Terms and Conditions / Registration Agreement (March 2015)
YOU ACKNOWLEDGE THAT MONIKER IS A REGISTRAR ACCREDITED BY THE INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (“ICANN”) AND IS BOUND BY AN AGREEMENT WITH ICANN AND THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF ICANN’S UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY LOCATED HERE, AS AMENDED FROM TIME TO TIME, WHICH IS HEREBY INCORPORATED AND MADE A PART OF THIS AGREEMENT BY REFERENCE FOR ALL TLD DOMAIN NAME REGISTRATIONS OR RENEWALS.
1. Contractual basis
1. All services of the company Moniker Online Services, LLC (hereinafter “Moniker”) are provided on the basis of these terms and conditions, the information provided on the website of Moniker and other terms and conditions referred to in these conditions.
2. Customers’ terms and conditions, as well as individual agreements, are only valid if Moniker has provided their consent in written form.
4. The customer is obliged to review and save these terms and conditions, as well as the respective appendices which are relevant to the customer. Moniker will keep a current version of these terms and conditions available on their websites.
5. The customer undertakes to maintain complete and accurate contact information in his or her user account at all times. Moniker is authorized to verify the information or to request evidence and to terminate the account upon detection of incorrect or incomplete data and maintains the right to rely on customer provided information for delivery of required communications.
6. The customer agrees to Moniker sending notifications by email. The email address entered in the customer account must therefore be kept current and checked at regular intervals. Moniker is not responsible for customers not taking notice of messages sent to the email address provided by the customer.
7. By initiating an order through Moniker and/or by executing electronic actions the customer declares that he has the proper authority to place orders either for himself or as the properly authorized representative of his organization and that he or she agrees to the terms and conditions, contractual terms and registration agreements in all parts.
8. In case of orders for or in the name of third parties, the customer remains the only contract partner of Moniker. Our terms and conditions, contract terms and general registration rules shall also apply to the third party; the customer is obliged to bind the third party to abide by the required code of conduct and duties and pass on these terms to the third party.
1. The Moniker webpages constitute an invitation for a customer to enter into a contract. The content of the webpages is subject to change without notice. A contract can be concluded by either written or electronic confirmation by Moniker or by fulfillment of an order. Mere use of the website or confirmations of receipt of an order shall not result in an agreement with Moniker.
2. In case the order is only partially deliverable, then the customer will also accept partial delivery.
3. The object of the agreement and scope and description of services shall be defined by the specific agreements.
4. The customer is obliged to check the order confirmation from Moniker and must contact Moniker immediately in case of errors or mistakes.
5. The customer agrees that Moniker may immediately begin with the performance of the order or service. When ordering domain services, the customer explicitly agrees that the order may be executed immediately and such execution shall make any payments non-refundable.
3. Domain and hosting services
1. The various top-level domains are administered by various different, national or private organizations ("registries"). Both ICANN and each of these organizations have their own terms and conditions relating to the registration and use of the domain names, as well as the proceedings in domain name dispute matters. Through this document Registrar is complying with the requirement of passing on these terms and conditions and dispute policies to its customers. By initiating an order for a domain registration or domain transfer, Customer declares to be aware of the existing and current registration conditions of ICANN and the relevant competent organization and accepts them as an essential part of this agreement.
2. Customer further acknowledges that registry policies of the relevant registries or ICANN policies may change from time to time and that he will keep himself informed about the current rules and either accept those changes or delete the corresponding domain name. Registrar will provide information on essential changes in its newsletters and will provide a link to the most current policies on its website.
3. Customer acknowledges that the registration of a domain name may be cancelled at any time due to violation of registry or registrar policies. He agrees in particular to any cancellation, deletion or a transfer of the domain name in accordance with a condition or registration policy of the responsible registry or according to a measure of Registrar or the registry which does not violate ICANN policies, provided that it is carried out by the Registrar or the registry operator (1) to correct errors during the registration, (2) to remove disputes which concern the registered domain names or (3) on account of a violation of the registration policies.
4. In the event that Registrar cannot maintain the registration of a domain name of Customer, in accordance with the policies of the registry, Registrar shall be entitled to an extraordinary termination of the registration agreement with Customer at Registrar’s sole discretion.
5. Registrar shall be considered designated agent of the registered name holder solely for all matters relating to the management and registration of a domain name with regard to all policies of ICANN, registry or other parties involved in the registration process. Registrant indemnifies Registrar for any costs associated with registrar being said designated agent.
B. Registration and transfers of domain names
1. By requesting a registration and / or transfer a domain name by / to Registrar, Customer authorizes Registrar to carry out on his behalf all entries and changes, which he carries out online by Registrar (e.g., DNS Updates, WHOIS-Updates, other domain configuration) directly in real time with the respective registry. Registrar is entitled to cancel unwarranted operations.
2. Customer undertakes to guarantee that the applied-for domain name and the intended use of the domain name do not impair the rights of third parties, further that there are no other legal or factual obstacles in conflict with the registration, further that the chosen name is not contrary to morality, that the registration request occurs in knowledge and consideration of the guidelines and policies of the relevant registry and that he is authorized to request this operation. Registrar is not obliged to verify this authority. Registrar may reject any application to register or transfer a domain name without reason and at its sole discretion.
3. Customer acknowledges that the domain name registration is usually done on a "first-come, first-served" principle. Registrar shall give no guarantee for a successful allocation of ordered domains and becomes free from the duty to perform the service in case of impossibility of the order.
4. An initial application for the provision of domain names and transfer of domain names from another registrar, the term of the registration can be from one to ten years depending on the domain name.
5. By applying for a domain transfer from another provider to Registrar, Customer confirms that he is authorized to dispose of the domain name. After the transfer the domain owner is obliged to review the accuracy of the data entered in the Whois of the domain name and to correct them if necessary.
6. By requesting a transfer of a domain name to or from a third party ("change of ownership"), Customer confirms that the third party has expressly agreed the change of ownership and the terms of this agreement. Otherwise Registrar is entitled to cancel the change of ownership. A change of ownership shall trigger a 60-day transfer lock in accordance with ICANN policy. Moniker, in its sole discrection, may offer an opt-out to the previous owner at the time the change of ownership is requested, but is not obliged to do so.
7. Concerning registration of multilingual domain names or under newly introduced top-level domains Registrar does not have any control of these registrations and it might be possible that the service will be modified, interrupted or even terminated by the registry without prior notice. Registrar has no obligation to guarantee the continuity of the existence or availability of domain names and registration is performed at the own risk of Customer. Customer acknowledges that the functionality of domain names may not be the same as in regular domain names. Furthermore Customer also acknowledges that a domain name may potentially not function fully due to the introduction of necessary new technical features.
8. Customer expressly agrees to the immediate execution of the service by Registrar. This especially applies to the registration, transfer and renewal of a domain name. The right to withdraw from the agreement after execution is therefore excluded after the completion of the order.
C. Domain owner data
1. The customer is committed to supply Registrar with the following information and data for the purpose of forwarding to the registry and possibly for the purpose of publishing in the public WHOIS of registered domain names. By entering and changing the data in the online-interface Customer assures that his information is correct, complete and truthful. This concerns in particular:
Current and complete information about the full name or name of a legal person, mailing address, e-mail address, voice telephone number and - if available – fax;
The IP address of the domain name server (primary and secondary server) and the name of these servers;
the full name, postal address, e-mail address, voice telephone and fax number of the administrative contact, the technical contact and the billing contact.
2. The necessary information and data may vary depending on the TLD. As far as more data is required, this data must be provided during the registration process or alternatively delivered upon request from Registrar.
3. The information and data has to be updated when necessary, incomplete data must be completed. Customer acknowledges that the provision of false data can directly lead to loss of rights from the service without refund. This also applies in the event that Customer does not comply with any request of Registrar to correct the data or provide proof of its accuracy within the time allowed.
4. By providing data of a third party, Customer confirms that he has informed the third party about the provision and use of the data and that the third party has expressly agreed with this provision and use.
D. Renewals of Registration
1. Renewals of registration are possible for 1 to 10 years depending on the domain name.
2. Registration and administration of a domain name shall be set by default to renew automatically for another twelve (12) month term at the end of the registration period. The customer has the option and must remove from autorenew should they not wish to autorenew. Express renewal may occur at any time.
3. For renewals the price list at the time of renewal is applicable.
4. Customer may be informed by e-mail of his obligation to pay for the renewal in accordance with the provisions of ICANN or the respective registry before the end of the registration period. It is however Customer’s obligation to renew his domain name(s) and to ensure sufficient funds / payment methods are available at least ten (10) business days prior to renewal on most domains and three (3) months on those domains which require earlier renewal prior to expiration based on the appropriate tld rules. If Customer does not terminate the contract on time and Customer has either identified his payment method to be credit card or bank debit and entered current and valid payment details, then Registrar will automatically charge the due amount up to 10 days prior to the expiration date, or in the case where a tld requires it, up to three (3) months prior to renewal and the contract will be renewed accordingly. Customer is solely responsible for ensuring the timely receipt of the fees applicable or for the functioning of the chosen payment.
E. Termination of the management
1. If the fee for a renewal of a registered domain name is not received three (3) days before the expiry of the contract period, Customer loses his rights to the domain name. The same applies in the event of a chargeback of a payment for a domain name or a functionality failure of the selected payment method.
2. In the case of domain names cancelled by the customer, of domain names not extended at the time of expiry despite a reminder of the pending expiration, or non-payment of renewal fees, Registrar is authorized to deactivate this domain name at its own discretion or to change the DNS entries ("deactivation"), to return it to the Registry for the purpose of deletion or continued management at the registry ("deletion") or to dispose, to auction, to transfer to third parties, to take over in its own continuance ("utilization" or “utilized”
- this means to use the domain for its own purpose as it sees fit). Registrar will begin to undertake such actions no earlier than five (5) days after the expiration of domain names with a Renewal Grace Period, or upon expiration of domain names without such a period. Customer agrees that the termination or non-renewal of the domain name or non-payment of due renewal fees shall constitute his consent to the actions described above as well as a renewal of the domain name to the extent necessary for their undertaking provided that Customer does not contradict expressly before the term end and no contrary agreement exists.
3. The customer agrees that no legal claim against registrar, it’s employees, officers, parents, subsidiaries, owners or assigns exists to any domain name or resulting assets or income from said domain utilized by registrar after deactivation.
4. Regardless of the regulations here and in the general terms and conditions both sides can terminate the agreement for an important reason.
a) An important reason for Registrar is given in particular when Customer
has not submitted invoiced fees within terms
culpably violates duties of this or related contracts, against the Registry Policy or these terms and conditions, particularly by provision of false registration data;
violates laws, rules or good morals (as decided by Moniker in its sole discretion) as pertaining to the content offered on the domain or the domain name itself, or
acts contrary to the terms and conditions of the Registration and the registration policies.
b) Another important reason exists, if
the accreditation of Registrar ends for a top level domain under which the domain name is registered and the Registrar cannot guarantee to continue the registration under such conditions.
c) In all of these cases Customer loses all rights.
5. Customer is entitled to transfer the domain name to another provider; however, Registrar may refuse such a transfer, subject to the conditions set by the registry, registrar or ICANN reasons for refusals of transfers. A transfer within 60 days of registration or a prior transfer is prohibited. A transfer while money is owed on a domain name is prohibited. If customer has a portfolio of names with Moniker and Moniker has renewed domains at Moniker’s cost on the basis of promises by customer, bounced checks to Moniker, or credit card claw backs, then no domains in the portfolio may transfer until all back monies owed have been paid. You agree the Moniker has a lean against all domain names in the portfolio at the renewal cost of each domain.
F. Recovery and reactivation of domain names
1. If and as far as a registration authority permits the recovery ("Restore") of previously deleted domain names or domain names returned to the registry in certain TLDs and provided Registrar offers that service in the respective TLD, this service will be provided at the request of the registered domain holder without obligation and with no guarantee of a successful recovery. The prices can be found on Moniker’s price list [PRICE LIST URL~]. A Restore can only be performed when the account has a sufficient balance for the operation. A restore job can also only be processed if it arrives during business hours and with sufficient time prior to the final deletion by the registry. Should a restore action fail to be executed, the appropriate fees shall be refunded to Customer's account.
2. As far as Registrar, in its sole discretion, offers the reactivation of a deactivated domain name before utilization and or payment, Customer agrees to pay the reactivation fees plus the cost of renewal for such orders.
G. Domain dispute policy
1. Customer agrees to resolve and settle any domain name dispute according to the Dispute Resolution Policies of the respective registry or ICANN, if applicable. These policies can be reviewed on the website of Registrar or on the website of the respective registry, or ICANN. Customer will inform himself about the applicable Dispute Resolution Policy before initiating a registration request. The language of the arbitration rules may be different from the language of the agreement and can be written in the local language of the registry.
2. Customer accepts that Registrar as an accredited registrar may be bound to lock or cancel a domain or to transfer it to a third party in accordance with any decision of an Administrative Panel in accordance with the applicable dispute resolution policy unless Customer provides evidence within ten (10) days after an Administrative Panel`s decision, that he has commenced a lawsuit against the complainant regarding the right to use the disputed domain name in a Mutual Jurisdiction as defined under the UDRP rules.
3. For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) the legal domicile of Registrar.
4. During a pending administrative proceeding or during a period of fifteen (15) days after such proceeding is concluded or during a pending court proceeding or arbitration commenced regarding the domain name Customer may not transfer the domain name registration to a third party unless the third party agrees, in writing, to be bound by the decision of the court or arbitrator.
4. Duration of contract and termination
1. The term of a service follows the accounting periods laid down in the specific agreements. Unless otherwise agreed or if the service description indicates otherwise, a standard term of 12 months applies to all services.
2. Agreements with a minimum term of twelve (12) months are automatically renewed for another twelve (12) months if they are not terminated with a notice period of three (3) months to the expiry date, unless agreed otherwise.
3. Agreements with a term of less than 12 months shall be automatically renewed by their respective minimum term, unless they are not terminated with a notice period of one (1) month before the date of expiry, unless tld rules require earlier renewal or as agreed otherwise.
4. Services that are currently provided free of charge may be suspended or made chargeable at any time, upon prior announcement by Moniker. Moniker grants the right of special termination to the customer if Moniker is notified within ten (10) days subject to earlier renewal as required by tld as noted elsewhere in this agreement..
5. Both sides may cancel the contract for the following reasons. When the customer:
has failed to pay as agreed for five (5) days;
violates any element of these terms and conditions or associated contract;
uses the services provided by Moniker to violate any rights of a third party;
does not modify the use of the service within appropriate period in such a way that they meet the requirements regulated in the terms and conditions despite having received a warning; or
culpably or negligently acts contrary to the terms and conditions of the agreement or the registration policies of the registries or other registrars (if applicable)
violates the law.
In all of the above cases the customer agrees that it shall lose all rights to the service(s), domains and any payments to include pre-payments made thereof.
6. As a courtesy, the customer may be informed by e-mail about the obligation to pay the renewal fees prior to the end of the registration period, but it is customers obligation to log in and renew any domains and Moniker shall have no liability arising from domain which are not renewed based on customer’s failure to request renewal. In the case of non-payment prior to the expiration date the customer will lose all rights to the performance of the service on the expiration date
7. If the customer did not terminate the contract on time and the customer has either identified his payment method to be credit card or bank debit and provided current and valid payment details, then the due amount will automatically be charged ten (10) days prior to the expiration of the agreement and the agreement will be renewed accordingly. The same applies if the customer has sufficient funds or credit in his account.
8. In the event of premature termination of a service, no prorated refund of the consideration is paid for the remaining period, unless the termination is intentionally caused by Moniker without legal basis, in which case Moniker’s complete liability shall be limited to the gross amount paid by the customer to Moniker over the relevant period, minus all of Moniker’s costs and expenses associated with the services, which customer acknowledges shall be considered reasonable liquidated damages. This also applies to other services or additionally booked options as well as termination for cause and termination due to binding decisions in domain name disputes.
9. If an account reaches a point where there are no names, no activity and no money in the account for a period of three months, as a security measure Moniker may freeze the account to close it. If an account reaches a point where there are no names, no activity but there is money in the account, an inactivity charge equal to the basis price of a .com will be charged annually until there is no remaining balance after which the account will be frozen.
1. Pricing for all services is published on the webpage. This includes services offered directly by Moniker for a fee or otherwise and those offered by third parties through Moniker. Moniker may change this pricing at any time. Use and payment of a service means you accept the pricing and all associated contracts with Moniker. Prices are only valid for the actual price on the day of the transactions.
1. Payment can be made by bank debit order from a bank which works with Moniker’s bank, by credit card (VISA, Mastercard, AMEX) by wire transfer, by Paypal payments or by sending a check. Moniker may charge the cost for using the payment service in order to ensure that Moniker receives the required fee. Moniker reserves the right to restrict payment methods available on a case by case basis.
2. If you pay for any Services by debit card, you hereby authorize, but do not obligate, Moniker to automatically charge your debit card and renew the applicable Services on or before their renewal date using the debit card information you have provided to us, unless you expressly opt out of any automatic renewal process in accordance with the instructions on our website and e-mail forms.
3. You are solely responsible for the debit card information you provide to Moniker and must promptly inform Moniker of any changes thereto including, but not limited to, changes of expiration date or account number, security code, or billing address. Pass through fees from the Merchant Services for credit card failure may be charged against your account. Any payments made through the use of a debit card are non-refundable under all circumstances unless you notify us of any issues within thirty (30) days of the charge.
4. You are responsible for confirming that a charge you have authorized us to make has gone through. This is inclusive of, but not limited to charges you authorize to your credit card, debit card, PayPal, or through other electronic payment means. You are responsible for verification through your online panel at Moniker or by calling or emailing Moniker and obtaining written verification that the charge has gone through and your service, including, but not limited to, renewal of your domain name(s) has completed. Generally, if you send us a notification about domains in your account and do not include an account number it shall be as if you did not send the email.
5. Usage-based fees will become due immediately upon invoice unless another due date is agreed upon in writing. Other charges must be paid in advance by the customer.
6. Execution of the task by Moniker will only start after a successful payment has been received by Moniker and is acknowledged in the customer’s Moniker account. All transaction costs must be covered by the customer. The customer has no right to fulfillment until payment is received in full even if a customer’s domain name may be dropped, sold or transferred to a third or related party.
7. If the customer fails to submit payment until the due date the customer shall be in default. In other respects, the statutory regulations for default shall apply.
8. Customer agrees that he will lose all rights to a service in case that payment is not submitted or not submitted in full or in the case of a charge back by their bank or credit card company credit card fraud or any other reversed payment.
9. If a credit card is used by the customer and the credit card company indicates that the card is being used fraudulently then Moniker will move the domain name(s) which the customer attempted to renew with the fraudulent card until the customer clears up the issue with the credit card company. Notification from the credit card company of no fraud will be required to release the domain name(s). Moniker shall not be liable if the domain name(s) expire while being held for fraud. All elements pertaining to expired domain names as stated herein shall apply to any domain(s) even if expiration is while said domain name(s) are in Moniker’s fraud holding account at the time of expiration.
10. Invoices are published in the account of the customer as well as sent by e-mail, unless another procedure is agreed upon. Should the customer wish to receive an invoice by regular mail then Moniker has the right to charge five dollars ($5) for each mail delivery.
11. The payments for services are also not refundable in case of disruptions in the service due to force majeure or other causes outside the realm of Moniker responsibilities.
12. Prepayments for services which could not be rendered will be credited to the customer account and can be refunded at any point in time or be automatically used for open orders for which no payment has occurred.
13. If a bank debit is denied by customer, or denied by the bank due to insufficient funds, or a chargeback be initiated for any reason, the customer is liable for any service fees, plus an additional processing fee (see “fee table”) per failed bank debit or chargeback. In addition, the customer irrevocably authorizes his bank to communicate to Moniker or their agents the name and address of the customer.
14. For each justified (amount actually being due) due payment reminder Moniker is entitled to demand to the costs incurred which currently amount to five dollars ($5), plus a handling fee of ten dollars ($10). Moniker is also entitled to cease all services after unsuccessful reminder without notice and to block the access of the customer to his account(s).
15. The customer can only offset his own claims against claims of Moniker if these claims have been accepted by Moniker in writing.
16. In case of default on payments, Moniker may charge an annual interest of 12% above WSJ Prime Rate.
17. Any payments made by a customer will first be applied to past due amounts in the order of oldest invoice moving forward. Once customer is current on all invoices it may then pick and choose which domains to renew or let drop.
1. As a condition of the customer’s access and use of the services of Moniker the customer agrees to defend, indemnify, save and hold harmless Moniker, agents, partners, ICANN, the respective central registry as well as all persons involved in rendering of the service in respect to all claims, demands, liabilities, costs and/or expenses resulting from an illegal use of the service, of the domain name registered by the customer or the content provided on a registered domain. In the event of a claim, customer has the right to prove to Moniker that claims in the context of the exemption have not occurred; in accordance with any claims and / or that the customer is not responsible.
2. Neither Moniker, its agents, partners, ICANN, the respective central registry nor any person involved in the rendering of the service will be liable to the customer or any third party for any direct or indirect loss of profits, earnings or business opportunities, damages, expense, or costs resulting directly or indirectly from any failure to perform any obligation or provide service hereunder because of any Force Majeure, or governmental acts or directives, strikes, riot or civil commotion, war, any natural disaster, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force or condition beyond Moniker’s reasonable control.
3. Moniker cannot be held liable for delays of services and server downtimes due to force majeure, fault of third parties or due to events which Moniker has no influence on, despite any agreed upon deadlines and dates. Moniker is authorized to postpone the provision of services and/or delivery by the duration of the respective disruption plus an appropriate starting time. Furthermore Moniker can limit access to the service if the stability and security of the operation, the maintenance of the net integrity, in particular the avoidance of serious disturbances of the network, the software or stored data require such action. Moniker is not obligated to review or monitor the use of the service by the customer to ensure their legality.
4. For all services of Moniker´s liability will be limited to intentional acts. Moniker shall not be responsible in any other circumstances you agree that our entire liability, and your exclusive remedy in law, in equity, or otherwise with respect to any Services provided under this Agreement and/or for any breach by Moniker, or by its employees, of this Agreement is limited solely to the amount you paid for such Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY MONIKER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ATTORNEY’S FEES AND COSTS ) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY OF THE SERVICES, EVEN IF MONIKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF THE DAMAGES ARE DUE TO OUR NEGLIGENCE, GROSS NEGLIGENCE EVEN AFTER WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OF HARM. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU BASED ON THE LAWS IN YOUR STATE. IF THE ABOVE LIMITATION DOES NOT APPLY TO YOU THEN YOU ACCEPT THAT PAYMENT TO YOU OF THE AMOUNT YOU PAID FOR ANY SERVICES, WITHIN ONE YEAR OF THE DATE WHEN YOU NOTIFY MONIKER OF YOUR ALLEGED CLAIM, MINUS ALL OF MONIKER’S COSTS, SHALL BE, AS COMBINED DIRECT AND INDIRECT LIQUIDATED DAMAGES, IS A JUST AND REASONABLE AMOUNT.
Disclaimer of Warranties
MONIKER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND 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. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTY THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES 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 SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR .COM MAIL SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR .COM MAIL 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 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 .COM MAIL SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL MONIKER, ITS AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE MONIKER.COM SITE, THE SERVICES OFFERED ON THE MONIKER.COM SITE, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING GROSS NEGLIGENCE).
5. Customer shall compensate Registrar for any damages resulting from violations of the registration agreement, registration policies, and/or the terms and conditions and shall indemnify Registrar against all third-party claims based on the use of the services. This also includes the reimbursement of all reasonable costs of a legal defense if the registrar was threatened with legal proceedings due to the registration.
This includes in particular the use of a domain name by infringing a prohibition in law, the good morals as well as rights of third parties (trademark rights, name rights, copy rights, data protection rights, etc.) or the active support of such violations, making available of content that of glorifies violence, inciting, racist or radical right-wing content, the instructions for criminal acts and content that are appropriate to degrade a third party or group of third parties in their human dignity (hate pages), the unauthorized intrusion into third party computers or computer systems, the distribution of malicious software, the forgery, the mailing of unrequested or undesirable e-mails for advertising purposes to third parties (Spamming). Customer is obliged to comply with all legal requirements and policies with the provision of pornographic and/or erotic content.
(a)When you use any of our Services through our e-mail or web-based or wholesale application process, you are solely responsible for protecting your account and your domain name registration records (including your contact records and host records) from unauthorized changes by setting, and continuously managing, your password and security settings. You are solely responsible for maintaining the confidentiality and secrecy of your password and account security settings, as well as your credit card and other information. All consequences resulting from a voluntary disclosure by you of your password or account information, as well as from any activities that occur in your account are your responsibility.
(b) The customer agrees to keep all passwords and access data received from Moniker for access to our services secret and to inform Moniker once he receives any information about unauthorized parties gaining access to these passwords. The customer acknowledges that he is responsible for any orders or statements issued with his user-identification and that he bears the risk of unauthorized use of his access data. Should unauthorized third parties use Moniker services while using his account, the customer is responsible for all fees and damages. Moniker may lock access to an account if there is sufficient reason to assume it is used by unauthorized parties. Moniker will inform the customer as soon as is reasonably possible, given the particular circumstances, of any such measure taken.
(c) You agree to notify us immediately of any unauthorized use of your account or any other breach of security. You agree that you are responsible for all activity arising from your account, whether initiated by you, by others on your behalf, or by unauthorized third parties. Moniker shall be entitled to rely on any requests initiated from your account, whether initiated or authorized by you or not, and shall not be liable for any such activity. Funds in your account can only be used to purchase Services from Moniker and, except to cover unpaid or delinquent fees as set forth in Section 3 above, will not be credited for other purposes.
7. In case of allowed use by third parties or resale of products and services of Moniker to third parties, the customer is liable for any claims resulting from violations of the contract terms by the third party and shall indemnify Moniker in full from all claims resulting from the use of the service by the third parties.
8. A registered domain name can be temporarily blocked or disabled if the customer offends applicable law or this arrangement in serious manner through the content made available under the domain name or if such an offence was made plausible and Customer does not react to the request to remove or adapt the content accordingly.
9. As far as a single domain name is canceled or transferred by Customer, due to violation of the registration agreement, due to binding decisions in domain name disputes or due to other causes specified in these conditions, no right to request for a free replacement domain or other reimbursement exists, provided that the termination was not caused illegally by Registrar in a culpable or grossly negligent manner. This also applies to other services or additionally booked options regarding the affected domain names.
8. Data and protection of data
The storage, processing and use of personal data of the customer is necessary in order to be able to provide the services listed herein. Additional information on this is provided in the data protection guidelines of Moniker which are deemed to be part of these terms and conditions.
9. Digital Millennium Copyright Act (DMCA) Notices
Moniker facilitates registrar services as well as the hosting, sale and purchase of Domain Names. Moniker also provides various Services in relation to such transactions. Moniker is NOT responsible for and has NO control over the use of any Domain Name listed for sale. Any content placed on a webpage accessed through or via a Domain Name is the responsibility of the owner and/or any third party service provider (including parking and other monetization services). Moniker only provides hosting services through third party affiliates and you most likely will be required to contact such third parties as pertaining to any third party content. As such, the Digital Millennium Copyright Act (DMCA) may not apply to our Services. However, we reserve the right to claim benefits of the DMCA provide you with the following information regarding claims of infringement and our policy for handling any claims we may receive.
DIGITAL MILLENNIUM COPYRIGHT ACT
It is our policy to respond to clear notices of alleged copyright infringement. This page describes the information that should be present in these notices. It is intended to make submitting notices of alleged infringement to us as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the DMCA (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov) but we will respond to notices of this form from other jurisdictions as well.
Regardless of whether we may be liable for such infringement under local country law or United States law, our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification. We may also document notices of alleged infringement on which we act. Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice may be sent to a third-party which may publish and/or annotate it.
To file a notice of infringement with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, we suggest that you first contact an attorney.
To expedite our ability to process your request, please use the following format (including section numbers):
1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (for example, "The copyrighted work at issue is the text that appears on http://www.domainname.com/page.html") or other information sufficient to clearly specify the copyrighted work being infringed (for example, "The copyrighted work at issue is the “Title of Link” by ABC, published by XYZ, ISBN #987654321").
2. Identify the material that you claim is infringing the copyrighted work listed #1.
3. Provide information clearly sufficient to permit us to contact you (email preferred).
4. Provide information sufficient to permit us to notify the owner of the allegedly infringing content (email address is preferred).
5. Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
6. Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
7. Sign the document.
8. Send the written notice to the following address: 13727 SW 152nd Street #513
Miami, FL 33177 as well as via email to:
Legal matters: [email protected]
The administrator or the provider of affected content may make a counter notification pursuant to §§512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, we suggest that you first contact an attorney. To expedite our ability to process your counter notification, please use the following format (including section numbers):
1. Identify the material that we have removed or to which we have disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Luxembourg, and that you will accept service of process from the person (or their agent) who provided notification under subsection (c)(1)(C).
3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."
4. Sign the document.
5. Send the written notice to the following address: Moniker Online Services, LLC, 1994 East Sunrise Boulevard #223 Fort Lauderdale, FL 33304 and via email to:
Legal matters: [email protected]
For any additional questions regarding the DMCA process for Moniker products and services please contact us using the “Contact us” information on the Site or email us at [email protected]
We will, in appropriate circumstances, terminate repeat infringers. If you believe that a user of our Site is a repeat infringer, please follow the instructions above to contact us and provide information sufficient for us to verify that the user is a repeat infringer.
10. Privacy services
A. Communications Forwarding. By subscribing to the Privacy Service, you authorize and direct Moniker Privacy Services, LLC to process communications directed to you at the contact information displayed in the public WHOIS database as follows:
B. E-Mail Address. Messages received at the e-mail address posted in the public WHOIS database will be forwarded to the e-mail address associated with your account for the applicable domain name
C. Postal Address. You hereby authorize Moniker Privacy Services, LLC to receive, sort, open, forward, and destroy any and all mail sent to the address posted in the public WHOIS database in its sole discretion. Mail received via postal mail, certified mail or courier will be opened and all such mail that can be scanned will be scanned and sent to you via the e-mail address associated with the account for the applicable domain name. You acknowledge that you will have five (5) business days from the date that such scan is e-mailed to you to request in writing that a copy of such scanned mail be forwarded to you via postal mail at your expense. You acknowledge that unless you direct us otherwise in writing within such five (5) day period, all such mail will be destroyed. You specifically acknowledge that Moniker Privacy Services, LLC may in its sole discretion destroy all third class and “junk” mail upon receipt and will either discard all such other communications received or return the same to the sender unopened.
D. Phone/Fax. The telephone and fax numbers posted in the public WHOIS database of the applicable domain name are answered and monitored by Moniker Privacy Services, LLC. Third parties attempting to contact you using either of these means are informed that the domain name owner does not wish to receive communication in this manner and prefers e-mail. No messages or faxes will be forwarded to you.
E. You acknowledge and agree that in responding to communications received by Moniker Privacy Services, LLC that constitute complaints with respect to any domain name registration which utilizes the Privacy Services, Moniker may communicate with the complainant and inform them that Moniker is not the true registrant of the domain name in question, that Moniker will forward a copy of the complaint or other communication to you and that if you do not respond within a certain period of time, your lack of response may constitute grounds for cancellation of the Privacy Service with respect to such domain name registration. Moniker may then, in its sole discretion, attach your default WHOIS information to the applicable domain name and display it on the public WHOIS database.
F. You acknowledge and agree that Moniker may decline to offer the Privacy Service on certain TLDs in order to comply with regulations specific to that TLD. You further agree that Moniker may terminate an existing Privacy Service subscription if it, in its sole discretion, determines that termination is necessary in order to comply with regulations specific to a TLD.
G. You hereby waive any and all claims arising from your failure to receive any type of communications — whether by e-mail or postal mail — directed to the domain name contact information posted in the public WHOIS database, but not forwarded to you by Moniker Privacy Services, LLC. You hereby acknowledge that it is your sole obligation to respond to any and all legal inquiries or challenges made with respect to any of your domain names that utilize the Privacy Services. You hereby agree that neither Moniker nor Moniker Privacy Services, LLC is responsible for, and that we and it specifically disclaim any loss or liability resulting from, any claim arising out of, or related to, a domain name that utilizes the Privacy Service by or before any judicial, administrative, or governmental body.
H. Disclosure of Contact Data; Right to Terminate the Privacy Service. You acknowledge and agree that Moniker Privacy Services, LLC has the absolute right, as it deems necessary in its sole discretion, to reveal to third parties, including to any UDRP or URS provider, the Contact Data provided by you to Moniker Privacy Services, LLC in connection with the applicable domain name and to suspend, cancel or terminate the Privacy Service if we reasonably perceive that:
i. The domain name violates or infringes a third party’s trademark, trade name, or other legal rights or that you are utilizing the domain name to engage in activities prohibited by this Agreement;
ii. The action is necessary to comply with any applicable laws, government rules or requirements, ICANN policies or requirements, including UDRP and URS providers, subpoenas, court orders, requests of law enforcement or government agencies; or
iii. Any third party threatens legal action against Moniker Privacy Services, LLC, Moniker, or any of their affiliates that is related in any way to the domain name, or who claims that you are using the domain name registration in a manner that violates any law, rule or regulation, including the terms of this Agreement, or is otherwise infringing a third party’s legal rights.
You acknowledge and agree that Moniker Privacy Services, LLC may reveal the Contact Data as provided above without prior notice to you or to Moniker, and that it will not be liable for any damages or loss that may result from such disclosure.
J. All funds for Privacy renewals are automatically collected on the auto renewal payment date of the subject domain name. There will be no proration of funds for partial years. Privacy will be removed from the domain name on the 5th day after expiry.
You agree that all of the following may be considered by us a material breach of your obligations under this Agreement:
Your failure to abide by any provision of this Agreement and any Moniker operating rule or policy including, without limitation, the Domain Name Renewal, Deletion, Recovery Information, and Fees Policy, where applicable, and the Dispute Policy;
Your failure to pay any amounts due pursuant to this Agreement or any other written or online agreement with us for the Services;
Your willful provision of inaccurate or unreliable Contact Data as part of the application process;
Your failure to update your Contact Data so that it is current, complete and accurate; and
Your failure to respond for more than fifteen (15) calendar days to inquiries from us concerning the accuracy of the Contact Data associated with your domain name registration.
As expressly provided in other Sections of this Agreement.
12. Miscellaneous clauses
1. Modifications or changes of terms or conditions or the contract, as well as cancellations, will only be accepted in writing; oral agreements shall not be considered valid. This also applies to terms and conditions of customers unless MONIKER expressly agrees to accept such terms in writing.
2. Except as otherwise required by the UDRP or any similar ccTLD policy, or by the URS or any similar gTLD policy, regarding a dispute over a domain name registration, and unless otherwise expressly provided in this Agreement, this Agreement and the Services hereunder shall be governed by the laws of the United States and the State of Florida, 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 Miami, Florida and you expressly and irrevocably consent to the exclusive jurisdiction and venue of such courts. You hereby waive to any objections that you may have as to venue, including forum non-conveniens. You further irrevocably consent to service of process by personal service within or without the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.
3. Notwithstanding the foregoing, for disputes or litigation between you and another party that is not Moniker or the Moniker Parties concerning or arising from your use of domain names registered hereunder, you acknowledge and agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (a) of the domain name holder’s domicile, and (b) where our principal executive office is located, currently Fort Lauderdale , Florida and you understand that in such a case Moniker shall upon request of the bereaved party assign privity of contract to such a party. You agree that any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action will be permanently barred.
4. If any provision of these terms and conditions shall be or become unenforceable and/or invalid, such unenforceability and/or invalidity shall not render these terms and conditions unenforceable or invalid as a whole. Any provision determined to be unenforceable or invalid shall be replaced by provisions which are valid and enforceable and closest to the original objectives and intents of the original provisions in an economic and legal sense that would have been agreed upon by the parties, had they known of the invalidity at the time of the agreement.