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1. |
Definitions |
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1.1 |
"Agreement" means the Application read together with these terms
and conditions; |
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1.2 |
"Applicant" means the party making application for the delegation
or update of the Domain Name in terms of this Agreement, and who
shall be identified on line 2a of the Application; |
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1.3 |
"Application" means the application for the delegation or update
of the Domain Name submitted by, or on behalf of, the Applicant
and to which these terms and conditions apply; |
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1.4 |
"Domain Name" means the domain name in the ".co.za" namespace of
the Internet, designated by the Applicant in the Application, and
governed by the Agreement. |
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1.5 |
"Effective Date" means, in respect of the registration of the Domain
Name to the Applicant, the date on which such registration is
allocated by ZACR (as evidenced by an electronic message from
ZACR to Applicant confirming same);
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1.6 |
"ZACR" means ZA CENTRAL REGISTRY NPC, Registration No 1988\004299\08; |
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1.7 |
"Administration Sites": means ZACR's official administration
websites including, but not limited to: http://www.coza.net.za and https://www.registry.net.za |
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2. |
ZACR is responsible for delegating domain names in the ".co.za"
namespace of the Internet. These terms and conditions apply to all
co.za domain names. |
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3. |
Fees |
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3.1 |
Applicant shall, within 30 (thirty) days of the Effective Date,
pay the then current fee in respect thereof, as determined by
ZACR from time to time. In addition, Applicant shall, within
30 (thirty) days of the anniversary of the Effective Date pay an
annual renewal fee, as determined and published by ZACR from
time to time, in respect of the Domain Name registration. |
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3.2 |
Should applicant fail to pay any of the fees contemplated in this
clause 3 within the periods stated herein, ZACR may, without
derogating from any other right which it may have in terms of this
Agreement or otherwise, and without notice, withdraw the Domain
Name registration in whole or in part. |
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4. |
ZACR shall under no circumstances whatsoever be obliged to
determine the right of the Applicant to the Domain Name. Domain
names are registered on a "first-come-first-served" basis and the
registration of the Domain Name by ZACR shall in no way
constitute any indication or warranty of Applicant's right to
utilise such name. |
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5. |
Applicant's Warranties & Indemnity |
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5.1 |
Applicant hereby irrevocably represents, warrants and agrees that: |
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| 5.1.1 |
its statements in the Application are accurate and complete; |
| 5.1.2 |
it has the right without restriction to use and register the
Domain Name; |
| 5.1.3 |
it has a bona fide intention to use the Domain Name on a regular
basis on the Internet; |
| 5.1.4 |
the use or registration of the Domain Name by Applicant does not
or will not interfere with, nor infringe the right of any third
party in any jurisdiction with respect to trade mark, service
mark, trade name, company name, close corporation name,
copyright or any other intellectual property right; |
| 5.1.5 |
it is not seeking to use the Domain Name for any unlawful
purpose whatsoever, including, without limitation, unfair
competition, defamation, passing off or for the purpose of
confusing or misleading any person; |
| 5.1.6 |
at the time of the initial submission of the Application, and at
all material times thereafter, it shall have an operational name
service from at least two operational Internet servers for the
Domain Name. Each server is and will continue to be fully
connected to the Internet and be capable of receiving queries
relating to the Domain Name and responding thereto; |
| 5.1.7 |
it has selected the Domain Name without any input, influence or
assistance from ZACR. |
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5.2 |
Pursuant to the above warranties, Applicant hereby agrees that it
shall defend, indemnify and hold harmless ZACR, its directors,
officers, members, employees and agents, for any loss, damage,
expense or liability resulting from any claim, action or demand
arising out of or related to a breach of the aforementioned
warranties or the use or registration of the Domain Name,
including reasonable attorneys fees on an attorney and own client basis.
Such claims shall include, without limitation, those based upon
trade mark infringement, copyright infringement, dilution, unfair
competition, passing off, defamation or injury to reputation.
ZACR agrees to give Applicant written notice of any such
claim, action or demand within reasonable time of becoming aware
thereof. Applicant agrees that ZACR shall be defended by
attorneys of ZACR's choice at Applicant's expense, and that
Applicant shall advance the costs incurred in such litigation, to
ZACR on demand from time to time. |
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6. |
ZACR gives no warranties of any nature whatsoever with regard
to the Domain Name, the registration or use thereof and hereby
disclaims all such warranties, whether express or implied. |
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7. |
Applicant agrees that ZACR shall have the right to withdraw the
Domain Name registration (in whole or in part) or transfer the Domain Name (as the case may
be):- |
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| 7.1 |
in the circumstances contemplated in clause 3; |
| 7.2 |
should ZACR receive an order by any competent court having
jurisdiction; |
| 7.3 |
should Applicant breach any other provision of this Agreement, and
fail to remedy such breach within 14 (fourteen) days of receiving
written notice from ZACR calling upon it to do so; |
| 7.4 |
should ZACR receive a decision by a Dispute Resolution
Provider appointed in terms of an official domain name Dispute
Resolution Procedure introduced by law, or adopted and published
by ZACR. |
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8. |
Applicant acknowledges that all information provided to ZACR in
the Application may be disseminated and/or published by ZACR in
a manner generally accepted in the domain name industry, including
but not limited to publication of such information on ZACR's
Administration Sites, and Applicant hereby irrevocably and without
limitation consents to the dissemination and/or publication of such
information. |
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9. |
Under no circumstances whatsoever shall ZACR be obliged to:- |
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| 9.1 |
act as an arbiter of disputes arising out of the registration and
use of the Domain Name; |
| 9.2 |
refund any fees paid by the Applicant in terms of clause 3. |
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10. |
Should ZACR be presented with evidence that indicates that
the Domain Name violates the rights of a third party, ZACR
shall be entitled to provide the complainant with Applicant's
name and contact particulars and all further communication will
exclude ZACR and ZACR will have no further obligations to
the Applicant or complainant. |
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11. |
ZACR WILL UNDER NO CIRCUMSTANCES WHATSOEVER AND HOWSOEVER
ARISING BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT
LIMITATION, LOSS OF USE, BUSINESS INTERRUPTION OR LOST PROFITS),
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, DELICT, OR
OTHERWISE, EVEN IF ZACR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. WITHOUT DEROGATING FROM THE AFOREGOING, ZACR's
LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT SHALL
UNDER NO CIRCUMSTANCES EXCEED THE REGISTRATION OR AMENDMENT FEE,
AS THE CASE MAY BE, PAYABLE BY APPLICANT. |
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12. |
The Applicant hereby consents to the jurisdiction of the High
Court of South Africa sitting at Pretoria for the adjudication of
any legal dispute between ZACR and Applicant and the Agreement
will be construed and interpreted in accordance with the law of
the Republic of South Africa. |
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13. |
The Agreement may only be varied or cancelled with the express
written consent of ZACR. |
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14. |
Without derogating from the aforegoing, Applicant hereby
acknowledges that ZACR may alter, delete or supplement
("amend") the Agreement, or parts of the Agreement, by publishing
such amendments on ZACR's Administration Sites from time to
time. Applicant accepts that it is incumbent on it to monitor such
changes and it hereby agrees that should it fail to notify
ZACR of Applicant's wish not to be bound by such amendments
within 30 (thirty) days of such amendment being published, it
shall conclusively be deemed to have acceded and agreed to the
amendments thus published. |
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15. |
In the event that any of these terms are found to be invalid,
unlawful or unenforceable, such terms will be severable from the
remaining terms, which will continue to be valid and enforceable. |