provided without any covenants, promises or guarantees as to accuracy, functionality, performance, merchantability, system integration, data accuracy or fitness for any purpose. Any conditions, terms or warranties as to the same implied or imposed by statue or common law are hereby excluded to the fullest extent permitted by law.
You acknowledge and agree neither Spamhaus Research nor its Affiliates nor Reseller and their officers and employees, that they assume no duty of care to you or any other person with respect to the Spamhaus Data, Data Feed Service and Look-Up Service, and you agree that non of them shall have any liability whatsoever to you (including in negligence and breach of statutory duty) and you shall have no remedies against them with respect to the Spamhaus Data, Data Feed Service and Look-Up Service, or any use of or reliance on the same made by you or any person through you, including without limitation any loss resulting from rejection or acceptance of any E-mail on the basis of the Spamhaus DNSBLs, any direct, indirect, incidental, consequential, special, exemplary or punitive damages, any loss of profit, investment, trading, reliance or wasted expenditure, any liability to third parties, or any other contract, strict liability, statutory duty or liability or under any other form of action, and even if Spamhaus Research was advised of the possibility of such damages.
6.18 No Sub-Licensing or Assignment
You may not sub-licence or assign any of the rights or licences granted to you in relation to the Spamhaus Data, Data Feed Service and Look-Up Service.
6.19 Applicable Law
These Subscriber Licence Terms shall exclusively governed by the laws of England and Wales, and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales in relation to any matter relating to these terms, the Spamhaus Data, Data Feed Service and Look-Up Service.
SOHOLAUNCH END USER LICENCE AGREEMENT
This End-User License Agreement ("Agreement") is a legal contract between you, the person or company being licensed to use the Software herein ("Licensee"), and Soholaunch.com, Inc. ("Soholaunch" or "Vendor") or its authorized distributor or provider ("Vendor"), to license Soholaunch's website tools, which include computer software and associated user's guides and documentation (hereinafter collectively referred to as the "Software").
BY CLICKING THE "I ACCEPT" BUTTON BELOW, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, SELECT THE "CANCEL" BUTTON BELOW AND EXIT NOW. DO NOT INSTALL, COPY, OR OTHERWISE USE THE SOFTWARE.
Subject to the terms of this Agreement and full payment of the applicable license and maintenance fees, Vendor hereby grants Licensee a personal, non-exclusive, non-assignable, and non-transferrable license to install and use the Software to establish a single website for use by a single client at a single URL and a single-server IP address. A separate license is required for each additional website established using the Software, and the Licensee may not use the Software to establish any new websites subsequent to the website initially established pursuant to the Agreement herein, whether for a new client or at a new URL address, without first obtaining a new license from, and the express written consent of, the Vendor.
2. SUBLICENCING RIGHTS
There are no rights granted to Licensee under this Agreement to sublicense the Software or otherwise make the software available to any third party.
3. MODIFICATIONS TO THE SOFTWARE
Subject to the terms and conditions of this Agreement, Licensee may alter and/or modify certain portions of the Software in accordance with the terms set forth herein. Licensee agrees not to remove, alter, and/or modify any portion of the Software that is identified in the source code with a notice or comment tag requiring that that portion of the code not be modified. Licensee agrees and acknowledges that any alteration or modification of the Software: (a) is made and used at Licensee's own risk; (b) may be used only by Licensee for Licensee's internal purposes in accordance with the limited purposes set forth in this Agreement; and, (c) may not directly or indirectly be sold, resold, licensed, distributed or otherwise transferred to any third party or parties. This prohibition applies to both altered Soholaunch or Vendor code and any new code developed specifically for use with the Software. The foregoing restrictions shall survive the termination or expiration of this License.
4. MEMBER AREA
5. LICENCE RESTRICTIONS
Licensee may not: (a) reproduce or distribute all or any portion of the Software to any third party; (b) remove any proprietary notices from the Software or any copy thereof; (c) sell, assign, rent, transfer, distribute, act as a service bureau, or grant rights in the Software to any other person without the prior written consent of the Vendor; (d) export or re-export the Software in violation of U.S. export laws; (e) use the Software for any commercial purpose for the benefit of any third party; or, (f) use the Software or any related services to develop, generate, transmit or store information that: (i) infringes any third party's intellectual property or other proprietary right; or (ii) is illegal; or, (g) place any logos or branding items in any of the end user facing menu screens generated by the Software other than the brand associated with the registered trademarks of Soholaunch.
6. DELIVERY AND INSTALLATION
Unless otherwise agreed by Vendor in writing, Licensee is solely responsible for delivery and installation of the Software. Licensee may complete delivery and installation of the Software by accessing the Member Area of the Vendor website. Upon receipt of full payment, Vendor will e-mail Licensee a license number and password that will enable Licensee to access the Member Area.
Licensee may make a single copy of the Software for archival purposes and may use such copy only when the original copy is not in use. Licensee may not use the Software on more than one server or allow concurrent use of the Software with any third party.
8. COPYRIGHT AND OTHER PROPRIETARY RIGHTS
The Software is protected by copyright and other laws, and all intellectual property rights in the Software belong to Soholaunch. Except as provided in Sections 1 and 7 herein, copying or storing the Software is expressly prohibited unless Licensee obtains prior written permission from Soholaunch. Except for the limited license granted to Licensee, Soholaunch reserves all right, title and interest to the Software and all associated icons and graphics, as well as the SOHOLAUNCH trademarks ("the Vendor Marks"). Title to and ownership of the Software and the Vendor Marks, including without limitation all intellectual property rights therein, shall remain the exclusive property of Soholaunch.
Vendor may terminate this Agreement if Licensee fails to comply with the terms of this Agreement or any applicable agreement relating to professional or other services Vendor may provide to Licensee. Licensee may terminate this Agreement at any time by destroying or removing from all hard drives, networks, and other storage media all copies of the Software. Upon any termination, Licensee must remove the Software from its computer equipment and destroy all originals and copies of the Software in its possession. The provisions of Sections 3, 5, 8, 12, 13, 14, and 15 herein shall survive any termination of this Agreement and shall be effective in accordance with their terms.
10. DISCLAIMER OF WARRANTIES
THE SOFTWARE HEREIN IS LICENSED AND PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND LICENSEE ASSUMES ALL RISK WITH REGARD TO ITS INSTALLATION, CONFIGURATION AND USE. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY VENDOR, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FURTHER, VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, ACCURATE, COMPLETE, OR ERROR-FREE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SOFTWARE AND ANY ASSOCIATED SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION ON LIABILITY AND DISCLAIMER OF CONSEQUENTIAL DAMAGES
LICENSEE ASSUMES ALL RISK ASSOCIATED WITH THE INSTALLATION AND USE OF THE SOFTWARE. IN NO EVENT SHALL VENDOR BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED, PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, COMPUTER FAILURE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR PERFORMANCE OF ANY RELATED SERVICES, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VENDOR'S CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS LICENSE SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE TO VENDOR FOR THE USE OF THE SOFTWARE. LICENSEE HEREBY RELEASES VENDOR FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
12. GOVERNMENT USES
The Software Application and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252-227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
13. EXPORT CONTROLS
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Software to countries or persons prohibited under the export control laws. By downloading the Software, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Software.
Should Licensee decide to transmit to Vendor's website by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, Licensee agrees such submissions are unrestricted and shall be deemed non-confidential and Licensee automatically grants the Vendor and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform the same.
Licensee acknowledges that upon access of the Software by an end user, the following information is transmitted from Licensee's server(s) back to Soholaunch: Software Serial Number, IP address, Domain Name, Server Software Type, Owner's Name, Owner's Email Address and other information used for tracking compliance with the terms of this Agreement. Licensee grants Soholaunch the right to use such information for licensing compliance. Licensee agrees to cease using and to disable any Software that is found to be not in compliance with this Agreement including nonpayment according to the terms under which the Software was licensed by Licensee or by Vendor and grants Soholaunch and Vendor the right to disable Licensee's and/or Licensee's customer's client's access to any such Software and holds Soholaunch and Vendor harmless against any claim related to such account termination or interruption to Licensee's website.
16. GENERAL TERMS
This Agreement is governed by the laws of the State of Georgia (USA). THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG); rather, such rights and obligations shall be governed by and construed under the laws of the State of Georgia (USA), without reference to conflict of laws principles. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the American Arbitration Association, Commercial Arbitration Rules. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Atlanta, Georgia. The language to be used in the arbitral proceedings shall be English. The governing law of the arbitration shall be as set forth in this Agreement. All decisions of the arbitrator shall be in writing and include findings of fact and conclusions of law. Except where otherwise expressly specified within this Agreement, the rights and remedies granted to a party under this Agreement are cumulative and in addition to and not in lieu of any other rights or remedies which such party may be entitled to hereunder, at law or in equity. If any provision of this Agreement is found to be invalid by any Court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or another term. This Agreement constitutes the entire Agreement between Licensee and the Vendor with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of the Vendor.
(C) Copyright 1999-2011 Soholaunch.com, Inc. All rights reserved.
UMBRELLAR WEBSITE BUILDER TERMS AND CONDITIONS
These types of sites are not allowed on Umbrellar Web Builder:
- Adult: involving nudity in a sexual context, exposed genitalia or adult themes
- Copyrighted Content: music, movies or games that you do not own the rights to
- Spam/SEO: a site whose sole purpose is to gain Google ranking, Facebook "likes", etc
- Phishing: a site meant to trick users into providing their username and password
- Illegal Content: content which may be illegal in the United States or under the laws of other countries
- Scams: get rich quick, pyramid/MLM, or other dubious schemes
- Excessive Advertising: placing excessive advertising on your site, including more than three ad units per page
- File Hosting: including sites that are not created with the Umbrellar Web Builder editor
- Injurious Experience: sites using the "Custom HTML" element that provide a horrible user experience, such as extreme flashing banners, excessive animated movement, or content that could provoke seizures in unsuspecting visitors
- Illegal/Inappropriate Products: sites that offer or sell items that are illegal, weapons, counterfeit, stolen, fraudulent, infringing, violate rights of privacy/publicity, offensive, pornographic, or manufactured/intended to be weapons
This list is a quick reference and is not meant to be complete. For more specific information, please read carefully the Terms below.
1. Acceptance of terms
Welcome to Umbrellar Limited’s (“Umbrellar”) website creation service, powered by Weebly, Inc (“Weebly”). Your use and access to the website hosting services, websites, communication tools, mobile applications, and ecommerce tools and other services (collectively the “Service”) that are available through the website and associated domains of www.umbrellar.nz (the “Site”) is subject to these Terms of Service ("Terms"). These Terms are the entire agreement between you and Umbrellar. These Terms will also apply when you use the Service on a trial basis. By using the Service in any way, you agree to and accept these Terms, our Privacy Notice, and any other legal notices or guidelines posted on the Site. If you are using our Service for an organisation, you are agreeing to these Terms on behalf of that organisation. If you do not agree to these Terms, do not use the Service.
2. Description of service
Our web-based Service allows users who register for an account (each an "Account Holder") to create and update an online web site. Once registered, each Account Holder receives his or her own Web Site and may post "Content" (defined in Section 7). Any new features on the Service, including the release of new tools and resources, shall be subject to these Terms. To use the Service, you must have access to the Internet, either directly or through devices that access web-based content, and you must pay any fees associated with Internet access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a web-enabled computer. The Service may include certain communications from us, such as service announcements, administrative messages, and the Umbrellar Newsletter.
To register as an Account Holder, you must provide us with a valid email address and other information ("Registration Data"). You will choose a password and account designation for your web sites during the registration process and you will obtain a Umbrellar ID. You are responsible for maintaining the confidentiality of the password and account, and for all activities that occur under your account. In consideration of use of the Service, you agree to maintain and update true, accurate, current and complete Registration Data. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Umbrellar has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service or any portion thereof. Individuals under the age of 13 are prohibited from creating or using accounts through Umbrellar. Students under the age of 13 may, however, use the Umbrellar web builder through special student accounts created by their teachers through education.weebly.com, provided the teacher has obtained signed parental consent from the student's parents.
4. Umbrellar Privacy Notice
Our Privacy Notice, which is part of these Terms, describes how we collect, protect, and use your Registration Data and certain other information about you. We encourage you to read the Privacy Notice, and to use the information it contains to help you make informed decisions.
5. Website account and security
You are responsible for maintaining the security of your account and web site, for all activities that occur or actions taken under the account or in connection with the web site. You agree to immediately notify us in writing of any unauthorised uses of the account or any other breaches of security. We will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any of your acts or omissions or those of any third party, including damages of any kind incurred as a result of such acts or omissions.
6. Proprietary Rights
The Service, all confidential and proprietary software used in connection with the Service, Materials, content contained in sponsor advertisements or in information presented to you through the Service or by advertisers, and all other materials and services provided by or through Umbrellar are owned by us or other parties that have licensed their materials, content, or provided services to us, and are protected by copyright, trademark, trade secret, and other intellectual property laws.
“Materials” means any necessary software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted, as well as all derivative works thereof.
Umbrellar gives you permission to use the Materials to the extent, and only to the extent, necessary to access and use the Service in accordance with these Terms. This permission does not permit you to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in these Terms. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Service or Materials, create derivative works based on or in any manner commercially exploit the Service or Materials, in whole or in part, other than as expressly permitted in these Terms. Any use of the Service or Materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors or advertisers, as applicable, is expressly prohibited. We reserve all rights not expressly granted in these Terms.
All trademarks, service marks, logos, slogans, and taglines (individually and collectively, “Mark” or “Marks”) are the property of Umbrellar, or their respective owners. Except as otherwise specifically provided herein, no license or right to use any Mark is granted without the express written permission of Umbrellar, or the respective third-party Mark owner.
We do not want to receive confidential or proprietary information from you through the Service or by email. Unless otherwise agreed in writing by an authorised Umbrellar representative, any material, information or idea you transmit to us by any means may be disseminated or used by us or our affiliates without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. However, this provision does not apply to Content or to personal information that is subject to our Privacy Notice.
7. Your rights in your content
Umbrellar does not claim ownership of your Content, but you give us your permission to host your Content on the Service. This permission exists only for as long as you continue to use the Service or remain an Account Holder.
8. Content and conduct rules and obligations
All information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials you post on a web site via the Service ("Content") are the sole responsibility of the person from which such Content originated. You are responsible for all Content that you upload, post, transmit or otherwise make available via the Service. We do not control the Content you post via the Service.
By using the Service, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will we be liable for your Content or the content of any third party, including, but not limited to, for any errors or omissions in your Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that we do not pre-screen Content, but that we shall have the right (but not the obligation) to refuse, move or delete any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in our sole discretion. You must evaluate, and bear all risks associated with, the use of any Content. You may not rely on any Content created by us. You acknowledge and agree that we may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect our rights, property, or personal safety and those of our users and the public.
The technical processing and transmission of the Service, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You will not:
- upload, post, transmit or otherwise make available any Content that:
- is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
- you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party (e.g., music, movies, images, e-books, or games you do not own the rights to);
- is unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", such as (i) sending mass email to recipients who haven't requested email from you or with a fake return address, (ii) promoting a site with inappropriate links, titles, descriptions, or (iii) promoting your site by posting multiple submissions in public forums that are identical;
- contains software viruses, worms, Trojan horses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of the Service, - computer software or hardware or telecommunications equipment, or may impact the ability of any Umbrellar user to access the Service;
- is intended to take advantage of a user such as "get rich quick," "get paid to surf," pyramid/multi-level marketing, or other dubious schemes; or
- is adult in nature, such as any nudity in a sexual context or any Content with adult themes or reveals exposed genitalia;
- harm minors in any way;
- "stalk," “bully,” or otherwise harass another;
- impersonate any person or entity, including, but not limited to, an Umbrellar official, - forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, federal or foreign laws or regulations. You must comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. If you use the Site, the Service, or the Materials outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation, rules regarding acceptable online conduct, data privacy, and export and import regulations of other countries;
- promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
- use the Service as a forwarding service to another web site or to fraudulently manipulate Google or other SEO ranking or Facebook or other social networking or website “likes” and similar voting mechanisms;
- solicit a third party’s passwords or personal identifying information for unlawful or phishing purposes;
- exceed the scope of the Service that you have signed up for (e.g., by accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other user comments or content);
- include more than three ad units per page, or any advertising that greatly reduces the usability of the Site;
- upload files for the sole purpose of having them hosted by us and for use outside of a web site created using the Service (i.e., created with the website editor);
- create a web site that provides an injurious user experience with custom programming. Examples include, but are not limited to, extreme flashing banners, excessive animated movement, or content that could provoke seizures in unsuspecting visitors; or
- use, under any circumstance, any open source software subject to the GNU Affero General Public License v.3, or greater.
We retain the right to terminate any account or user who has violated any of the above prohibitions.
9. Selling Through Umbrellar
Some of our Services and Materials may offer you the opportunity to sell or purchase goods and services through sites hosted or designed by Umbrellar (such goods and services, “Commercial Products”). We are merely providing the platform for buyers and sellers to conduct transactions for these Commercial Products. In order to sell through Umbrellar, you must be 18 years or older or at least the age of majority where you reside or from where you use our Services and you must provide your full legal name, current address, valid email address, and any other information requested by us. In the event of a dispute regarding account ownership, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
YOU WILL NOT:
- offer or sell any Commercial Products that:
- are illegal or potentially illegal, including those that are counterfeited, stolen, or fraudulent. Commercial Products sold using the Services must comply with all applicable laws, including Commercial Products sold to individuals outside of the U.S.;
- infringe or have the potential to infringe the intellectual property or privacy rights of another or that may be libellous, slanderous, or otherwise defamatory;
we determine, in our discretion, are inappropriate, offensive, pornographic, sexually explicit, or violent; or
- are manufactured as, or primarily intended to be used as, weapons, including firearms, restricted devices, or ammunition. We reserve the right to determine, in our sole discretion, whether Commercial Products constitutes “weapons” for purposes of these Terms; or
- use images or names of any third party (including notable personalities or celebrities) when offering or selling Commercial Products without first obtaining that third party’s permission.
You may agree to a one (1) month, six (6) month, twelve (12) month or twenty-four (24) month contract agreement with Umbrellar. Some of the features on the Service require payment of fees, as described for each Service on the Site (“Fees”). If you sign up for these features, you must pay all applicable feature Fees. We reserve the right to change our prices and/or bundle certain parts of the Service together for pricing purposes, and may do so at any time. You authorise us to make any reasonably necessary inquiries to validate your account and financial information.
All Fees are in NZD and are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment thereof. If you purchase any Services that we offer for a Fee, you consent to Umbrellar, or our third party service providers, storing your payment card information and you authorise us to charge you (a) any Fees for Services you may purchase, and (b) any applicable taxes in connection with your use of the Services to the payment card you provide, and you will reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorise us to continue billing you and you will remain responsible for any uncollected Fees.
AT THE END OF THE CONTRACT TERM, YOUR CONTRACT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL CONTRACT TERM UNTIL EXPLICITLY CANCELLED BY YOU, AND YOUR PREFERRED PAYMENT METHOD WILL BE CHARGED ACCORDINGLY. YOU MAY SEND CANCELLATION REQUESTS BY EMAILING [email protected] OR BY CALLING OUR HELP CENTER AT ANY TIME.
11. Cancellation; Service Changes
If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your web site and we may delete all information on your web site. We accept no liability for such deleted information or content.
For as long as we continue to offer the Service, we will provide and seek to update, improve, and expand the Service. As a result, we allow you to access the Service as it may exist and be available on any given day and have no other obligations, except as expressly stated in these Terms. We may modify (e.g., change data storage or capacity limits), replace, refuse access to, suspend or discontinue the Service, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes are effective upon their posting on our site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any Content available as part of your account, with or without notice if deemed by us to be contrary to these Terms. For avoidance of doubt, we have no obligation to store, maintain, or provide you a copy of any Content that you or others provide when using the Service.
12. Money Back Guarantee
All paid Umbrellar website builder plan accounts, include a 30-day money back guarantee. If you are dissatisfied with such account service for any reason, you can receive a full refund if you cancel your account within 30 days of activation. Please direct refund requests to [email protected] with the subject line: Refund Request. At any time during your contract term, you may upgrade or downgrade your service with Umbrellar. In the event of a service downgrade, a prorated credit will be issued to your Umbrellar account for the difference in the cost of the two services for the remainder of your original contract term. This credit will be applied to future months of service with Umbrellar, and cannot be refunded to you in cash. Downgrading your account may cause the loss of Content, features, or capacity of your account. We do not accept any liability for such loss.
13. Third Party Services, Software, and Websites; No Implied Endorsement
Umbrellar is not responsible or liable for any loss or damage incurred as a result of your use of any third party’s service, product, software, content, or website (collectively, “Third Party Materials”) whether or not you were linked to or directed to any Third Party Materials through the Site. Third Party Materials, such as email, e-commerce and payment services including but not limited to, Authorize.net, PayPal, Square, and Stripe payment options, may be subject to the applicable third party terms of service and privacy policies, and you are solely responsible for reviewing, agreeing to, and complying with any such terms before you use any Third Party Materials. Your use of any Third Party Materials is at your own discretion and risk. If you do not agree to the third party’s terms of service or license agreement, do not download or use the Third Party Materials. Your use of any Third Party Materials obtained through the Service does not transfer to you any rights, title, or interest in or to the Third Party Materials beyond the terms contained in the third party provider's terms of service or license. Any reference on the Site to any Third Party Materials is not an approval or endorsement by us of such Third Party Materials.
Third Party Payment Processors: Umbrellar uses third party payment processors to assist us in securely processing your personally identifiable payment information. Such third party processors’ use of your personal information is governed by their respective privacy policies which may or may not contain privacy protections as protective as the Umbrellar Privacy Notice. Payments are currently processed and managed using the third party vendors below. We will inform you which payment processors are used when processing your payments.
If you choose, you may contribute website themes ("Custom Themes") to the Service for use by other users. You hereby grant and agree to grant us an exclusive, perpetual, sublicensable, worldwide, irrevocable, royalty-free right and license to use, copy, modify, and create derivative works of any Custom Themes contributed by you to the Service, including the HTML code and associated media assets.
15. Designer Platform Terms
If you use our Designer Platform Service to design a web site (a “Client Website”) for a third party (your “Client”), your use of the Service shall be subject to these additional terms.
Your relationship with your Client is strictly between you and the Client. We will not be a party to any agreement you have with your Client. The manner and means that you choose to perform your services are in your sole discretion and control; however you agree to perform these services in a timely and professional manner, consistent with industry practice and in conformance with these Terms.
You accept full responsibility for all Client Websites under your account and for each Client Website’s adherence to these Terms.
While we intend to allow you to resell the service under a private label, this private label is in no way guaranteed and we will in no way be held responsible for any failure to maintain its private label.
In the event your Client contacts us, we will direct them to contact you. In the event you fail to support your Client and we receive a request from your Client stating that you have not been responsive, we reserve the right to support your Client directly.
Payments for your use of the Designer Platform Service are calculated on a per website basis. Each Client Website under your account that’s published live to a Client’s domain will incur monthly service charges. These service charges are billed to the credit card on file for your Umbrellar account.
Service charges are billed each month for the upcoming month’s service, based on the total service charges of all Client Websites. If a new Client Website is published mid-month, a pro-rated amount will be included on your next month’s invoice.
No refunds will be given for any days remaining in your current billing cycle.
You understand and agree that you, as the Account Holder, are ultimately responsible for payment for every Client Website under your account. If, at any time, the billing obligations of any Client Website are not met, we will have the right to disable the Client Website until the billing obligation is met.
16. Resale of Service
You will not reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service without our express written permission, which may be in the form of a separate written agreement with Umbrellar.
You will indemnify and hold harmless Umbrellar, and its subsidiaries, licensors, affiliates, officers, directors, agents, co-branders, partners, employees, successors, and assigns (collectively “Indemnified Parties”) from any and all liability, loss, claim, damages, expenses, costs or demands, (including but not limited to reasonable attorneys' fees), incurred or made against the Indemnified Parties by any third party in connection with any claim arising from or related to: (a) your use (or anyone using your account/s) use of the Service, the Site or the Materials, (b) your Content, (c) any Commercial Products you offer on or through the Site or using our Services, or (d) your use of the Domain Services. This includes, but is not limited to, any breach or violation of these Terms by you or anyone utilizing your account. You must fully cooperate at your expense as required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
18. Disclaimer of warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. UMBRELLAR DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICE DOES NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
THESE TERMS APPLY SOLELY TO THE SERVICE. AS PART OF THE SERVICES PROVIDED TO OTHER UMBRELLAR USERS, WE HOST WEBSITES FOR CERTAIN THIRD PARTIES (“THIRD PARTY SITES”). THIRD PARTY SITES INCLUDE CONTENT GENERATED BY THIRD PARTIES AND ARE NOT UNDER THE MANAGEMENT AND CONTROL OF UMBRELLAR. UMBRELLAR IS NOT RESPONSIBLE FOR SUCH THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION, THE ACCURACY, SUFFICIENCY, CORRECTNESS, RELIABILITY, VERACITY, COMPLETENESS OR TIMELINESS THEREOF, ANY LINK CONTAINED THEREIN, OR ANY CHANGES OR UPDATES THERETO, OR ANY GOODS OR SERVICES SOLD THEREON. YOUR ACCESS OR USE OF ANY THIRD PARTY SITE IS GOVERNED BY THE TERMS APPLICABLE TO SUCH THIRD PARTY SITE. THE HOSTING OF ANY THIRD PARTY SITE BY UMBRELLAR DOES NOT IMPLY AN ENDORSEMENT THEREOF BY UMBRELLAR, OR OF THE PROVIDER OF SUCH CONTENT OR SERVICES, OF ANY THIRD PARTY SITE.
NEITHER UMBRELLAR NOR ANY THIRD PARTY PROVIDERS, PARTNERS, OR AFFILIATES WARRANT THAT THE SITE, ITS SERVERS, THE MATERIALS OR THE SERVICE, OR ANY EMAIL SENT FROM THE SITE OR ANY THIRD PARTY PROVIDERS, PARTNERS, OR AFFILIATES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UMBRELLAR AND ITS LICENSORS MAKE NO WARRANTY OR REPRESENTATION THAT THE SERVICES, MATERIALS, OR SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS.
19. Limitation of Liability
WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UMBRELLAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE SERVICE.
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICE, OR THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICE, AND THE MATERIALS. UNDER NO CIRCUMSTANCES SHALL UMBRELLAR, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICE, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICE, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE.
20. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU.
21. U.S. Government Restricted Rights
The materials on the Service are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the U.S. Government constitutes acknowledgment of our proprietary rights in them.
22. Agreement to Arbitrate; Class Waiver
We want to address your concerns or issues before filing a claim against Umbrellar. Please contact us at [email protected] We'll contact you by email to informally resolve the dispute. You or Umbrellar may start a formal dispute resolution process if a dispute is not resolved within 10 business days of your submission.
YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS AND YOU WILL NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION (E.G., CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR CONSOLIDATION WITH OTHER ARBITRATIONS).
Any claim relating to these Terms that is not resolved through our informal process, or as set forth below, will be settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with JAMS Rules. The arbitration will take place in San Francisco, California, in the English language, and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding arising from these Terms will be entitled to costs and attorneys’ fees. If any part of these Terms is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or to enforce intellectual property rights (e.g., copyright, trademark, trade secret, or patent rights) without first engaging in our informal dispute resolution process or arbitration. In the event this agreement to arbitrate does not apply to you or your claim, any judicial proceeding will be brought in the federal or state courts of San Francisco County, California. You and Umbrellar agree to submit to the personal and exclusive jurisdiction of the courts in San Francisco, California. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUR OF OR RELATED TO USE OF THE SERVICE OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
We may provide notices to you via either email or regular mail. The Service may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Service. These Terms and the relationship between you and Umbrellar shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Umbrellar agree to submit to the personal and exclusive jurisdiction of the courts located within San Francisco, California. The failure of Umbrellar to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms constitute the entire agreement between you and us and govern your use of the Service, superseding any prior agreements (including, but not limited to, any prior versions of these Terms). You also may be subject to additional terms and conditions that may apply when you use affiliate or other services, third-party content or third-party software. If any provision of these Terms or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect. You acknowledge and agree that you are each waiving the right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, more than one person's claims may not be consolidated under any circumstances, in any form of any class or representative proceeding or otherwise.
Please visit our support page to report any violations of these Terms.
25. Fair Use Policy
The use of Umbrellar’s Web Builder Product is governed by a Fair Use Policy, stated here, which covers the fair use of resources on Umbrellar web builder plans, where there is an indication of “unlimited”.
Bandwidth (data transfer)
- Umbrellar Limited provides 'unlimited' data transfer on Web Builder plans which offer generous fair use data transfer. Data transfer covers bandwidth both Nationally (New Zealand), and International data per month. This 'unlimited' bandwidth provides customers with data transfer per month as they wish to use without any additional charge.
- Should Umbrellar Limited deem a customer’s account as exceeding fair use bandwidth consumption, Umbrellar Limited will notify the customer and allow the customer to remedy the problem.
- However, should a customers’ bandwidth usage be significantly greater than fair use, Umbrellar Limited reserves the right to suspend the customers account where appropriate. Umbrellar Limited will discuss available options that could provide better service for the customer.
- Umbrellar Limited provides 'unlimited' data storage on Web Builder plans which offer generous fair use data storage. This unlimited data storage provides customers with data storage per month as they wish to use without any additional charge.
- Should Umbrellar Limited deem a customer’s account as exceeding fair use data storage Umbrellar Limited will notify the customer and allow the customer to remedy the problem.
- However, should a customers’ data storage be significantly greater than fair use Umbrellar Limited reserves the right to suspend the customers account where appropriate. Umbrellar Limited will discuss available options that could provide better service for the customer.
CUSTOMER SURVEY PRIVACY NOTICE
By completing and submitting any survey form distributed by Umbrellar or another company in the Umbrellar group of brands, you agree to your details being used for the purposes of administrating your account and informing internal business process decisions. The information will only be accessed by necessary Umbrellar staff. You agree that you understand your data will be held securely in line with our terms and conditions and will not be distributed to third parties. You have the right to change or access your information.