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This Customer .BIZ Product Agreement (hereinafter
referred to as the "Agreement")
is made, entered
into and executed
BETWEEN: -
DIRECT INFORMATION PRIVATE LIMITED –
a Company Registered and Incorporated
under
the provisions of the Companies Act, 1956
having its Registered Office at 102 Osia
Friendship 4th
Gaothan Lane Off: J. P. Road Opp. Ram
Mandir Andheri (West) Mumbai 400 053 Maharashtra
India
(hereinafter referred to as “Directi”)
AND
The Customer (hereinafter referred to
as the “Customer”) of the
Order as per the FAPI Database and
the Owner (hereinafter referred to as
“the Registrant”) of the SLD
(as defined below) as per the
Registry Operators Database.
The Customer and the Registrant may be
jointly referred to as the “Contractees”
This Agreement will become effective when
accepted by Directi. Directi may elect
to accept or reject
your Order application for any reason
at its sole discretion, such rejection
including, but not limited
to, rejection due to a request for a prohibited
Order.
(Direct Information Private Limited and
the Contractees may be referred to individually
as a "Party"
and collectively as the "Parties").
WHEREAS, the Internet Corporation for
Assigned Names and Numbers, a California
non-profit
corporation ("ICANN"), has been
empowered by the United States federal
government to oversee the
evolution of the Internet by instituting
principles of open competition;
WHEREAS, NeuLevel, Inc. (“Registry
Operator”), a Delaware corporation,
with its
principal place of business located at
Loundoun Tech Center, 45980 Center Oak
Plaza, Sterling, VA 20166, has entered
a Registry Agreement with the Internet
Corporation for Assigned Names and Numbers
to operate a shared registration
system, TLD nameservers, and other equipment
for the .biz top-level domain;
WHEREAS, Directi is authorized to provide
Internet domain name registration services
for secondlevel
domain names within the .biz top level
domain;
AND WHEREAS, the Customer intends to initiate
the registration (hereinafter referred
to as “the
Order”) of a second-level domain
name (“the SLD”) through Directi
on behalf of the Registrant for
the .biz top level domain;
NOW, THEREFORE, for and in consideration
of the mutual promises, benefits and covenants
contained herein and for other good and
valuable consideration, the receipt, adequacy
and
sufficiency of which are hereby acknowledged,
Directi and the Contractees, intending
to be legally
bound, hereby agree as follows:
1. DEFINITIONS
(1) “Account Manager” refers
to a FAPI User that the Customer delegates
management of
the Order to as per the current data in
the FAPI Database.
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(2) “Business Day” refers
to a working day between Mondays to Friday
excluding all
Public Holidays.
(3) “Communications” refers
to date, tim e, content, including content
in any link, of all oral
/ transmitted / written communications
/ correspondence between Directi, its
Resellers,
Contractees, Account Managers, FAPI Users
and any Artificial Juridical Person,
Company, Concern, Corporation, Enterprise,
Firm, Individual, Institute, Institution,
Organization, Person, Society, Trust or
any other Legal Entity acting on their
behalf.
(4) “Confidential Information”,
as used in this Agreement shall mean all
data, information
and materials including, without limitation,
computer software, data, information,
databases, protocols, reference implementation,
documentation, functional and interface
specifications, provided by Directi to
the Contractees under this Agreement,
whether
written, transmitted, oral, through the
Directi Website or otherwise.
(5) “Directi Customer” refers
to any Artificial Juridical Persons, Company,
Concern,
Corporation, Enterprise, Firm, Individual,
Institute, Institution, Organization,
Person,
Society, Trust or any other Legal Entity
bound by any Directi Customer Product
Agreement as published on the Directi
Website.
(6) “Directi Reseller” refers
to any Artificial Juridical Persons, Company,
Concern,
Corporation, Enterprise, Firm, Individual,
Institute, Institution, Organization,
Person,
Society, Trust or any other Legal Entity
bound by the Directi Reseller Master
Agreement as published on the Directi
Website.
(7) “Directi Products” refer
to all Products and Services of Directi
which it has
provided/rendered/sold, or is providing/rendering/selling.
(8) “Directi Servers” refer
to web servers, F API Servers, Mailing
List Servers, Database
Servers, and any other Machines / Servers
that Directi Operates, for the FAPI, the
Directi Website, the Directi Mailing Lists,
Directi Products and any other operations
required to fulfill services and operations
of Directi.
(9) “Directi Website” refers
to http://www.directi.com
(10) “DNS” means Internet
domain name system.
(11) “FAPI” refers to the
Directi Foundation API as implemented
in the current FAPI Server
(12) “FAPI Client” refers
to software / program / API / product
that conforms to the FAPI
and can initiate FAPI Transactions with
a FAPI Server.
(13) “FAPI Connection” refers
to a network connection established to
a FAPI Server with
the purpose of initiating FAPI Transactions.
(14) “FAPI Data” refers to
the data elements exchanged in a FAPI
Transaction as defined in
the FAPI.
(15) “FAPI Database” is the
collection of data elements stored on
the FAPI Server, of FAPI
Users, Orders and other related information
as defined in the FAPI.
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(16) “FAPI Serve r” refers
to the Servers maintained by Directi,
which expose the “FAPI”
and/or are required for the functioning
of the FAPI.
(17) “FAPI Transaction” refers
to the process of exchange of data during
a FAPI Connection
according to FAPI.
(18) “FAPI User” refers to
an y Artificial Juridical Person, Company,
Concern, Corporation,
Enterprise, Firm, Individual, Institute,
Institution, Organization, Person, Society,
Trust
or any other Legal Entity that has access
to “FAPI Server”.
(19) “JS Interface” refers
to the set of web ba sed interfaces including
Reseller Control Panel,
Customer Control Panel, Account Manager
Control Panel, Payment Gateway Interface
provided to the Reseller and his Customers
to allow them to use the FAPI.
(20) “Payment Gateway Services”
refers to the online Pay ment Gateway
Services offered by
Directi, whereby Directi collects funds
from a Customer on behalf of a Reseller
for
Orders placed by the Customer.
(21) “Service Providers” refers
individually and collectively to Directi
and/or any Artificial
Juridical Persons, Company, Concern, Corporation,
Enterprise, Firm, Individual,
Institute, Institution, Organization,
Person, Society, Trust or any other Legal
Entity that
Directi may Engage / Employ / Outsource
/ Contract with for the fulfillment /
provision
/ purchase of Directi Products including
but not limited to the .biz registry operator,
NeuLevel Inc. and ICANN.
(22) “Whois Directory” refers
to the public web based query interface
maintained by the
Registry Operator that allows querying
the Registrant, Admin, Technical and Billing
Contact Information for a registered .biz
SLD.
2. OBLIGATIONS OF THE CONTRACTEES
(1) The Contractees acknowledge that in
the event of any dispute and/or discrepancy
concerning any data element of an Order
or the Contractees in the FAPI Database,
the
data element in the FAPI Database records
shall prevail.
(2) The Contractees shall comply with
all other terms or conditions established
by Directi
and/or its Service Providers from time
to time.
(3) The Contractees agree to provide,
maintain and update, current, complete
and accurate
information for all the data elements
about the Contractees in the FAPI Database.
(4) During the term of this Agreement
and for three years thereafter, the Contractees
shall
maintain the following records relating
to its dealings with Directi, Directi
Resellers and
their Agents or Authorized Representatives:
-
(1) In electronic, paper or microfilm
form, all written communications with
respect to
the Order.
(2) In electronic form, records of the
accounts of the Order, including dates
and
amounts of all payments, discount, credits
and refunds.
The Contractees shall make these records
available for inspection by Directi upon
reasonable notice not exceeding 14 days.
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3. REPRESENTATIONS AND WARRANTIES
Customer, Directi and Registrant represent
and warrants that: -
(1) they have all requisite power and
authority to execute, deliver and perform
their
obligations under this Agreement;
(2) This Agreement has been duly and validly
executed and delivered and constitutes
a legal,
valid and binding obligation, enforceable
against the Reseller and Directi in accordance
with its terms;
(3) The execution, delivery, and performance
of this Agreement and the consummation
by
Directi and the Reseller of the transactions
contemplated hereby will not, with or
without
the giving of notice, the lapse of time,
or both, conflict with or violate: -
(1) any provision of law, rule, or regulation;
(2) any order, judgment, or decree;
(3) any provision of corporate by-laws
or other documents; or
(4) any agreement or other instrument.
(4) the execution, performance and delivery
of this Agreement has been duly authorized
by
the Reseller and Directi;
(5) No consent, approval, or authorization
of, or exemption by, or filing with, any
governmental authority or any third party
is required to be obtained or made in
connection with the execution, delivery,
and performance of this Agreement or the
taking
of any other action contemplated hereby;
Customer and Registrant represent and
warrant that
(1) they have read and understood every
clause of this Agreement
(2) they have independently evaluated
the desirability of the Directi Product
and are not
relying on any representation agreement,
guarantee or statement other than as set
forth in
this agreement; and
(3) they are eligible, to enter into this
Contract according to the laws of his
country.
4. RIGHTS OF DIRECTI
(1) Directi, in its sole discretion, reserves
the right to delete the Order or refuse
to fulfill the
Order within thirty (30) calendar days
from receipt of payment for the Order.
The
Contractees agrees that Directi and/or
its Service Providers and/or Directi Resellers
shall
not be liable for loss or damages that
may result from Directi’s Deletion
of the Order or
refusal to fulfill the Order.
(2) Directi shall change the Email Address
of the Customer in the FAPI Database upon
receiving authorization in the form of
a Fax on the Customer’s Letter Head,
or upon
receiving any other authorization as maybe
prescribed by Directi from time to time.
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(3) Directi and the .biz Registry Operator,
NeuLevel, Inc. expressly reserve the right
to
delete, suspend, deny, cancel or transfer
the Order, in their sole discretion, to
correct
mistakes made by Directi or NeuLevel,
Inc. in processing or executing such order,
to
protect the integrity and stability of
the registry, to comply with any applicable
laws,
government rules or requirements, requests
of law enforcement, in compliance with
any
dispute resolution process, in compliance
with any agreements executed by Directi,
including but not limited to the Registry-Registrar
agreement with NeuLevel, Inc.,
Registrar Accreditation Agreement with
ICANN and other ICANN Policies or to avoid
any liability, civil or criminal, on the
part of Directi and/or NeuLevel, Inc.,
as well as
their affiliates, subsidiaries, officers,
directors and employees. Directi and NeuLevel,
Inc.
also reserve the right to freeze the Order
during resolution of a dispute. The Contractees
agrees that Directi, its Service Providers,
Directi Resellers and the contactors,
employees,
directors, officers, representatives,
agents and affiliates, of Directi, its
Service Providers,
and Directi Resellers are not liable for
loss or damages that may result from any
of the
above.
5. BIZ RESTRICTIONS
(1) The SLD must be used or intended to
be used primarily for bona fide business
or
commercial purposes. For purposes of the
.biz Registration Restrictions (“Restrictions”),
“bona fide business or commercial
use” shall mean the bona fide use
or bona fide intent
to use the domain name or any content,
software, materials, graphics or other
information
thereon, to permit Internet users to access
one or more host computers through the
DNS:
(1) To exchange goods, services, or property
of any kind;
(2) In the ordinary course of trade or
business; or
(3) To facilitate:
(1) the exchange of goods, services, information,
or property of any kind; or,
(2) the ordinary course of trade or business.
(2) Registering a domain name solely for
the purposes of
(1) selling, trading or leasing the domain
name for compensation, or
(2) the unsolicited offering to sell,
trade or lease the domain name for compensation
shall not constitute a "bona fide
business or commercial use" of that
domain name.
6. BIZ CERTIFICATION
The Contractees hereby certify to the
best of their knowledge that:
(1) The SLD will be used primarily for
bona fide business or commercial purposes
and not
(1) exclusively for personal use; or
(2) solely for the purposes of
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(1) selling, trading or leasing the domain
name for compensation, or
(2) the unsolicited offering to sell,
trade or lease the domain name for compensation.
For
more information on the .biz restrictions,
which are incorporated herein by reference,
please see: http://www.neulevel.com/countdown/registrationRestrictions.html
(2) The SLD is reasonably related to the
Registrant's business or intended commercial
purpose at the
time of registration.
(3) To the best of the Contractees knowledge
and belief, neither this registration
of the SLD nor the
manner in which it is directly or indirectly
to be used infringes upon the legal rights
of a third
party;
(4) The SLD is not being registered for
nor shall it at any time whatsoever be
used for any unlawful
purpose whatsoever
7. PROVISION OF REGISTRATION DATA
(1) Provision of Registration Data: As
part of the registration process, the
Contractees are
required to provide Directi with certain
information and to update this information
to
keep it current, complete and accurate.
This information includes but is not restricted
to:
(1) Registrants full name, postal address,
e-mail address, voice telephone number,
and fax
number if available;
(2) The name of an authorized person for
contact purposes in the case of a registrant
that
is an organization, association, or corporation;
(3) The IP addresses of the primary nameserver
and any secondary nameserver(s) for the
SLD;
(4) The corresponding names of those nameservers;
(5) The full name, postal address, e-mail
address, voice telephone number, and fax
number if available of the technical contact
for the SLD;
(6) The full name, postal address, e-mail
address, voice telephone number, and fax
number if available of the administrative
contact for the SLD;
(7) The name, postal address, e-mail address,
voice telephone number, and fax number
if
available of the billing contact for the
SLD;
(8) Any remark concerning the SLD that
should appear in the Whois directory.
(2) Inaccurate or Unreliable Data: The
Contractees hereby represent and warrant
that the data
provided in the Order is true, correct,
up to date and complete and the Contractees
will
continue to keep all the information provided
up to date. The Contractees willful
provision of inaccurate or unreliable
information, or willful failure to promptly
update
information provided to Directi, or any
failure to respond for over five calendar
days to
Directi’s inquiries addressed to
the Customer or the Registrant, the administrative,
billing
or technical contact then appearing in
the Whois directory by email as per Section
33
(NOTICE) with respect to the Order, concerning
the accuracy of contact details
associated with the Order, shall constitute
a material breach of this Agreement.
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8. DOMAIN NAME DISPUTE POLICY
By requesting, reserving or registering
the SLD through Directi, or by transferring
the SLD
to Directi from another Registrar, the
Contractees hereby acknowledge that they
have read
and understood and agree to be bound by
the terms and conditions of the following
documents, as they may be amended from
time to time, which are hereby incorporated
and
made an integral part of this Agreement:
(1) The Uniform Domain Name Dispute Resolution
Policy(“UDRP”), available
at
http://www.icann.org/udrp/udrp.htm.
(2) The Start-up Trademark Opposition
Policy ("STOP"), available at
http://www.neulevel.com/countdown/stop.html;
and
(3) The Restrictions Dispute Resolution
Criteria and Rules(“RDRP”),
available at
http://www.neulevel.com/countdown/rdrp.html.
None of the violations of the Restrictions
will be enforced directly by or through
Directi, its
Service Providers, and Directi Resellers.
Directi will not review, monitor, or otherwise
verify
that the SLD is being used primarily for
business or commercial purposes or that
the SLD is
being used in compliance with the above
terms and conditions.
9. DOMAIN NAME DISPUTES
(1) The Contractees agree that, if the
use of the SLD is challenged by a third
party, the
Contractees will be subject to the provisions
specified in Section 8 (DOMAIN NAME
DISPUTE POLICY) in effect at the time
of the dispute. The Contractees agree
that in the
event a SLD dispute arises with any third
party, the Contractees will indemnify
and hold
Directi harmless pursuant to the terms
and conditions set forth in the Dispute
Policy and
this Agreement. If Directi is notified
that a complaint has been filed with a
judicial or
administrative body regarding the Contractees
use of the SLD, the Contractees agree
not
to make any changes to the Order without
Directi’s prior approval. Directi
may not allow
the Contractees to make changes to such
Order until:
(1) Directi is directed to do so by the
judicial or administrative body, or
(2) Directi receives notification, in
a manner prescribed by Directi from time
to time, by
the Contractees and the other party contesting
the Contractees registration or use of
the SLD that the dispute has been settled.
(2) Furthermore, the Contractees agrees
that if the customer is subject to litigation
regarding
the Contractees registration or use of
the SLD, Directi may deposit control of
the SLD
into the registry of the judicial body
by supplying a party with a registrar
certificate from
Directi.
10. TERM OF AGREEMENT AND RENEWAL
The term of this Agreement shall be equal
to the length of the term of the Order.
Should the
Customer choose to renew or otherwise
lengthen the term of your Order, then
the term of this
Agreement will be extended accordingly.
The Term shall continue until the Agreement
is terminated as provided for in Section
11
(TERMINATION OF AGREEMENT);
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11. TERMINATION OF AGREEMENT
(1) The Contractees may terminate this
Agreement by
(1) By giving Directi a 30 (Thirty) days
written notice of termination delivered
as per
Section 33 (NOTICE).
(2) With immediate effect, if Directi
is adjudged insolvent or bankrupt, or
if proceedings
are instituted by or against Directi seeking
relief, reorganization or arrangement
or
compromise or settlement under any laws
relating to insolvency, or seeking any
assignment for the benefit of creditors,
or seeking the appointment of a receiver,
liquidator or trustee of a Directi’s
property or assets or the liquidation,
dissolution or
winding up of a Directi’s Business.
(3) By notifying Directi in writing as
per Section 33 (NOTICE), as of the date
of receipt
of such notice, in the event that the
either of the Contractees does not agree
with any
revision to this Agreement made as per
Section 18 (RIGHT TO SUBSTITUTE
UPDATED AGREEMENT).
(2) Directi may Terminate this Agreement
(1) By giving either of the Contractees
a 30 (Thirty) days written notice of termination
delivered as per Section 33 (NOTICE).
(2) With immediate effect, if either of
the Contractees is adjudged insolvent
or bankrupt,
or if proceedings are instituted by or
against either of the Contractees seeking
relief,
reorganization or arrangement or compromise
or settlement under any laws relating
to
insolvency, or seeking any assignment
for the benefit of creditors, or seeking
the
appointment of a receiver, liquidator
or trustee of either of the Contractees
property or
assets or the liquidation, dissolution
or winding up of either of the Contractees
Business.
(3) By notifying either of the Contractees
as per Section 33 (NOTICE), as of the
date
specified in such notice of termination
under the following circumstances:
(1) In the event that either of the Contractees
or their Agent / Employee / Authorized
Representative materially breaches any
term of this Agreement, including any
of
its representations, warranties, covenants
and agreements hereunder, and such
breach is not cured within 30 (Thirty)
calendar days after email notification
thereof is given by Directi as per Section
33 (NOTICE).
(2) There was a material misrepresentation
and/or material inaccuracy, and/or
materially misleading statement in the
Contractees’ Application to Directi
and/or
any material accompanying the application.
(4) As provided for in Appendix ‘C’
(3) This Agreement would be terminated
with immediate effect upon transfer of
the SLD to
another Registrar.
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(4) Effect of Termination of this Agreement:
Directi may suspend the Customers access
to
applicable services of the FAPI immediately
upon receiving Termination notice from
either of the Contractees or upon learning
of any event, which Directi reasonably
determines, would lead to Termination
of the Agreement
(5) Any pending balance / accrued liability
due from the Contractees at the time of
termination of this Agreement will be
immediately payable.
(6) Neither Party shall be liable to the
other for damages of any sort resulting
solely from
terminating this Agreement in accordance
with its terms, unless specified otherwise.
(7) The Contractees shall be liable for
any damage arising from any breach of
this
Agreement.
12. FEES
As consideration for the Order, the Contractees
agree to pay to their respective Directi
Reseller who remits payment to Directi
on their behalf, all applicable service(s)
fees charged
by the Directi Reseller. All Payment Terms
and Conditions set out in Appendix ‘C’
will be
applicable.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL DIRECTI OR ITS SERVICE
PROVIDERS OR CONTRACTORS
OR THIRD PARTY BENEFICIARIES BE LIABLE
TO THE CONTRACTEES FOR ANY
LOSS OF REGISTRATION AND USE OF DOMAIN
NAME, OR FOR INTERRUPTIONS
OF BUSINESS, OR ANY SPECIAL, INDIRECT,
ANCILLARY, INCIDENTAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR ANY DAMAGES
RESULTING FROM LOSS OF PROFITS, ARISING
OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, REGARDLESS OF THE
FORM OF ACTION WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, EVEN IF
DIRECTI AND/OR ITS SERVICE PROVIDERS AND/OR
DIRECTI RESELLERS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
DIRECTI FURTHER DISCLAIMS ANY AND ALL
LOSS OR LIABILITY RESULTING
FROM, BUT NOT LIMITED TO:
(1) LOSS OR LIABILITY RESULTING FROM THE
UNAUTHORIZED USE OR
MISUSE OF AUTHENTICATION INFORMATION;
(2) LOSS OR LIABILITY RESULTING FROM FORCE
MAJEURE EVENTS AS
STATED IN SECTION 24 OF THIS AGREEMENT;
(3) LOSS OR LIABILITY RESULTING FROM ACCESS
DELAYS OR ACCESS
INTERRUPTIONS;
(4) LOSS OR LIABILITY RESULTING FROM NON-DELIVERY
OF DATA OR
DATA MISS-DELIVERY;
(5) LOSS OR LIABILITY RESULTING FROM ERRORS,
OMISSIONS, OR
MISSTATEMENTS IN ANY AND ALL INFORMATION
OR DIRECTI
PRODUCT(S) PROVIDED UNDER THIS AGREEMENT;
10
(6) LOSS OR LIABILITY RESULTING FROM THE
INTERRUPTION OF SERVICE.
If any legal action or other legal proceeding
(including arbitration) relating to the
performance under this Agreement or the
enforcement of any provision of this Agreement
is
brought against Directi by either of the
Contractees, then in no event will the
liability of
Directi exceed actual amount paid by the
Directi Reseller to Directi for the Order
minus
direct expenses incurred with respect
to the Order.
14. INDEMNIFICATION
(1) The Contractees, at their own expense,
will indemnify, defend and hold harmless,
Directi,
its Service Providers, and the contactors,
employees, directors, officers, representatives,
agents and affiliates, of Directi, and
its Service Providers, against any claim,
suit, action,
or other proceeding brought against Directi
or its Service Providers based on or arising
from any claim or alleged claim, of third
parties relating to or arising under this
Agreement, Directi Products provided hereunder
or use of the Directi Products, including
without limitation:-
(1) infringement by either of the Contractees
, or someone else using a Directi Product
with the Customer’s computer, of
any intellectual property or other proprietary
right
of any person or entity
(2) arising out of any breach by either
of the Contractees of this Agreement.
However, that in any such case Directi
may serve either of the Contractees with
notice of
any such claim and upon their written
request as per Section 35 (NOTICE), Directi
will
provide to them all available information
and assistance reasonably necessary for
them to
defend such claim, provided that they
reimburse Directi for its actual costs.
(2) The Contractees will not enter into
any settlement or compromise of any such
indemnifiable claim without Directi's
prior written consent, which shall not
be
unreasonably withheld.
(3) The Contractees will pay any and all
costs, damages, and expenses, including,
but not
limited to, actual attorneys' fees and
costs awarded against or otherwise incurred
by
Directi in connection with or arising
from any such indemnifiable claim, suit,
action or
proceeding.
(4) This indemnification is in addition
to any indemnification required under
the Section 8
(DISPUTE NAME DISPUTE POLICY) and Section
9 (DOMAIN NAME DISPUTES).
15. INTELLECTUAL PROPERTY
Subject to the provisions of this Agreement,
each Party will continue to independently
own
his/her/its intellectual property, including
all patents, trademarks, trade names,
domain
names, service marks, copyrights, trade
secrets, proprietary processes and all
other forms of
intellectual property. Any improvements
to existing intellectual property will
continue to be
owned by the Party already holding such
intellectual property.
Without limiting the generality of the
foregoing, no commercial use rights or
any licenses
under any patent, patent application,
copyright, trademark, know-how, trade
secret, or any
other intellectual proprietary rights
are granted by Directi to the Contractees,
or by any
disclosure of any Confidential Information
to the Contractees under this Agreement.
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16. DELAYS OR OMISSIONS; WAIVERS
No failure on the part of any Party to
exercise any power, right, privilege or
remedy under
this Agreement, and no delay on the part
of any Party in exercising any power,
right,
privilege or remedy under this Agreement,
shall operate as a waiver of such power,
right,
privilege or remedy; and no single or
partial exercise or waiver of any such
power, right,
privilege or remedy shall preclude any
other or further exercise thereof or of
any other power,
right, privilege or remedy.
No Party shall be deemed to have waived
any claim arising out of this Agreement,
or any
power, right, privilege or remedy under
this Agreement, unless the waiver of such
claim,
power, right, privilege or remedy is expressly
set forth in a written instrument duly
executed
and delivered as per Section 35 (NOTICE)
on behalf of such Party; and any such
waiver shall
not be applicable or have any effect except
in the specific instance in which it is
given.
No waiver of any of the provisions of
this Agreement shall be deemed to constitute
a waiver
of any other provision (whether or not
similar), nor shall such waiver constitute
a waiver or
continuing waiver unless otherwise expressly
provided in writing duly executed and
delivered as per Section 35 (NOTICE).
17. RIGHT TO SUBSTITUTE UPDATED AGREEMENT
(1) During the period of this Agreement,
the Contractees agrees that Directi may:
-
(1) revise the terms and conditions of
this Agreement; and
(2) change the services provided under
this Agreement
(2) Any such revision or change will be
binding and effective immediately on posting
of the
revision on the Directi Website
(3) The Contractees agrees to review the
Directi Website including the agreements,
periodically, to be aware of any such
revisions
(4) If the Contractees do not agree with
any revision, the Contractees may terminate
this
Agreement according to Section 14(1)(3)
of this Agreement
(5) The Contractees agrees that, continuing
use of the services under this Agreement
following notice of any revision, will
constitute as an acceptance of any such
revisions or
changes
18. CONFIDENTIALITY
All Confidential Information shall be
governed by the Confidentiality Agreement
as attached
in Appendix ‘B’.
19. PUBLICITY
The Contractees shall not create, publish,
distribute, or permit any written / Oral
/ electronic
material that makes reference to us or
our Service Providers or uses any of Directi’s
registered Trademarks / Service Marks
or our Service Providers’ registered
Trademarks /
12
Service Marks without first submitting
such material to us and our Service Providers
and
receiving prior written consent.
The Contractees gives Directi the right
to use the Contractees names in marketing
/
promotional material with regards to Directi
Products to Visitors to the Directi Website,
Prospective Clients and Directi Users.
20. TAXES
The Contractees shall be responsible for
sales tax, consumption tax, transfer duty,
custom
duty, octroi duty, excise duty, income
tax, and all other taxes and duties, whether
international, national, state or local,
however designated, which are levied or
imposed or
may be levied or imposed, with respect
to this Agreement and the Directi Products.
21. FORCE MAJEURE
Neither party shall be liable to the other
for any loss or damage resulting from
any cause
beyond its reasonable control (a "Force
Majeure Event") including, but not
limited to,
insurrection or civil disorder, riot,
war or military operations, national or
local emergency,
acts or directives or omissions of government
or other competent authority, compliance
with
any statutory obligation or executive
order, strike, lock-out, work stoppage,
industrial
disputes of any kind (whether or not involving
either party's employees), any Act of
God,
fire, lightning, explosion, flood, earthquake,
eruption of volcano, storm, subsidence,
weather
of exceptional severity, equipment or
facilities breakages / shortages which
are being
experienced by providers of telecommunications
services generally, or other similar force
beyond such Party's reasonable control,
and acts or omissions of persons for whom
neither
party is responsible. Upon occurrence
of a Force Majeure Event and to the extent
such
occurrence interferes with either party's
performance of this Agreement, such party
shall be
excused from performance of its obligations
(other than payment obligations) during
the first
six months of such interference, provided
that such party uses best efforts to avoid
or remove
such causes of non performance as soon
as possible.
22. ASSIGNMENT / SUBLICENSE
Except as otherwise expressly provided
herein, the provisions of this Agreement
shall inure
to the benefit of and be binding upon,
the successors and assigns of the Parties;
provided,
however, that any such successor or assign
be permitted pursuant to the Articles,
Bylaws or
policies of Directi.
The Customer shall not assign, sublicense
or transfer its rights or obligations
under this
Agreement to any third person/s except
as provided for in Section 24 (CUSTOMER
–
CUSTOMER TRANSFER) or with the prior written
consent of Directi delivered and
executed as per Section 32 (NOTICE).
The Registrant shall not assign, sublicense
or transfer its rights or obligations
under this
Agreement to any third person/s except
as provided for in Section 25 (CHANGE
OF
REGISTRANT) or with the prior written
consent of Directi delivered and executed
as per
Section 32 (NOTICE).
23. CUSTOMER – RESELLER TRANSFER
(1) Directi may transfer the Customer
from the existing Directi Reseller to
another Directi
Reseller under the following circumstances:
-
13
(1) Authorization from the Customer and/or
an Agent or Authorized Representative
of
the Customer in a manner prescribed by
Directi from time to time;
(2) Authorization from the existing Directi
Reseller and/or his Agent or Authorized
Representative in a manner prescribed
by Directi from time to time; and
(3) If existing Directi Reseller ceases
to be a Directi Reseller;
(4) If that Directi Reseller ceases to
sell .biz SLD’s;
(5) On receiving orders from a competent
Court or Law Enforcement Agency;
(2) In the above circumstances the Customer
shall extend full cooperation to Directi
in
transferring the Order of the Customer
from existing Directi Reseller to new
Directi
Reseller selected by Directi / Customer
/ Existing Reseller and/or their Agents
or
Authorized Representatives including without
limitation, handing over all data required
to
be stored by the Customer as per Section
2(5), and complying with all requirements
to
facilitate a smooth transfer.
24. CUSTOMER – CUSTOMER TRANSFER
(1) Directi may transfer the Order of
the Customer to another Directi Customer
under the
following circumstances: -
(1) Authorization from the Customer and/or
their Agent or Authorized Representative
in
a manner prescribed by Directi from time
to time;
(2) On receiving orders from a competent
Court or Law Enforcement Agency;
(3) Breach of Contract;
(4) Termination of this Agreement;
(5) Directi learns of any such event,
which Directi reasonably determines would
lead to
Termination of this Agreement, or would
constitute as Breach thereof.
(2) In the above circumstances the Customer
shall extend full cooperation to Directi
in
transferring the Order of the Customer
to another Directi Customer selected by
Directi /
Customer and/or their Agents or Authorized
Representatives including without limitation,
handing over all data required to be stored
by the Customer as per Section 3(5), and
complying with all requirements to facilitate
a smooth transfer.
(3) The Customer agrees that prior to
transferring the Order to another person
(the
Transferee"), the Customer shall
require the Transferee to agree to be
bound by all the
terms and conditions of the then applicable
Customer .biz Product Agreement, in the
prescribed manner.
(4) The Customer’s Order(s) will
not be transferred until Directi receives
such written
assurances or other reasonable assurance
that the Transferee has been bound by
the
contractual terms of this Agreement (such
reasonable assurance as determined by
Directi
in its sole discretion). If the Transferee
fails to be bound in a reasonable fashion
(as
14
determined by Directi in its sole discretion)
to the terms and conditions in this
Agreement, any such transfer will be null
and void.
25. CHANGE OF REGISTRANT
The Contractees agree that prior to changing
the Registrant Information of the Order
to
another person, the Contractees shall
require the new Registrant to agree to
be bound by all
the terms and conditions of the then applicable
Customer .biz Product Agreement, in the
then
prescribed manner. If the New Registrant
fails to be bound in a reasonable fashion
(as
determined by Directi in its sole discretion)
to the terms and conditions in this Agreement,
any such transfer will be null and void.
26. TRANSFER TO ANOTHER REGISTRAR
The Contractees acknowledge and agree
that during the first 60 days after initial
registration
of the SLD, the Contractees will not be
able to transfer the SLD to another Registrar.
The
Contractees agree to provide authorization
to Directi for the transfer of the SLD
to another
Registrar. Directi, in its sole discretion
will determine, if such authorization
is adequate. The
Contractees request to transfer to another
registrar may be denied in situations
described in
this Agreement including, but not limited
to: a dispute over the identity of the
domain name
holder; bankruptcy; and default in the
payment of any fees.
27. NO GUARANTY
The Contractees acknowledges that registration
or reservation of the SLD does not confer
immunity from objection to either the
registration, reservation, or use of the
SLD.
28. DISCLAIMER
The FAPI, Directi Servers, FAPI Server,
Directi Website, Customer Control Panel
and any
other Software / API / Specification /
Documentation / Application Services is
provided on
"as is” and “where is"
basis and without any warranty of any
kind.
DIRECTI EXPRESSLY DISCLAIMS ALL WARRANTIES
AND / OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY
OR SATISFACTORY
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE
AND
NONINFRINGEMENT OF THIRD PARTY RIGHTS.
DIRECTI DOES NOT WARRANT THAT THE FUNCTIONS
CONTAINED IN ANY OF
THE ABOVE WILL MEET THE CONTRACTEES’
REQUIREMENTS, OR THAT THE
OPERATION OF THE ANY OF THE ABOVE WILL
BE UNINTERRUPTED OR ERRORFREE,
OR THAT DEFECTS IN ANY OF THE ABOVE WILL
BE CORRECTED.
DIRECTI WILL NOT BE LIABLE FOR THE CONSEQUENCES
OF ANY
INTERRUPTIONS OR ERRORS.
FURTHERMORE, DIRECTI NEITHER WARRANTS
NOR MAKES ANY
REPRESENTATIONS REGARDING THE USE OR THE
RESULTS OF THE FAPI,
DIRECTI SERVERS, FAPI SERVER, DIRECTI
WEBSITE, CUSTOMER CONTROL
PANEL AND ANY OTHER SOFTWARE / API / SPECIFICATION
/ DOCUMENTATION
/ APPLICATION SERVICES IN TERMS OF THEIR
CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE.
15
NO ADVICE OR INFORMATION, WHETHER ORAL
OR WRITTEN, OBTAINED BY
THE CONTRACTEES FROM DIRECTI OR THROUGH
THE DIRECTI WEBSITE
SHALL CREATE ANY WARRANTY NOT EXPRESSLY
MADE HEREIN.
29. JURISDICTION
This Agreement shall be governed by and
interpreted and enforced in accordance
with the
laws of India applicable therein without
reference to rules governing choice of
laws. Any
action relating to this Agreement must
be brought in Mumbai High Court or Court
subordinate
to it, situated in Mumbai. Directi reserves
the right to enforce the law in the
Country/State/District where the Registered/Corporate/Branch
Office, or Place of
Management/Residence of either of the
Contractees is situated as per the laws
of that
Country/State/District.
30. MISCELLANEOUS
(1) Any reference in this Agreement to
gender shall include all genders, and
words
importing the singular number only shall
include the plural and vice versa.
(2) All references in this Agreement to
dollars and cents are expressed in US
currency.
(3) There are no representations, warranties,
conditions or other agreements, express
or
implied, statutory or otherwise, between
the Parties in connection with the subject
matter of this Agreement, except as specifically
set forth herein.
(4) The Parties shall attempt to resolve
any disputes between them prior to resorting
to
litigation through mutual understanding
or a mutually acceptable Arbitrator.
(5) This Agreement shall inure to the
benefit of and be binding upon Directi
and the
Contractees as well as all respective
successors and permitted assigns.
(6) Survival: In the event of termination
of this Agreement for any reason, Sections
1, 3(2),
3(4), 3(5), 5, 6, 7, 8, 9(2), 10, 11,
12, 14(4), 14(5), 14(6), 14(7), 15, 16,
17, 18, 19, 20,
21, 22, 23, 24, 25, 27, 28, 29, 30, 31,
32, 33, 34, 35 of this Agreement and Sections
1, 2
of Appendix A, and all Sections of Appendix
B and of Appendix C shall survive.
(7) This Agreement does not provide and
shall not be construed to provide third
parties (i.e.
non-parties to this Agreement), with any
remedy, claim, and cause of action or
privilege
against Directi.
(8) The Contractees, Directi, its Service
Providers, Directi Resellers are independent
contractors, and nothing in this Agreement
will create any partnership, joint venture,
agency, franchise, and sales representative
or employment relationship between the
parties.
(9) Further Assurances: Each Party hereto
shall execute and/or cause to be delivered
to the
other Party hereto such instruments and
other documents, and shall take such other
actions, as such other Party may reasonably
request for the purpose of carrying out
or
evidencing any of the transactions contemplated
/ carried out, by / as a result of, this
Agreement.
16
(10) Construction: The Parties agree that
any rule of construction to the effect
that
ambiguities are to be resolved against
the drafting Party shall not be applied
in the
construction or interpretation of this
Agreement.
(11) Entire Agreement; Severability: This
Agreement, which includes Appendix A,
Appendix B, Appendix C, Appendix D constitutes
the entire agreement between the
Parties concerning the subject matter
hereof and supersedes any prior agreements,
representations, statements, negotiations,
understandings, proposals or undertakings,
oral or written, with respect to the subject
matter expressly set forth herein. If
any
provision of this Agreement shall be held
to be illegal, invalid or unenforceable,
each
Party agrees that such provision shall
be enforced to the maximum extent permissible
so
as to effect the intent of the Parties,
and the validity, legality and enforceability
of the
remaining provisions of this Agreement
shall not in any way be affected or impaired
thereby. If necessary to effect the intent
of the Parties, the Parties shall negotiate
in
good faith to amend this Agreement to
replace the unenforceable language with
enforceable language that reflects such
intent as closely as possible.
(12) The division of this Agreement into
Sections, Subsections, Appendices, Extensions
and
other Subdivisions and the insertion of
headings are for convenience of reference
only
and shall not affect or be used in the
construction or interpretation of this
Agreement.
(13) This agreement may be executed in
counterparts.
(14) Language. All notices, designations,
and specifications made under this Agreement
shall be made in the English Language
only.
(15) Dates and Times. All dates and times
relevant to this Agreement or its performance
shall be computed based on the date and
time observed in Mumbai, India (IST) i.e.
GMT+5:30
31. BREACH
In the event that Directi suspects breach
of any of the terms and conditions of
this
Agreement:
(1) Directi can immediately, without any
notification and without assigning any
reasons,
suspend / terminate the Customers access
to the FAPI Server.
(2) The Contractees will be immediately
liable for any damages caused by any breach
of any
of the terms and conditions of this Agreement.
(3) Directi can immediately, without any
notification and without assigning any
reasons,
delete / suspend / terminate the Order.
32. NOTICE
(1) Any notice or other communication
required or permitted to be delivered
to Directi under
this Agreement shall be in writing unless
otherwise specified and shall be deemed
properly delivered when delivered to contact
address specified on the Directi Website
by
registered mail or courier. Any communication
shall be deemed to have been validly and
effectively given, on the date of receiving
such communication, if such date is a
Business
Day and such delivery was made prior to
17:30 (Indian Standard Time) and otherwise
on
the next Business Day.
17
(2) Any notice or other communication
required or permitted to be delivered
to the
Contractees under this Agreement shall
be in writing unless otherwise specified
and shall
be deemed properly delivered, given and
received when delivered to contact address
of
the Contractees in the FAPI Database.
(3) Any notice or other communication
to be delivered to any party via email
under this
agreement shall be deemed to have been
properly delivered if sent in case of
Directi to its
Legal Contact mentioned on the Directi
Website and in case of the Contractees
to their
respective email address in the FAPI Database.
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APPENDIX ‘A’
TERMS AND CONDITIONS OF FAPI USAGE
1. ACCESS TO FAPI SERVER
(1) Directi may in its ABSOLUTE and UNFETTERED
SOLE DISCRETION, temporarily
suspend individual or collective access
to the FAPI Server in the event of significant
degradation of the FAPI Server, or at
any time Directi may deem necessary.
(2) Directi may in its ABSOLUTE and UNFETTERED
SOLE DISCRETION make
modifications to the FAPI and the FAPI
Server from time to time.
(3) Access to the FAPI Server is controlled
by authentication information provided
by
Directi. Directi is not responsible for
any FAPI Transaction that takes place
using this
authentication information whether or
not authorized.
(4) The FAPI User will not attempt to
hack, crack, gain unauthorized access,
misuse or
engage in any practice that may hamper
operations of the FAPI Server including,
without Limitation temporary / permanent
slow down of the FAPI Server, damage to
data, software, operating system, applications,
hardware components, network
connectivity or any other hardware / software
that constitute the FAPI Server and
architecture needed to continue operation
thereof.
(5) FAPI User will not send repeated unreasonable
FAPI Transactions or establish repeated
unreasonable FAPI Connections. Directi
will in its ABSOLUTE and UNFETTERED
SOLE DISCRETION decide what constitutes
as a reasonable FAPI Transaction and a
reasonable FAPI Connection.
(6) FAPI User will take reasonable measures
and precautions to ensure secrecy of
authentication information.
(7) FAPI User will take reasonable precautions
to protect FAPI Data from misuse,
unauthorized access or disclosure, alteration,
or destruction.
(8) Directi shall not be responsible for
damage caused due to the compromise of
your
Authentication information in any manner
OR any authorized/unauthorized use of
the
Authentication Information.
(9) FAPI User shall not use or permit
use of the FAPI and the FAPI Server in
violation of
any federal, state or local rule, regulation
or law, or for any unlawful purpose.
(10) Directi shall have the right to temporarily
or permanently suspend access of a FAPI
User to the FAPI Server if Directi in
its ABSOLUTE and UNFETTERED SOLE
DISCRETION suspects misuse of the access
to the FAPI Server, or learns of any
possible misuse that has occurred, or
will occur with respect to a FAPI User.
2. USAGE OF FAPI Data
(1) FAPI Data cannot be used for any purpose
other than those listed below, except
if explicit
written permission has been obtained from
Directi: -
(1) To initiate FAPI Transactions; and
19
(2) To communicate with the Account Manager
of an Order with respect to the Order,
Modifications and Management of the Order
thereof, or any other matter pertaining
to
Directi or its services.
20
APPENDIX ‘B’
CONFIDENTIALITY
The Contractees use and disclosure of
Confidential Information disclosed hereunder
are subject to
the following terms and conditions: -
(1) With respect to the Confidential Information,
the Contractees agree that:
(1) The Contractees shall treat as strictly
confidential, and use all reasonable efforts,
including implementing reasonable physical
security measures and operating
procedures, to preserve the secrecy and
confidentiality of, all Confidential Information
received from Directi.
(2) The Contractees shall make no disclosures
whatsoever of any Confidential Information
to others, provided however, that if the
Contractees are a corporation, partnership,
or
similar entity, disclosure is permitted
to the their officers and employees who
have a
demonstrable need to know such Confidential
Information, provided that the
Contractees shall advise such personnel
of the confidential nature of the Confidential
Information and of the procedures required
to maintain the confidentiality thereof;
and
(3) The Contractees shall not modify or
remove any confidentiality legends and/or
copyright notices appearing on any Confidential
Information of Directi.
(2) The obligations set forth in this
Appendix shall be continuing, provided,
however, that this
Appendix imposes no obligation upon the
Contractees with respect to information
that:
(1) is disclosed with Directi's prior
written approval; or
(2) is or has entered the public domain
in its integrated and aggregated form
through no
fault of the receiving party; or
(3) is known by the Contractees prior
to the time of disclosure in its integrated
and
aggregated form; or
(4) is independently developed by the
Contractees without use of the Confidential
Information; or
(5) is made generally available by Directi
without restriction on disclosure.
(3) In the event the Contractees is required
by law, regulation or court order to disclose
any of
Directi’s Confidential Information,
the Con tractees will promptly notify
Directi in writing
prior to making any such disclosure in
order to facilitate Directi seeking a
protective order
or other appropriate remedy from the proper
authority, at the Contractees’ expense.
The
Contractees agree to cooperate with Directi
in seeking such order or other remedy.
The
Contractees further agree that if Directi
is not successful in precluding the requesting
legal
body from requiring the disclosure of
the Confidential Information, it will
furnish only that
portion of the Confidential Information,
which is legally required.
(4) In the event of any termination of
this Agreement, all Confidential Information
in the
Contractees’ possession shall be
immediately returned to Directi; the Contractees
shall
destroy all copies (including partial
copies) of all Confidential Information,
including
copied portions contained in derivative
works. Within 30 (Thirty) days of termination
of
this Agreement, the Contractees will certify
in writing as per Section 35 (NOTICE)
of the
21
Agreement, to Directi the Contractees’
compliance with this provision. The Contractees
shall provide full voluntary disclosure
to Directi of any and all unauthorized
disclosures
and/or unauthorized uses of any Confidential
Information; and the obligations of this
Appendix shall survive such termination
and remain in full force and effect.
(5) The Contractees duties under this
Appendix shall expire five (5) years after
the information
is received or earlier, upon written agreement
of the parties.
(6) The Contractees agrees that Directi
shall be entitled to seek all available
legal and equitable
remedies for the breach by either of the
Contractees of all of these clauses in
this Appendix
at the cost of the Contractees.
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APPENDIX ‘C’
PAYMENT TERMS AND CONDITIONS
1. CHARGEBACKS / PAYMENT REVERSALS
In the event that the Contractees charge
back a payment made via Credit Card to
the
Customer’s Directi Reseller or the
payment instrument sent by the Contractees
bounces due
to Lack of Funds or any other Reason,
then upon receiving reasonable evidence
from the
Directi Reseller:
(1) Directi may immediately suspend the
Customers access to the FAPI Server.
(2) Directi in its ABSOLUTE and UNFETTERED
SOLE DISCRETION may suspend /
delete any or all of the Orders placed
by the Customer as well as stop / suspend
/ delete
any Orders currently being processed.
(3) Directi may terminate this Agreement
with immediate effect
Directi, in its sole discretion will determine
what constitutes as reasonable evidence.
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