|SERVICES AGREEMENT TERMS AND CONDITIONS
Notwithstanding any other written or oral statements you believe NameCaptor may have made to you, this agreement constitutes the entirety of NameCaptor' agreements with and obligations to you and the entirety of your contractual rights in your relationship with NameCaptor.
2. Domain Registration Service
The NameCaptor service can acquire a registered domain name that subsequently becomes or is made available for public registration. To place a order ("Backorder") the customer is required to pay in advance the established price for the order. If NameCaptor is not able to register the domain requested by the user, NameCaptor will refund the full amount corresponding to the placed order to the user. If a domain name that is sought via our service becomes available for public registration due to any circumstance, our service will make commercially reasonable efforts to acquire the domain name and register it through one of our registrar partners on your behalf.
We do not and cannot guarantee acquisition of any domain name, nor can we guarantee at which registrar the name will ultimately be registered upon its deletion by the applicable registry operator. To maximize your chances of getting the domain name you want, we use a network of different registrars to attempt to acquire domain names. The domain name you backorder may therefore be registered through any of these registrars.
When NameCaptor registers a domain in response to your order, you acknowledge that the duration of the initial registration term may vary slightly depending on the method we use to fulfill your order. If the domain was registered to you after deletion from a domain registry, the registration term will be for 365 days from the date of acquisition.
In order to assist you in identifying and determining the status of domain names you may wish to order, NameCaptor may offer on its site Whois look-up services, in addition to services that provide information on names that are about to or have already expired, are about to be deleted, or have just been made available to the public for registration via our site. Information about the status of a domain name is offered on a commercially reasonable basis: to NameCaptor' knowledge, no entity is able to reliably offer complete and real-time information on the status of a domain name during the time just before or soon after its deletion by the registry. You should always attempt to obtain independent confirmation of a domain name's status by performing a Whois look-up, found on the website of any ICANN-accredited registrar, including NameCaptor' partners, prior to placing an order.
All domain names registered through NameCaptor are pointed to a nameserver controlled by NameCaptor. The web page then provided may be modified at any time by NameCaptor without prior notice to you and may include such things as, without limitation (i) links to additional products and services offered by NameCaptor, (ii) advertisements for products and services offered by third-parties, and (iii) an internet search engine interface. Once a domain name is registered for you, if for any reason you do not wish to have your domain name pointed to this web page, you should change the nameserver settings for that domain by accessing the domain at the acquiring registrar by using the account login information provided by NameCaptor and/or the registrar at the time of the registration.
If two or more NameCaptor customers have ordered a particular domain, and NameCaptor is successful in registering the desired domain when it becomes available, NameCaptor will conduct an auction in a 3rd party auction site of its choice among those customers who ordered the domain, and the domain will subsequently be awarded to the highest bidder in such auction. If you are the winning bidder when the auction ends, you are obligated to pay the amount of your winning bid. If no one bids on the domain during the auction, NameCaptor will award the domain to the customer who was chronologically first to place an order on the domain. Rest of users will be refunded.
Following the successful completion of an auction for a particular domain, NameCaptor will notify the winning bidder and attempt to collect payment. NameCaptor may in our sole discretion require the winning bidder to tender payment to NameCaptor in a manner of our choosing, including but not limited to credit card, check, or wire transfer. All fees collected by NameCaptor are non-refundable, in whole or in part.
4. Required Data
In order for us to register a domain name through one of our registrar partners on your behalf, you agree to provide certain current, complete, accurate, and reliable contact data at the time of registration (the "Contact Data") about you and your site host as required by the registration process. You acknowledge that the registrar is required to make Contact Data publicly available on a WHOIS database as expressed in the respective registrar's service agreement, and you expressly consent to such disclosure.
You agree to update this information as follows: (i) if your Contact Data changes after you have supplied it to us, but before we order a domain name registration on your behalf, you agree to update the information as it appears in your account on our web page; and (ii) if your Contact Data changes after we order a domain name registration on your behalf, you agree to update the information directly with the registrar. (Please note that updating Contact Data on our site will not change the information maintained by the registrar in its WHOIS database on any of your existing domain registrations, even if the registration was facilitated by NameCaptor; you must update existing domain registrations directly with the registrar.)
Because accurate and reliable Contact Data is important for the domain name system to work properly, is will be considered a material breach of this Agreement if you: (i) willfully provide inaccurate or unreliable Contact Data, (ii) willfully fail promptly to update Contact Data with us and/or the registrar, or (iii) fail to respond within fifteen days to our inquiries or those of the registrar regarding the accuracy of the Contact Data. Such a breach will be a sufficient basis for us or the associated registrar to cancel the domain name registration and/or other services without further notice to you.
In order for you to use other NameCaptor services you also agree to provide and maintain certain current, complete, accurate, and reliable information about you and your email addresses ("User Profile"). The User Profile information is needed to send you notifications and other information regarding your service. The User Profile information is entirely independent of the Contact Data described above. You agree to update the User Profile directly through your account accessible at our web site. Because it is not possible for us to provide our notification services without accurate and reliable User Profile information, it will be considered a material breach of this Agreement if you (i) willfully provide inaccurate or unreliable User Profile information, or (ii) willfully fail promptly to update User Profile information provided to us. Such a breach will be a sufficient basis for us to cancel the services without further notice to you.
5. Modification of Agreement
You acknowledge that the Internet, the domain name system and its policies, and the practice of registering, monitoring, and administering domain names are continually evolving, and therefore you agree that NameCaptor may modify this Agreement, as well as any additional rules or policies that are or may be published by NameCaptor, as necessary to comply with any other agreements that NameCaptor is currently bound by or will be bound by in the future, as well as to adjust to changing business circumstances. Any such addition or modification will be binding and effective immediately upon posting of the revised Agreement or change to the service(s) on NameCaptor' web site, or upon notification to you by e-mail or regular mail. You agree to periodically review our web site, including the current version of this Agreement available on our web site, to be aware of any such modifications. Your continued use of any NameCaptor services or of any domain name registered through one of our registrar partners on your behalf through NameCaptor will constitute your acceptance of this Agreement as well as modified or additional rules or policies that are or may be published by NameCaptor or by our registrar partners. If you do not agree to any such changes, you may request that any order you placed be cancelled. You acknowledge and agree that such cancellation will be your exclusive remedy and our sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by NameCaptor.
IF YOU ARE ACTING AS AN AGENT: You represent that you have the authority to bind your principal to all terms and conditions contained in this Agreement. You acknowledge and agree that if you license the use of your registered domain name to a third party, you remain the domain name holder and/or subscriber of record and remain responsible for all obligations under this Agreement, including payment obligations, and providing and updating full contact information. A breach of this Agreement by your principal or licensee will be considered a breach by you.
IF YOU ARE ACTING THROUGH AN AGENT: You agree that, if your agent (e.g., an Internet Service Provider, employee, legal counsel, etc.) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the Dispute Policy as described later in this Agreement. Your continued use of our services will ratify any unauthorized actions of your agent. By acting on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement and that he or she has apprised you of the terms and conditions of this Agreement. In addition, you are responsible for any errors made by your agent. A breach of this Agreement by your agent will be considered a breach by you.
7. Prohibited Conduct
Customer agrees to use NameCaptor only for lawful purposes. While NameCaptor has no responsibility to monitor your use of domain names, NameCaptor reserves the right to terminate any account for which a NameCaptor hosted domain is found to be pointing or otherwise directing traffic to any material in violation of any U.S. or state statute or regulation, including but not limited to material in violation of U.S. copyright law, and material judged to be threatening or obscene. Any misuse of NameCaptor resources that disrupts the normal use of the system is strictly prohibited. Such system abuse may lead to termination of the account. Examples of system abuse include but are not limited to spawning many processes that consume resources, consuming excessive amounts of disk storage or main memory or CPU for long periods of time, etc. Any attempts to penetrate NameCaptor' security will result in the termination of the Customers' account without notice, as well as notification of appropriate law-enforcement agencies.
Any failure by you to abide by any provision of this Agreement, any NameCaptor operating rule or policy or the Dispute Policy, may be considered by us to be a material breach of this Agreement. We may provide written notice, describing the breach, to you. If within ten (10) calendar days of the date of such notice, you fail to provide evidence that is reasonably satisfactory to us that you have not breached your obligations under the Agreement, then we may delete the registration or reservation of your domain name or terminate the services without further notice. We reserve the right to suspend any NameCaptor services during such 10-day period. Any such breach by you will not be deemed to be excused simply because we did not act earlier in response to that, or any other, breach by you.
You agree that we may terminate your right to use our service(s) if the information that you are obligated to provide to register your domain name through one of our registrar partners or subscribe for other NameCaptor service(s), or that you subsequently modify, contains false or misleading information, or conceals or omits any information we would likely consider material to our decision to register your domain name through one of our registrar partners or to continue to provide you domain name services. Furthermore, you agree that we may suspend, cancel or transfer your domain name services in order to: (i) correct mistakes made by us, a registrar partner, or the registry in registering your chosen domain name, or (ii) to resolve a dispute under the Dispute Policy. We will not refund any fees paid by you if we suspend or terminate your services.
10. Customer Representations and Warranties
You agree and warrant that: (i) the information that you or your agent provide to us during the application process to register your domain name through one of our registrar partners or to apply for other NameCaptor services is, to the best of your knowledge and belief, accurate and complete, and that any future changes to this information will be provided to us in a timely manner according to the modification procedures in place at that time, (ii) to the best of your knowledge and belief neither the registration of your domain name nor the manner in which you intend to use such domain name or any other NameCaptor service will directly or indirectly infringe the legal rights of a third party, including trademark rights, (iii) you are not registering the domain name for an unlawful purpose; (iv) you will not knowingly use the domain name in violation of any applicable laws or regulations, (v) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, and (vi) you are of legal age and capacity to enter into this Agreement.
You agree and acknowledge that it is your responsibility to determine whether your domain name registration infringes or violates someone else's rights, including, but not limited to, whether any foreign language translations of your domain name, either between roman-alphabet languages, between non-roman alphabet languages, or between roman-alphabet and non-roman alphabet languages, infringe or violate someone else's rights.
11. NameCaptor Disclaimer of Warranties
You agree that your use of our service(s) is solely at your own risk. You agree that all of our services are provided on an "AS IS," and "AS AVAILABLE" basis. NameCaptor EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NameCaptor MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU. We make no warranty that our services(s) will meet your requirements or that the service(s) will be uninterrupted, timely, secure or error free; nor do we make any warranty as to the results that may be obtained from the use of the service(s) or as to the accuracy or reliability of any information obtained in our newsletter or web site. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of our newsletter and website 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 such material and/or data. We make no warranty regarding any goods or services purchased or obtained through any of our services or any transactions entered into through such services. No advice or information, whether oral or written, obtained by you from us or through our newsletter or web site shall create any warranty not expressly made herein. To the extent that any jurisdiction does not allow the exclusion of such warranties, these disclaimers will apply to the greatest extent possible.
You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the Uniform Domain Name Dispute Resolution Policy (UDRP), (ii) any policy adopted by the Internet Corporation for Assigned Names and Numbers (ICANN), (iii) any registrar (including NameCaptor) or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures.
You also agree that NameCaptor shall have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your domain name registration at such time as NameCaptor receives (i) a properly authenticated notification from a court of competent jurisdiction, or (ii) an arbitration award requiring the suspension, cancellation, transfer or modification of your domain name registration.
12. Right of Refusal
You grant NameCaptor, in our sole discretion, the right to refuse to register your chosen domain name through one of our registrar partners, to refuse to subscribe you for other NameCaptor services, or to request deletion of your domain name at the acquiring registrar or cancel your services within thirty (30) calendar days from receipt of your payment for such services. In the event we request deletion of your domain name or cancel your services within such thirty (30) calendar day period, we may refund your applicable fees. You agree that we will not be liable to you for any loss or damages that may result from any such refusal, deletion or cancellation.
13. Dispute Policy
We do not check to see whether the domain name you select to register infringes the legal rights of others. We urge you to investigate to see whether the domain name you select or its use infringes legal rights of others. You may wish to consider seeking one or more opinions from competent trademark practitioners in connection with your domain name. You agree to assume all responsibility in selecting a domain name to register and/or monitor. Should we be sued or threatened with a lawsuit in connection with your domain name and/or subscription to any other of our services, we may turn to you to hold us harmless and indemnify us pursuant to the Indemnification provision of this agreement. Similarly, you recognize that we have no responsibility to determine whether domain names monitored or acquired by others through our site infringe your own rights in trademarks or domain names, and you agree to release NameCaptor from any legal claims asserting such a responsibility.
For domain name registrations facilitated by NameCaptor, you agree to be bound by the UDRP, as approved by ICANN on October 24, 1999, as modified from time to time, and incorporated here by reference. A copy of the current UDRP may be found at http://www.icann.org/udrp/udrp-policy-24oct99.htm and any modifications at www.icann.org. All other disputes between you and any party other than NameCaptor regarding your domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of the UDRP may be resolved between you and such other party through any court, arbitration or other proceeding that may be available.
We will not participate in any way in any dispute between you and any party other than us regarding the registration and use of your domain name, and/or NameCaptor services. You will not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend ourselves. NameCaptor will not honor registrations that NameCaptor reasonably believes infringe on its own trademarks. Should you fail to substantially prevail in any lawsuit brought against NameCaptor, NameCaptor will be entitled to recover its reasonable attorneys' fees and costs from you.
14. Limitation of Liability
NameCaptor AND ITS PARTNERS, AFFILIATES AND CONTRACTORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF NameCaptor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE EXPLICITLY DISCLAIM ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO:
(a) SUSPENSION, LOSS, OR MODIFICATION OF YOUR DOMAIN REGISTRATION;
(b) USE OR MISUSE OF YOUR DOMAIN NAME REGISTRATION;
(c) INTERRUPTION OF YOUR BUSINESS, WEB SITE, EMAIL, OR OTHER SERVICES;
(d) ACCESS DELAYS OR INTERRUPTIONS TO THIS WEB SITE OR ANY WEB SITES ACCESSED BY YOUR REGISTERED DOMAIN NAMES;
(e) NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION, OR MODIFICATION OF DATA;
(f) USE OR MISUSE OF YOUR USER NAME OR PASSWORD;
(g) FAILURE TO ACQUIRE OR RE-ACQUIRE A DOMAIN NAME;
(h) ERRORS, OMISSIONS, OR MISSTATEMETNS IN ANY AND ALL INFORMATION OR SERVICES PROVIDED UNDER THIS AGREEMENT;
(i) EVENTS BEYOND THE REASONABLE CONTROL OF NameCaptor, INCLUDING WITHOUT LIMITATION FAILURE OF ELECTRICAL OR TELECOMMUNICATIONS SERVICES; or
(j) APPLICATION OF ANY RELEVANT DISPUTE POLICY OR ANY OTHER ICANN (OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION) ADOPTED POLICIES.
NameCaptor' entire liability, and your exclusive remedy, with respect to any NameCaptor services provided under this Agreement and any breach of this Agreement is limited solely to the amount you paid for such services. IN NO EVENT WILL NameCaptor'S MAXIMUM AGGREGATE LIABILITY EXCEED THE LESSER OF THE TOTAL AMOUNT PAID BY YOU FOR SUBSCRIPTION TO ANY OF OUR SERVICES OR THE REGISTRATION OF THE DOMAIN NAME OR FIVE HUNDRED ($500.00) DOLLARS. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages; in such states, our liability is limited to the greatest extent permitted by law.
You agree to release, defend, indemnify, and hold NameCaptor and its directors, officers, employees, contractors, agents, strategic partners and affiliates harmless from all liabilities, claims and expenses (including attorney's fees, expenses, and NameCaptor' reasonable out-of-pocket costs) relating to or arising under this Agreement ("Claims"), your domain name or its use or renewal, the NameCaptor services provided hereunder, or your use thereof, including without limitation infringement of any intellectual property or other proprietary right of any person or entity, or from the violation of any NameCaptor operating rule or policy relating to the services provided. You shall not enter into any settlement or compromise of any Claims without NameCaptor' prior written permission, which permission shall not be unreasonably withheld. If, in the opinion of NameCaptor' legal counsel, a conflict of interest exists or may reasonably be expected to exist in connection with your assumption of NameCaptor' defense, NameCaptor shall be entitled to conduct and control its own defense. This indemnification is in addition to any indemnification required under the UDRP or any similar policy. When NameCaptor is threatened with suit by a third party, NameCaptor may seek written assurances from you concerning your promise to indemnify NameCaptor; your failure to provide those assurances may be considered by NameCaptor to be a breach of your Agreement and may result in deactivation of your domain name and/or any NameCaptor service.
This Agreement, and the services provided hereunder, will be governed by the laws of Lleida, Spain, without reference to rules governing choice and conflicts of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Lleida, Spain and both parties irrevocably consent to the exclusive jurisdiction and venue of such courts. Customer may not assign this Agreement, by operation of law or otherwise, without NameCaptor' prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Neither party's failure to enforce performance of any provision of this Agreement will not constitute a waiver of such party's right to subsequently enforce such provision or any other provision of this Agreement. If any provision of this Agreement, or portion thereof, is found to be unenforceable, such provision will be enforced to the maximum extent possible and the remainder of this Agreement will continue in full force and effect.
The parties are independent contractors and do not intend to create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Notice must be given to NameCaptor at the address set forth on its web site and to Customer at the administrative address listed in Customer's account. Notice will be deemed to have been received upon personal delivery (including confirmed fax), one day after mailing by nationally known overnight carrier or five days after mailing by certified mail, return receipt requested. This Agreement constitutes the entire understanding between the parties relating to the subject matter of this Agreement and supersedes all prior writings, negotiations or understandings with respect thereto. This Agreement will not be amended or supplemented by the preprinted terms or conditions on any purchase order, acknowledgment or other business form employed by either party. Except as set forth in Section 5, no modification or addition to this Agreement will have any effect unless it is set forth in writing and signed by both parties.
17. Registration of domain names
NameCaptor has partnerships or works with various registrars ("Registrars") for the purpose of registering domain names. Our registration service entails NameCaptor registering domain names on your behalf with one of our Registrars. Other than what is specifically stated in this Agreement regarding our registration of domain name service, it is the agreements between the particular registrar associated with a given domain name and the registrant of said domain name that will explain your rights and obligations when you register a domain name through NameCaptor. By this Agreement, you acknowledge that you have read and accept the terms of these respective registrar agreements. You also may be required, in case we can't create an account with a concrete registrar, to open an account yourself at said registrar before receiving the domain transfer.