Master Service Agreement
Wholesale Services

1.

Definitions. The following capitalized terms shall have the meanings ascribed to them below. Other terms used in this Agreement, as defined terms, shall have the meanings ascribed to them in the context in which they are defined.

1.1.

“API” means Service Provider’s Application Program Interfaces (such as a HTTP Toolkit, Mailrobot, EPP service or other technical gateways) by which Customer may interact with the System of the Service Provider.

1.2.

“Effective Date” shall be the date on which both parties first execute the Agreement.

1.2.

“Confidential Information” means all information and materials, including, but without limitation, computer software, data, information, databases, protocols, reference implementation and documentation, and functional and interface specifications, provided by the Disclosing Party to the Receiving Party under this Agreement and marked or otherwise identified as confidential, or can reasonably be assumed as confidential, or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in writing delivered to Receiving Party within 15 days of the disclosure.

1.4.

“Customer-Client” means a third party that is using the services of Service Provider indirectly through the Customer, where Customer acts as Service Provider to the third party.

1.5.

“Customer Portal” means one or more web-based customer interfaces operated by the Service Provider that enable Customer to submit Orders for and use certain Services.

1.6.

“DNS” means Domain Name System, the hierarchical naming system for computers, services, or any resource connected to the Internet or private networks.

1.7.

“Domain Name” or “Registered Name” means a unique character string in a TLD that corresponds to an Internet Protocol address on the Internet, based on the Domain Name System (DNS) managed by the Service Provider for the Customer or Customer-Clients.

1.8.

“GDPR” shall mean the General Data Protection Regulation applicable to data processors and controllers in the EU as well as to personal information of individuals in the European Union.

1.10.

“ICANN” means the Internet Corporation for Assigned Names and Numbers.

1.11.

“Order” means any request for Services submitted by Customer to Service Provider whether online or other means approved by the Service Provider.

1.12.

“RDS” means the Registration Directory Service applicable to each TLD that contains the registration data for each registered Domain Name.

1.13.

“Registrant” means the individual or organization entered into the RDS as Owner Contact, i.e. the party legally responsible for the use of the Domain Name.

1.14.

“Registrant Information” means the data provided by the Registrant showing ownership and/or authority to manage a Domain Name.

1.15.

“Registrar” means an entity accredited by ICANN or Registry Operator for the registration of Domain Names for Registrants.

1.16.

“Registration” means the service of registering a Domain Name for Customer with the Registry Operator.

1.17.

“Registry Database” means a database comprised of data of Domain Names that is managed and operated by a Registry Operator, which is used to generate either authoritative DNS resource records or responses to domain-name availability lookup requests or Whois queries, for some or all of those domain names.

1.18.

“Registry Operator” or “Registry” means the authorized operator of a TLD that operates and manages a Registry Database for a TLD, as well as, manages the registration of Domain names within the TLDs for which it is responsible, controlling the policies of domain name allocation, and technically operates its TLD.

1.19.

“Reseller” – a Customer using the Services on behalf or for the benefit of third-party Registrants with the agreement of Service Provider.

1.20.

“Reseller Activity” – the use of the System or the Services to provide Service Provider’s services to Customer-Clients.

1.21.

“Renewal” means extending the registration term of a Domain Name.

1.22.

“Restore” means the recovery of a deleted domain name that has not yet been released for new Registrations by the Registry Operator (this is only available in certain TLDs in a certain time frame).

1.23.

“Schedule” means a written document, signed by the Parties, that describes one or more Services available from Service Provider and is, by its terms, governed by this Agreement.

1.24.

“Services” means, collectively, all services made available by Service Provider through the System by Service Provider for Customer.

1.25.

“System” means the entirety of the front-end portal and back-end systems (including, but not limited to, all software, hardware, and firmware) developed, managed and/or operated by the Service Provider that technically processes and manages the provision of the Services to the Customer. For clarity, the Customer Portal and the API are a part of the System and the term System may refer to one or more such systems.

1.26.

“TLD” means a Top-Level Domain, which is the highest level of Domain Names in the DNS, separated into generic TLDs (each a “gTLD”) and country-specific country code TLDs (each a “ccTLD”).

1.27.

“TLD Appendices” and “TLD Appendix” refer to Appendices to this agreement that contain additional terms and conditions applicable to the Registration and use of Domain Names in applicable TLDs.

1.28.

“Transfer” means a change of the Registrar of record for a Domain Name.

2.

Services. Subject to the terms and conditions of this Agreement, its Appendices and Schedules, the general Terms and Conditions of Service Provider and all supplemental agreements, Service Provider shall use commercially reasonable efforts to provide to Customer the Services as described in this agreement and the Schedules in accordance with the terms and conditions of this Agreement and each applicable Schedule and Appendix. Service Provider may provide some or all of the Services through affiliated or non-affiliated third-party vendors.

3.

Customer Portal and API. Subject to the terms and conditions of this Agreement, Service Provider will provide Customer with access to the Customer Portal and API. Service Provider will use commercially reasonable efforts to maintain availability of the Customer Portal and API 99% of the time throughout the year, excluding regularly scheduled maintenance periods and technical or other problems not within the control of Service Provider. Service Provider shall perform maintenance operations, repairs or upgrades to the System in regular intervals which may affect the access of the Customer to the System during the scheduled operation, and Service Provider will make commercially reasonable efforts to provide reasonable advance notice to Customer of any such operations, repairs or upgrades. The Customer Portal and API shall, where applicable to the Services purchased by Customer, include all necessary management tools, overview of domain name and service portfolios, as well as overview of Order status. Service Provider shall use commercially reasonable efforts to resolve all technical difficulties in the Customer Portal and API. Customer shall promptly inform Service Provider of any difficulties or problems encountered in the System.

4.

Access. Service Provider shall provide Customers’ designated users (each a “User”) with login credentials (“Access Data”) for access to the Customer Portal and API. Customer agrees to keep all Access Data received or created by Customer secret and to inform Service Provider in the event Customer becomes aware or has reason to believe that any Access Data has been compromised or that an unauthorized party has or is gaining access to Access Data. Access Data shall be limited to use by the Customer and Users and shall not be transferable without express written consent from Service Provider. Service Provider may lock or suspend access to an account if Service Provider reasonably believes it is being used (or is susceptible to being used) by an unauthorized party. Service Provider will inform the Customer of any such measures taken. Some operations may be restricted at Customer’s request or by Service Provider’s policy and may require a master keyword or personal verification for further access to an account or ability to use one or more features. Customer hereby declares, represents and warrants that each User has the authority to place Orders directly for the Customer and Service Provider may rely on any and all Orders placed by any User or anyone Customer reasonably believes to be a User. Customer will ensure that each User agrees to be bound by the terms and conditions of this Agreement and has consented to the processing of their personal information by Service Provider.

5.

User Restrictions.

5.1

Customer shall not use the System or Services for any purposes other than as set forth in this Agreement, except with the prior written consent of Service Provider.

5.2

Customer will not use the System or the Services to provide Service Provider’s services to Customer-Clients unless explicitly permitted by Service Provider. Any permitted Reseller Activity shall be governed by the terms of the Reseller Schedule to this Agreement.

5.3

Customer will not (i) copy or duplicate the System; (ii) for any purpose other than establishing interoperability decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the System is compiled or interpreted; (iii) modify the System or create any derivative products from any of the foregoing, except with the prior written consent of Service Provider; or, (iv) except as expressly permitted in this Agreement, assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights granted in this Agreement. Customer acknowledges that this Agreement grants certain rights to access the System, as hosted by Service Provider, but nothing in this Agreement may be construed to require delivery of a copy of the software underlying the System or to grant Customer any right to obtain such a copy. Neither Customer nor any End User is authorized to use or operate the System in violation of the foregoing user restrictions. The Customer will bind the End Users to terms of use for the System that shall not be less restrictive than the terms agreed upon in this Agreement, where necessary,

5.4

Customer will not abuse access to the System by engaging in behaviour that may affect the security and stability of the System or third-party systems or that negatively impact the enjoyment of the Service by other customers. Failure to comply with Third-Party Policies or instructions, bulk registration attempts of deleted domains names or failure to comply with legal requirements may also be classified as abusive behavior. Service provider reserves the right to temporarily disable Customers’ access to the System to ensure the stability and performance of the System as well as the systems of its providers for the remainder of its customers.

5.4

Customer will use the System and Services only as permitted in this Agreement and in compliance with all applicable laws, statutes, regulations or rules promulgated by governing authorities having jurisdiction over the Parties or the Services. Customer will not use or permit the use of the Services for illegal purposes or in contradiction to the Anti-Abuse Policy.

6.

Level of Support Service.

6.1

Service Provider shall use commercially reasonable efforts to provide Customer with technical assistance for all Customer Orders and technical inquiries received by phone or email. Service Provider shall provide Customer with email and phone support during regular business hours, excluding national and local holidays in the jurisdiction of this agreement.

6.2

Customer is solely responsible for the correct implementation, testing and use of the System. Service Provider will provide implementation templates, technical support and API documentation to assist Customer with its connection to the System. For certain Services, an OT&E will be available which can be used to test the Service and any incoming changes or new functionalities during the term of this Agreement. Customer will provide its employees, contractors, or agents with sufficient technical training to properly respond to and fix all technical problems concerning the use of the Service.

6.3

The Customer shall provide its employees, contractors, or agents that use or access the Services with sufficient technical training to the proper use of the System and to fix technical problems arising from its connection to the System.

6.4

At Service Providers’ sole discretion, Customer may be assigned a dedicated account manager who will coordinate all activities for Customer’s account.

7

Customer Obligations. Customer shall respond promptly to all Service Provider requests to provide direction, information or authorizations that are reasonably necessary for Service Provider to perform Services in accordance with this Agreement, and shall ensure that information provided by Customer is complete and accurate in all material respects. Customer further undertakes to ensure that any order submitted to Service Provider is correct and to check the confirmation of order and notify the Service Provider if there is any mistake or discrepancies. In case a Registry updates, changes or modifies its systems or processes that necessitate changes to the System or the Service, Service Provider shall provide notice to Customer regarding such changes resulting from the aforementioned Registry actions. The Customer shall at its own cost update its systems and API connections to ensure continued interoperability with the System and the Service.

8.

Data Processing Agreement. The Parties accept and agree to the terms and conditions of Service Provider’s Data Processing Agreement and, as the case may be, Standard Contractual Clauses, signed separately by the Parties (“DPA”). The DPA (if applicable) forms a part of and is hereby incorporated into this Agreement.

9.

Acceptance of Service Provider terms and policies. All of the Services provided under this Agreement are provided with additional terms, conditions, rules, policies and regulations that apply to the respective Services and/or the use of the Services. Customer agrees to review, be bound by and to comply with all applicable terms and policies when ordering or using any Services, and Customer acknowledges and agrees that these may change over time and should be reviewed prior to each submission of an Order. The terms and policies include, without limitation, Service Providers’ general terms and conditions, the registration and management terms for domain names and the Anti-Abuse Policy. Service Provider will provide information on essential changes to such terms and policies in its newsletters and online news alerts and to provide a link to the most current terms and policies on its websites but is under no further obligation concerning changes to its terms and policies.

10.

Acceptance of Third-Party Policies. Customer consents to the Service Provider provision certain Services either directly or through an intermediary. The Customer also understands and agrees that certain Services may be provided, supported or regulated by a multitude of different organizations internationally (each a “Third-Party Provider”), such as, without limitation, Registrars, Registry Operators and ICANN, and that each Third Party Provider may have additional terms, conditions, rules, policies and regulations (“Third-Party Policies”) that apply to some or all of the Services and/or the use of any Services. Customer agrees to review, be bound by and to comply with all applicable Third-Party Policies when ordering or using any Services, and Customer acknowledges and agrees that these may change over time and should be reviewed prior to each submission of an order. Without limiting the foregoing, Customer acknowledges and agrees that for the Registration of Domain Names, each sponsoring Registrar (meaning sponsoring a particular Domain Name) requires acceptance of the Registrar’s registration terms by the Registrant. With respect to each Domain Name registered through the Service, Customer agrees to and accepts all such registration terms and other Third-Party Policies and further agrees to require the Registrant to agree to all such Registrars’ registration terms and other Third-Party Policies. Service Provider will endeavor to provide information on essential changes to Third-Party Policies in its newsletters and online news alerts and to provide a link to the most current Third-Party Policies in the TLD Appendices to this Agreement or dedicated TLD or TLD policy landing pages but is under no further obligation concerning changes to Third-Party Policies. For clarity and without limiting the foregoing, Customer agrees to be bound by the dispute resolution policies adopted by the Registry Operators (e.g., the Uniform Dispute Resolution Policy (“UDRP”) or the Uniform Rapid Suspension System (“URS”)) or other alternative dispute resolution procedures as adopted by the applicable Registry Operator and published on the Registry Operators website.

11.

Partial Delivery. Should the Services be only partially deliverable, the Customer will accept partial delivery unless the Service Provider has positive knowledge that a partial delivery is unreasonable for the Customer.

12.

Delays. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

13.

Term and Termination. The term of the Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated as provided herein (the “Term“).

13.1.

Beginning 36 months after the Effective Date, (i) either party may terminate this Agreement by providing written notice to the other party at least six (6) months in advance of the termination date, and (ii) Service Provider shall have the right to immediately terminate the Agreement upon written notice to the Customer in the event the Customer is not using any paid Services under the Agreement.

13.2.

Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and such other Party does not cure the breach within fifteen (15) days of receiving written notice (with sufficient detail) of the breach from the Party alleging the material breach. Without limiting the foregoing, the Parties agree that Customer’s failure to pay when due amounts owed under this Agreement, Customer’s failure to respond to urgent inquiries from Service Provider within fifteen (15) days of receipt of the inquiry, Customer’s violation of any Service Provider terms or policies or Third-Party Policies, and Customer’s use of any of the Services for unlawful or prohibited purposes, will, in each case, constitute a material breach of the Agreement.

13.3.

To the extent permitted under applicable law, either Party may terminate this Agreement, if the other Party: (1) liquidation, bankruptcy, insolvency (whether compulsorily or voluntarily); (2) has a receiver, professional liquidator, a trustee in bankruptcy or similar officer appointed over all or a material part of its assets or undertaking; (3) enters into an arrangement or composition with its creditors or convenes a meeting with its creditors; (4) passes a resolution for winding-up or a court makes an order to that effect or a court makes an order for administration (or any equivalent order in any jurisdiction); (5) ceases to carry on business; or (6) is unable to pay its debts as they become due in the ordinary course of business. This Agreement will automatically terminate in the event either party files a petition or other request to initiate a voluntary bankruptcy proceeding and the court-appointed receiver does not elect the continuation of the service

13.4.

Either Party may terminate the Agreement in its sole discretion if the other Party is acting in such a manner to publicly and materially disparage the name of the other Party or bring the other Party or affiliated companies into disrepute.

13.5.

Service Provider may from time to time conduct a validation of any credentials and data provided by Customer or initiate a background check of the Customer, Registrants using Service Providers’ services through the Customer and/or the Customer-Clients of the Customer. Customer shall provide any additional information reasonably requested by Service Provider to validate the accuracy of any data previously provided and/or provide evidence of its continued legal status. In case the Customer cannot be validated to the satisfaction of Service Provider or if Customer fails to cooperate with the validation process, Service Provider may terminate this Agreement in accordance with the terms for material breach of this Agreement.

13.6.

Upon termination of this Agreement, the Customer shall immediately cease using any intellectual properties of the Service Provider, including the Service Provider’s logos and other graphical property and shall remove such intellectual property from the Customer’s website and from any and all advertising materials.

13.7.

Termination shall not relieve the Customer of any of its obligations to Service Provider and Third-Party Providers accrued before the end of the Term and at the end of the Term. Upon termination, Customer shall pay all outstanding amounts in full, regardless of the date charges were incurred by the Service Provider. Pre-existing Service Orders and important notices will no longer be processed by Service Provider following the effective termination date unless the Parties agree otherwise in writing. Customer shall remain responsible for all payments for orders performed under the Agreement. Customer shall Transfer all Services previously provided by Service Provider pursuant to the Agreement to another provider prior to the End of the Term in accordance with the Third-Party Policies applicable to the individual Services. Upon termination of the Agreement, Service Provider shall be relieved of all responsibility for the further (i) maintenance of Services not transferred to another provider, and (ii) provision of the System to the Customer unless the Parties agree otherwise in writing. This Paragraph shall survive the termination of the Agreement.

14.

Fees and Payment.

14.1.

In consideration for the Services provided hereunder and all rights granted by or on behalf of Service Provider hereunder, Customer shall pay Service Provider the fees set forth in each Schedule or published in the respective Customer Portal. For certain Services, the applicable fees must be queried by API command. All monetary amounts referred to in, and all payments made under, this Agreement (including, but not limited to, in or under each Schedule) shall be in EUR unless stated otherwise.

14.2.

Service Provider is permitted to modify prices at any time by providing an email notice to Customer or by announcing the new fees in its regular newsletters. For fee increases that are not based on a fee increase of Third-Party Providers, Service Provider shall provide a notice period of no less than thirty (30) days. If a Third-Party Provider increases its fees, Service Provider may increase fees accordingly. Service Provider shall endeavor to provide thirty (30) days’ written notice of such increases to Customer or without undue delay in case the Third-Party Provider increases its fees with a notice shorter than thirty-one (31) days. In case of a Third-Party modifying its policies and/or processes that require the Service Provider to fulfill additional requirements that increase the cost base of the Service Provider, the Service Provider may increase its fees to reflect these costs. In case of reduced Third-Party fees the Service Provider may reduce the fees accordingly. In case a Customer does not agree to a price increase in accordance with this section, the Customer is entitled to terminate the Agreement with two weeks’ notice.

14.3.

Except as expressly provided otherwise in a Schedule or Appendix to this Agreement, the Services shall be provided on a pre-payment basis. The Customer shall pre-fund their account through the many Payment Methods made available to the Customer by the Service Provider understanding that some Payment Methods are not credited until funds are fully verified, which in some cases may take up to ten (10) days or more. The Customer is responsible to anticipate the length that each Payment Method may require to verify and make such payments ahead of time to ensure the Service provided to them is not interrupted. Service Provider will have no obligation to provide Services until Service Provider has received actual payment or proof of payment satisfactory to the Service Provider at its sole and arbitrary discretion (including topping off of sufficient funds in the Customer’s account with the Service Provider via a method approved by Service Provider). Except as otherwise expressly agreed in writing the Customer must have sufficient funds in the Customer’s account to cover the payments owed for the particular order. If there are insufficient funds in the Customer’s account at the time an order is made, then the Service Provider reserves the right to deny any additional orders, as well as, suspend the Services without notice. Service Provider will send Customer an invoice each month for the Services rendered and corresponding fees charged thereto in the previous calendar month. The invoices may be sent in PDF format. If the Customer requests invoices via regular mail, then the Service Provider may charge $10 EUR for processing and mailing.

14.4.

In its sole discretion, Service Provider may grant, revoke or modify a credit to Customers’ prepaid account. In case of payment issues, Customer may request an emergency credit, however the Service Provider is under no obligation to grant such a credit.

14.5.

Customer will timely pay to the Service Provider any outstanding invoices sent to the Customer on a monthly basis for the Services rendered and corresponding fees charged via the acceptable method(s) approved by the Service Provider. Without limiting any other term of this Agreement, non-payment of money amounts hereunder will constitute material breach of this Agreement. All transaction costs and currency exchange losses will be covered by the Customer. Any payment under this Agreement that is not paid on or before the date such payment is due shall bear interest at one percent (1%) per month or the maximum rate allowed by law, whichever is less.

14.6.

Except as expressly provided otherwise in a Schedule or Appendix to this Agreement, the default account currency shall be in EUR and fees listed in currencies other than EUR shall be subject to accounting in EUR. Service Provider shall automatically exchange the respective fees into EUR in accordance with the daily exchange rate of the European Central Bank (ECB) at the time of the transaction. The Parties may agree to accounting in USD.

14.7.

Customer automatically forfeits all rights to the Services if there is any charge back by the Customer’s bank or credit card company for payment in connection with the Services, indication of or actual credit card fraud, or other reversal of or invalid payment (“Chargeback”). If there is any Chargeback, then Service Provider may, at its sole reasonable discretion, include reserved domain names in its own portfolio or to release them to third parties or take other action as deemed appropriate by the Service Provider.

14.8.

Except as expressly provided otherwise in this Agreement or an applicable Schedule, fees for requested or performed Services are not refundable. For clarity and by way of example only, fees for Services will not be refunded based on (i) fraudulent or erroneous registrations, (ii) loss of a Domain Name in an arbitration forum or court, (iii) Third-Party Provider decisions, (iv) cancellations by Service Provider or Third-Party Provider due to abuse or illegal use of Domain Names or the Services, (v) cancellation of Services by the Customer, or (vi) failure of any third party to perform or deliver any aspect of the Services. Advance payments for Services that could not be performed will be credited to the Customer’s account and will be refunded upon request. Any transaction costs incurred to process a refund will be covered by the Customer. If this Agreement is suspended or terminated for cause by Service Provider or otherwise terminated by Customer for reasons other than the Service Provider’s material breach, then payments already made for the Services will not be refundable whether in whole or prorated.

14.9.

All fees listed for Services are exclusive of all applicable taxes. Customer will pay all federal, state/provincial, local, sales, use, excise, value-added, consumption and similar taxes assessed on the provision of the Services to Customer. Notwithstanding the foregoing, each Party is responsible to pay any taxes based on its own income, taxes on property it owns or leases, or any business license fees required for its business. Customer further agrees to be responsible for all bank transfer fees.

15.0.

Confidentiality. During the Term of this Agreement, each party (the “Disclosing Party”) may disclose its Confidential Information to the other party (the “Receiving Party”). Each party’s use and disclosure of the Confidential Information of the other party shall be subject to the following terms and conditions:

15.1.

The Receiving Party shall treat as strictly confidential, and use all reasonable efforts to preserve the secrecy and confidentiality of, all Confidential Information of the Disclosing Party, including implementing reasonable physical security measures and operating procedures.

15.2.

The Receiving Party agrees that it will use any Confidential Information of the Disclosing Party solely for the purpose of exercising its right or performing its obligations under this Agreement and for no other purposes whatsoever.

15.3.

The Receiving Party shall make no disclosures whatsoever of any Confidential Information of the Disclosing Party to others; provided, however, that if the Receiving Party is a corporation, partnership, or similar entity, disclosure is permitted to the Receiving Party’s officers, employees, contractors and agents who have a demonstrable need to know such Confidential Information, provided the Receiving Party shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof, and shall require them to acknowledge in writing that they have read, understand, and agree to be individually bound by the confidentiality terms of this Agreement.

15.4.

Receiving Party shall not modify or remove any confidentiality legends or copyright notices showing on any Confidential Information of the Disclosing Party.

15.5.

The Receiving Party agrees not to create any derivative works based on the Confidential Information without the express permission of the Disclosing Party.

15.6.

Upon termination of this Agreement, the Receiving Party shall return all Confidential Information of the Disclosing Party in the possession of the Receiving Party to the Disclosing Party or provide evidence of the complete destruction of said Confidential Information.

15.7.

Notwithstanding the foregoing, this Subsection imposes no obligation upon the parties with respect to information that (i) is disclosed in the absence of a confidentiality agreement and such disclosure was agreed to by the Disclosing Party in writing prior to such disclosure; or (ii) is or has entered the public domain through no fault of the Receiving Party; or (iii) is known by the Receiving Party prior to the time of disclosure; or (iv) is independently developed by the Receiving Party without use of the Confidential Information; or (v) is made generally available by the Disclosing Party without restriction on disclosure.

15.8.

The receiving Party’s duties under this Subsection shall expire five (5) years after the expiration or termination of this Agreement or earlier, upon written agreement of the parties.

16.0.

Intellectual Property Ownership. All right, title and interest in and to the System, the Services and the Confidential Information, including without limitation all intellectual property rights related thereto, shall be owned by Service Provider. All right, title and interest in and to any modifications, improvements, alterations or updates to the System or Services, including without limitation all intellectual property rights related thereto, whether created, conceived or made by Service Provider, Customer or any third party, shall be exclusively owned by Service Provider. Without limiting the foregoing, Service Provider shall own all intellectual property and other proprietary rights in any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Customer concerning the System or Services (“Feedback”), and shall have the unrestricted right to use any and all Feedback for any purposes, commercial or otherwise, without any obligation of compensation or attribution to Customer or any third party.

17.

Representations and Warranties. Customer represents and warrants that its use of the Services and its performance under this Agreement will not violate any applicable law, rule or regulation, and that it has obtained and will maintain all necessary authorizations and consents related to Customer’s use of the Services and the provision of data to Service Provider. Customer also represents and warrants that it is duly organized, validly existing and in good standing, it has full power and authority to execute, deliver and perform this Agreement, and this Agreement, once validly executed by both parties, is a valid and binding obligation of Customer. Customer represents and warrants that statements made relating to any Order are complete and accurate; that the registration, Transfer or Renewal of any Domain Name will not violate or infringe upon third party rights; that the use of any Services will not be for unlawful purposes; and that Customer has used reasonable due diligence to confirm these representations and warranties before issuing an Order. Customer acknowledges that the Internet consists of multiple participating networks that are separately owned and therefore are not subject to the control of Service Provider. Service Provider does not warrant the Services against malfunction or cessation of Internet services by internet service providers or of any of the networks that form the Internet which may make the Services temporarily or permanently unavailable.

18.

Disclaimer; No Warranties; Customer Responsibilities. THE SYSTEM AND THE SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SERVICE PROVIDER MAKES NO (AND HEREBY EXPRESSLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SERVICE PROVIDER DOES NOT REPRESENT OR WARRANT THAT ANY REQUESTED OR REGISTERED DOMAIN NAMES WILL BE AVAILABLE OR ACCEPTED FOR REGISTRATION FROM OR UPHELD BY THE APPLICABLE REGISTRY OPERATOR OR REGISTRAR, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER (AND NOT SERVICE PROVIDER) IS RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICES AND REGISTRATION OF ANY DOMAIN NAMES AND USE OF SUCH DOMAIN NAMES DOES NOT AND WILL NOT INFRINGE UPON OR INTERFERE WITH THE RIGHTS OF A THIRD PARTY OR VIOLATE ANY LAWS THAT MAY BE APPLICABLE. CUSTOMER AGREES NOT TO HOLD RESPONSIBLE SERVICE PROVIDER FOR THE MISUSE OF THE CUSTOMER’S ACCESS DATA BY A THIRD PARTY. SERVICE AND THE SYSTEMS FURNISHED UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS AGAINST INFRINGEMENT, AND THE SERVICE PROVIDER SHALL NOT INDEMNIFY THE CUSTOMER AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER PROPRIETARY RIGHTS. SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OF ANY THIRD-PARTY PRODUCTS, SERVICES OR PERFORMANCE.

19.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, SERVICE PROVIDER, AS WELL AS ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS AND OFFICERS SHALL NOT BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF GOODWILL, CORRUPTION OF DATA AND/OR OTHER INFORMATION, AND/OR ANY DAMAGE RELATING TO THE PROCUREMENT BY THE CUSTOMER OR CUSTOMER-CLIENT OR ANY SUBSTITUTE SERVICES. WHETHER THESE DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNT BEYOND THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY SERVICE DOWNTIMES OR DELAYS DUE TO FORCE MAJEURE. FORCE MAJEURE INCLUDES ANY EVENT BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER INCLUDING, BUT NOT LIMITED TO INSURRECTION OR CIVIL DISORDER, WAR OR MILITARY OPERATIONS, NATIONAL OR LOCAL EMERGENCY, ACTS OR OMISSIONS OF GOVERNMENT OR ANY OTHER COMPETENT AUTHORITY, COMPLIANCE WITH ANY STATUTORY OBLIGATION OR EXECUTIVE ORDER, INDUSTRIAL DISPUTES OF ANY KIND, FIRE, LIGHTNING, EXPLOSION, FLOOD, WEATHER AND ACTS OR OMISSIONS OF PERSONS FOR WHOM NEITHER PARTY IS RESPONSIBLE. SERVICE PROVIDER IS NOT LIABLE FOR ANY ERRORS OR OMISSIONS OR OTHER ACTIONS BY REGISTRY SERVICE PROVIDERS OR REGISTRY OPERATORS RELATED TO DOMAIN NAME REGISTRATIONS, TRANSFERS OR RENEWALS. SERVICE PROVIDER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ERRORS, MISHANDLINGS, DAMAGES OR OMISSIONS CAUSED BY CUSTOMER, OR ANY PERFORMANCE ISSUES: (I) CAUSED BY FACTORS OUTSIDE SERVICE PROVIDER’S REASONABLE CONTROL, OR (II) THAT RESULTED FROM CUSTOMER’S OR THIRD-PARTY EQUIPMENT OUTSIDE THE REASONABLE CONTROL OF SERVICE PROVIDER’S. NOR SHALL SERVICE PROVIDER BE LIABLE FOR ANY CUSTOMER-CLIENTS NOT SOLICITED BY SERVICE PROVIDER WHO ELECTS TO BECOME A DIRECT CUSTOMER OF SERVICE PROVIDER. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF DAMAGES OR CLAIMS SET FORTH IN THIS SECTION, THE LIABILITY, DAMAGES AND CLAIMS ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAW. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT THE LIABILITY OF EITHER PARTY FOR FRAUDULENT MISREPRESENTATION ARISING AS A RESULT OF GROSS NEGLIGENCE OF THAT PARTY, ITS OFFICERS, EMPLOYEES, AGENTS AND/OR SUB-CONTRACTORS.

20.

Indemnification. Customer agrees to hold harmless, indemnify and defend Service Provider (including its parent companies, subsidiaries, affiliates, officers, shareholders, directors, employees, affiliates and subcontractors) (collectively, “Indemnitees”) at the Customer’s sole cost with counsel reasonably satisfactory to the Service Provider from and against any and all claims, actions, demands, assessments, liabilities, damages, fines, penalties, costs and expenses, including reasonable legal fees and expenses, arising from or resulting from Customer’s use of the Services, Customer’s registration (or failure to register or renew) or use of any particular Domain Name, or Customer’s breach of the Agreement or other failure to comply with the terms of this Agreement or Third-Party Policies or laws, regulations or rules, any representation or warranty in connection with the Service or this Agreement made by the Customer, or any gross negligence or willful misconduct of the customer, or any chargeback, or Customer-Clients or other parties that submit Orders for Services through the Customer, or disputes involving third-party intellectual property rights and the processing of Transfer requests against the registered owner’s will. This indemnification shall survive the termination of the Agreement and is in addition to any indemnification required under the law or any Third-Party Policy.

21.

Modification. Due to the constantly changing nature of the Internet, the domain name system and its governing policies, Service Provider reserves the right to amend or modify the Agreement and its terms and conditions, in whole and in part, at any time, effective upon notice to Customer, if, in Service Provider’s reasonable judgment, such amendment or modification is required by ICANN, applicable local law or Registry Operators. Within thirty (30) days of receiving such a notice, Customer may immediately terminate the Agreement by providing a separate written notice to that effect to Service Provider. The continued use of the Services by the Customer beyond the thirty (30) day period shall constitute Customer’s acceptance of, and agreement to be bound by, the Agreement, its modifications and the relevant policies.

22.

Sunsetting of services. Service Provider may from time to time in its own discretion determine to sunset services provided under this Agreement. In such an event, Service Provider will endeavor to assist Customer with the transition of the service to a different provider. When sunsetting a service, Service Provider will notify the Customer accordingly with reasonably sufficient notice. Within thirty (30) days of receiving such a notice, Customer may immediately terminate the Agreement by providing a separate written notice to that effect to Service Provider.

23.

Severability; No Waiver. If any provision of the Agreement shall be found to be unenforceable and/or invalid, such unenforceability and/or invalidity shall not render the Agreement as a whole unenforceable or invalid; rather, the entire Agreement will be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each party will be construed and enforced accordingly. Failure by either party to enforce any provision of the Agreement shall not be deemed a waiver for future enforcement of said provision, and no waiver by a Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Customer waives all rights to enforcement of any claims not asserted in court within two calendar years of the occurrence of the subject matter giving rise to such claims. This Paragraph shall survive the termination of the Agreement.

24.

Jurisdiction and governing law. This Agreement, including all rights and obligations arising from and all actions complemented by the Agreement, shall be governed by the laws applicable in the state of Saarland, Germany without regard to its conflicts of laws rules. The Agreement shall be deemed wholly entered into and performed in Germany. All disputes arising out of or related to this Agreement shall be brought exclusively in the state or federal courts of Saarland/Germany, and the parties hereby agree to the exclusive jurisdiction and venue of such courts for the resolution of any such disputes. The Parties expressly agree to exclude: (i) the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement and the performance of the Parties contemplated in this Agreement, to the extent that such Convention might otherwise be applicable; and (ii) the Uniform Computer Information Transactions Act (as it may be adopted, titled and amended from time to time).

25.

Publicity; Customer reference. Neither Party shall use the name of the other party or any variant thereof in any advertising, publicity, or other publication without the prior written permission of the other Party.

26.

No Further terms. This Agreement, including all appendices, schedules, documentation and all terms and conditions and agreements referred to in the Agreement shall be the complete agreement between the Parties with respect to the subject matter of this Agreement and the terms contained herein shall not be altered, supplemented, modified, varied, revised or amended, except as agreed in writing by both Parties. The provisions of this Agreement supersede all prior oral or written quotations, communications, agreements and understandings of the Parties with respect to the subject matter of this Agreement. Neither this Agreement nor any exhibit may be modified or amended except by the mutual written agreement of authorized representatives of each Party.

27.

Relationship of the Parties. The relationship between the parties is that of independent contractors. Except with respect to any agency relationship expressly recognized in a Schedule, (i) nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and (ii) neither party shall have authority to contract for or bind the other party in any manner whatsoever.

28.

Records. Service Provider may maintain records of all the Services provided hereunder. If there is any inconsistency or conflict between Service Provider’s records and that of Customer or any other party (including, but not limited to, Customer-Clients or clients of Customer-Clients), then Service Provider’s records will be deemed the accurate and effective records.

29.

Notice. All notices between the parties shall be in writing. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered if delivered in person or by email or facsimile if sent to the address, facsimile number or email address as set forth within the customer account for the Customer and below for the Service Provider or if by overnight delivery the next day from the day delivered to the address as set forth or to the address or number if the party has given a notice of a change of address or individual representation in writing as provided for herein:

If to Customer:



(contact details as entered into the customer account and updated from time to time)

If to Service Provider:

Key-Systems GmbH
Kaiserstraße 172-174
66386 St. Ingbert
Germany



Tel.: +49 (0) 68 94 – 93 96 850
Fax: +49 (0) 68 94 – 93 96 851
[email protected] (not a support email address)

30.

Order of Precedence. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedules and Appendices, as well as and Service Provider Policies, the terms and provisions of the Agreement shall govern and control over any conflicting provisions in the Schedules, Policies and Appendices unless otherwise explicitly agreed in writing. In case of doubt or contradictions between the terms of these agreements, the following order of precedence shall prevail:

30.1.

This Wholesale Master Agreement

30.2.

The Reseller Schedule to this Agreement

30.3.

Any other Schedules to this Agreement in order of their version date

30.4.

Any Appendices or Exhibits to this Agreement

30.5.

Any Appendices or Exhibits to any Schedules to this Agreement

30.6.

The Anti-Abuse Policy

30.7.

The General Terms and Conditions of the Service Provider

30.8.

Third-Party Policies

31.

Assignment. Customer may not assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of Service Provider, whose consent shall not be unreasonably withheld or delayed. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. Service Provider may assign, transfer or delegate any or all of its rights or obligations under this Agreement to its affiliates in its sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

32.

Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and each of their respective successors and permitted assigns, and nothing herein shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under this Agreement, except for Customer’s obligations to third parties as stated in this Agreement.

33.

Cumulative Remedies. Except as provided elsewhere in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either party by law, in equity or otherwise.

34.

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

35.

Survival of Rights. In the event of termination of this Agreement for any reason all of the rights of each Party that by their terms are intended to survive termination and all provisions of this Agreement with respect to the remedies of each Party, and all provisions expressly stated to survive, shall survive and shall continue to be enforceable.

1.

Reseller Activities. Subject to the Customers’ compliance with the terms and conditions of this Schedule and acceptance of all applicable Schedules, Appendices and Third-Party Policies, Service Provider grants permission to the Customer to engage in Reseller Activity to provide services to Customer-Clients.

2.

No Consumer. Customer confirms it is an established legal entity, entrepreneur, trader, freelancer or public institutions utilizing the Service for their business, trade, craft or profession and that consumer protection laws are not applicable to it.

3.

Business dealings with Customer-Clients.

3.1.

Prior to engaging in Reseller Activity or submitting orders related to Reseller Activity for a Customer-Client, Customer will require said Customer-Client to agree to comply with the terms and conditions of the Agreement (including all Schedules and other terms or conditions referenced therein and attached thereto) and all Third-Party Policies by incorporating said terms and conditions and Third-Party Policies into its own agreements.

3.2.

Customer represents and warrants that it has the authority to legally bind all Customer-Clients to the Terms and all applicable Third-Party Policies, and that Customer will enforce all Terms and Third-Party Policies against its Customer-Clients.

3.3.

Customer shall ensure that the Customer-Client has confirmed to have read, understood and agreed to the Terms and all applicable Third-Party Policies before requesting a Service on behalf of a Customer-Client.

3.4.

Customer shall be solely responsible for provision or customer service, billing and technical support to Customer-Clients. Customer agrees that Service Provider has no contractual obligation to provide support or assistance to Customer-Client except for such obligations arising from Third-Party Policies and any direct agreements between Customer-Clients and the Service Provider. Customer remains Service Provider’s only contracting party for the receipt of Services under the Agreement.

3.5.

Customer must notify his Customer-Clients of all upcoming Service renewals and/or expiration dates of Services used by the Customer-Client expiry and will facilitate the renewal of said Services upon request by a Customer-Client.

3.6.

Customer is responsible and liable to Service Provider for all fees for operations or Services requested from Service Provider or through access to the System (without regard to Customer’s ability to collect fees owed to Customer by Customer-Clients).

3.7.

Customer shall forward important notifications of Service Provider regarding the Services to Customer-Clients. The Service Provider reserves the right to contact any customers of Customer and/or Customer-Clients with notices required by Third-Party Policies and in case the Customer or any Customer-Client fails to respond to queries of Service Provider or appears to have discontinued its business activities.

3.8.

Customer agrees that the Service Provider may provide Services directly to the Customer-Client where this is necessary to ensure that the Service Provider meets its obligations towards Third-Party Providers and Customer has failed to provide required services to the Customer-Client despite a request to provide a Service from the Service Provider. In case Customer fails to provide support services to a Customer-Client that are required by Third-Party Policies despite reasonable request from Service Provider, and Service Provider is required to provide said support services instead of Customer, Service Provider may charge a service fee to Customer for providing the required support services to the Registrant.

3.9.

In the event Customer learns that a Customer-Client is causing Customer to be in breach of any of the provisions of the Agreement or any Schedules thereto, Customer shall take all necessary steps to enforce the terms of the Agreement (including Third-Party Policies and the Anti-Abuse Policy) against such a Customer-Client so as to cure and prevent further instances of non-compliance. Customer shall investigate any report of abusive use of the Service received from Service Provider or any third party and take all necessary action to stop any abusive behavior so identified as well as provide feedback to Service Provider on the actions taken.

3.10.

To the extent permissible under applicable law and notwithstanding any applicable data retention requirements, Customer shall during the Term of the Agreement and for two years thereafter create and maintain sufficient documentary records of its business dealings with the Customer-Clients with respect to the Services under the Agreement. These records shall at a minimum include electronic or paper records or log files of all written and electronic communications with regard to the application for, confirmation or modification of or termination of the Services, all related correspondence with Customer-Clients, including evidence of the acceptance of the Terms and contractual obligations by the Customer-Clients. Customer shall provide these records to Service Provider for inspection and creation of copies upon reasonable request.

3.11.

Where Service Provider providers Customer with the means to manage Customer-Client accounts as sub-accounts of Customer in the System, Customer is solely responsible for setting fees and ensuring Customer-Clients account balances are kept up to date. Service Provider shall not process transactions in sub-accounts where ne fees are set for the relevant service or where the sub-account lacks sufficient funding or credit.

4.

Domain Name Registration, Management & Related Services.

4.1.

Reseller Activity relating to the provision of Domain Name Registration and Management Services is subject to additional terms and conditions as detailed in the R&M Schedule and in this section 4. Customer will ensure that contained within the R&M Schedule to the MSA applicable to Customer and/or Registrants shall also apply to Customer-Clients.

4.2.

Customer shall implement the applicable Third-Party Policies for TLDs activated in its account in its own registration policies and shall contractually engage its Customer-Clients and Registrants to include these Terms and Policies in their own terms and policies accordingly, if applicable. Customer warrants that the Terms and the Third-Party Policies are made binding upon the Registrants and accepts full liability for the enforceability of said Terms and Third-Party Policies.

4.3.

Customer shall require all Registrants to enter into a paper or electronic Registration Agreement with Service Provider and to agree to the terms contained in the applicable Third-Party Policies, such as Registry-Registrant Agreements, Dispute Policies such as UDRP and URS, indemnification clauses, consent for processing of personal information and other Third-Party Policies. Customer shall document and maintain the respective confirmations of approval of these terms by the Registrant for provision to Service Provider upon reasonable request. Customer shall require all Registrants to accept that these terms may be changed without their approval at any time. Upon inquiry by the Registrant, Customer shall identify Service Provider as sponsoring Registrar of their Registration or provide other means for identifying the sponsoring registrar.

4.4.

Customer will register Domain names in the names of the Registrants only, unless expressly agreed otherwise with the Registrant.

4.5.

Customer will not activate a Domain Name in the DNS unless and until Customer is satisfied that payment of the registration fee is reasonably assured.

4.6.

Prior to requesting a termination of a Domain Name Registration or a Change of Ownership, the Reseller must ensure the authorization by the third party to make this request. Transfer requests or requests for Transfer Codes by the third party must be treated in accordance with the applicable Third-Party Policies. The Reseller undertakes to collect and maintain for as long as legally possible all suitable evidence and required documentation as proof of the authorization for any actions performed on behalf of the third party. The Reseller commits to submit these records to the Service Provider upon reasonable request. Customer shall provide the Registrant with the authorization codes necessary for Domain Name transfers within 5 days of any request by the Registrant to obtain such codes.

4.7.

Customer is committed to inform Registrants about Customers’ Domain Name deletion and renewal procedures and time-frames (including renewal fees, restore fees and transfer fees) at the time of Registration as well as on its websites. Customer shall provide notice to Registrants of the expiration dates of their Domain Name Registrations by providing written or email notice one month and one week prior to the expiration date, as well as within 5 days after the expiration date for Domain Names in TLDs with a renew grace period. This shall not apply if the Registrant has already requested the Renewal of the Domain Name.

4.8.

Customer warrants that each Registrant has agreed that all acts and omissions of the Customer shall be considered as their own acts and omissions. Customer further warrants that each Registrant has explicitly authorized Customer and the Service Provider to manage Domain Names on their behalf. The Service Provider is at any time authorized to execute transactions deemed necessary for the management of a Domain Name including updating Registrant Information, initiating Transfers and requesting Renewals. Customer ensures that the Registrant agrees that the Service Provider and the Customer shall each be considered designated agents regarding the management of a Domain Name with regard to Third-Party Policies or policies of other parties involved in the registration process.

4.9.

Customer shall ensure that Customer-Clients agree to indemnify and hold harmless ICANN and the Registry as well as their directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of or related to the Customer-Client’s Domain Name Registration.

4.10.

Customer agrees to publish on its website(s) and/or provide a link to the ICANN Registrants’ Benefits and Responsibilities Specification, currently located at: https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#Registrant.

4.11.

Customer is prohibited from using any ICANN or Registry logo or graphic (unless permission of the Registry has been previously obtained in writing) or from holding itself out to be accredited by ICANN or any Registry (unless the Customer is itself accredited by ICANN or that Registry).

4.12.

Customer shall not represent to any actual or potential Registrant that Customer enjoys access to any of the Registry’s systems that is superior to that of any other party accredited by the Registry.

4.13.

Customer shall further ensure and document the explicit consent of the Registrant to the processing of the Registrant Information by Service Provider and/or the Registry. By providing personal information of a third party, the Reseller confirms that he has informed the third party about the processing and use of data in the context of the Terms and that the third party has expressly agreed with this processing and use and is aware of these terms.

5.

Additional Liabilities and indemnification.

5.1.

The Customer accepts full liability for any harm caused by wrongful use of the System or Services by Customer-Clients. Any act or omission of a Customer-Client that would constitute a breach of this Agreement if performed by Customer, shall constitute a breach of this Agreement by Customer unless Customer takes prompt action to remedy the breach.

5.2.

Customer will indemnify, defend and hold harmless Service Provider and its parent and affiliated companies (and each of their officers, employees, directors and agents) from and against all losses, harms, claims, damages, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by, assessed or brought against Service Provider as a result of or related in any way to Customer’s Reseller Activity. Customer shall not represent or imply to any Customer-Client that Customer has any authority to act on behalf of or to represent Service Provider.

5.3.

ll obligations arising from Third-Party Policies applicable to Service Provider also apply to Customer. Customer expressly agrees to comply with any obligations of the Service Provider included in the Third-Party Policies and to hold harmless and indemnify Service Provider to the full extent of the damage caused by its failure to comply with the obligations arising from the Third-Party Policies.

1.

Domain Name Registration and Management Services.

1.1

R&M Services

1.1.1

Subject to the terms and conditions of the Agreement, Service Provider will provide Domain Name Registration and Management services (“R&M Services”) to Customer. R&M Services include processing of Domain Name Registration, Transfer, Renewal, Restore and modification orders, as well as the ability to view Customer’s Domain Names with the Customer Portal and perform basic actions on those Domain Names (such as nameserver and mx record changes).

1.1.2

Each TLD has specific Third-Party Policies and processes that must be reviewed and accepted by the Customer before the Registrations or Transfers in the TLD are requested. The Third-Party Policies shall be made available on the website of Service Provider or in the Implementation Wiki and contain links to the applicable Third-Party Policies for each TLD. All obligations of Service Provider towards Registrants contained in the Third-Party Policies shall be considered obligations of Customer towards Service Provider and Customer accepts full legal responsibility and liability for its compliance with the applicable Third-Party Policies.

1.2.

Reseller Activity

1.2.1

Customer is prohibited from engaging in Reseller Activity with regard to domain names unless explicitly agreed with the Service provider in writing.

1.2.2

Agreement to the Reseller Schedule to the Master Service Agreement by both Parties shall be considered sufficient agreement to engage in Reseller Activity. Customer accepts that the terms of the Reseller Schedule shall apply to all Reseller Activity.

1.3.

Registrant Information

1.3.1

Registrant Information. Service Provider is required by Third-Party Policies to collect and store complete, accurate and current information about the Registrant of Domain Names (“Registrant Information”) as part of the registration and transfer processes. The Registrant Information includes, but is not limited to the full personal or company name, registration and tax numbers, postal address, email address, telephone number; IP addresses of the primary and secondary DNS servers; the names of these servers; the full name, postal address, email address, telephone number and fax number of the administrative, technical and billing contacts (where required). Additional information and/or documentation may be required for the registration of Domain Names in special circumstances or in accordance with Third-Party Policies and shall also constitute part of the Registrant Information.

1.3.2

Accuracy of Registrant Information. Customer shall ensure that the Registrant understands and agrees that the failure to (i) provide complete, current and accurate Registrant Information, (ii) update outdated Registrant Information or (iii) respond to inquiries of Service Provider concerning the accuracy of the Registrant Information within 15 days shall constitute a breach of the Registration Agreement and may lead to the deletion of a Domain Name. Customer will provide the Registrant Information of the Registrant to the Service Provider upon requesting a Registration or Transfer of a Domain Name. Customer shall take all reasonable steps to correct inaccurate Registrant Information in the event Customer learns the Registrant Information is inaccurate or outdated. Customer will further ensure that the Registrant can update and correct the Registrant Information at all times. Service Provider shall use the Registrant Information only for the purpose of the registration and maintenance of Domain Names as required by Third-Party Policies or applicable law. Customer shall promptly notify Service Provider of any changes to the Registrant Information, provide all documents pertaining to Registrant Information requested by Service Provider in a timely fashion and respond promptly to Service Provider’s inquiries regarding the accuracy of the provided information and cause its Customer Clients to be bound to equivalent terms.

1.3.3.

Verification and Documentation. Upon reasonable request of Service Provider, Customer shall verify regarding the accuracy of the Registrant Information. Where required by Third-Party Policies and/or upon reasonable request by Service Provider, Customer is required to obtain from the Registrant and maintain for the life-time of the Registration supplementary documentary evidence regarding the accuracy of the Registrant Information and to provide such evidence to the Service Provider. Failure to provide such evidence upon reasonable request shall constitute a breach of the registration agreement and may result in the suspension or deletion of the Domain Name.

1.3.4.

Transfer and Disclosure. The collection, processing and transfer of the Registrant Information to Third-Party Providers involved in the provision of the Services is necessary for the fulfillment of the Service. Service Provider may further disclose Registrant Information to other third parties that legitimately request the provision of Registrant Information where permitted under GDPR (or equivalent data privacy legislation) or where required by law, regulation or Third-Party Policy. Customer will ensure the Registrant understands and agrees that the Registrant Information may be published in an interactive registration database (“RDS Database”) depending on the Third-Party Policies applicable to the Domain Name and may also be made available to Third Parties either through or upon reasonable and legitimate request.

1.3.5.

Consent. In addition to informing the Registrant about the legitimate purposes for the collection and processing of the Registrant Information, Customer is required to obtain valid, free and informed consent of the Registrant for the collection, processing and publication of Registrant Information by Service Provider and, if applicable, Third-Party Providers.

1.3.6.

Domain Name Ownership. Customer understands and agrees that the Registrant of a Domain Name as reflected in the Registrant Information shall be considered the legal title holder of the Domain Name registration. Except for the use of RDS privacy services or Local Presence services explicitly requested by the Registrant, it is the responsibility of the Customer to ensure that the Registrant of the Domain Name is recorded as the legal title holder of the Domain Name in the Registrant Information and that no action by the Customer diminishes, terminates, or challenges such rights. In this respect, the Customer shall not abuse or misuse, whether intentionally or unintentionally, any administrative abilities in any way that has the effect of diminishing, terminating, or challenging the title of the Registrant to the Domain Name.

1.3.7.

Indemnification by Registrant. The Customer agrees to indemnify and hold harmless the the Service Provider, ICANN, Registry Operator and their directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of or related to Domain Name registrations in the name of the Customer or its affiliate entities.

1.3.8.

Data Protection. Registrant data processing will be performed in accordance with applicable data protection laws and the Data Processing Agreement between Service Provider and Customer.

1.3.9.

Other uses. Except as otherwise permitted by Customer, Service Provider will utilize the Customer data only to fulfill orders for the registration and management of the Domain Names in the Account of Customer and provide other Services ordered by Customer.

1.4.

Domain Name Services.

1.4.1.

Service Provider’s Role. In the procurement, Registration, and administration of Domain Name Registrations, Service Provider acts only as a mediator between the Customer and the other parties involved in the Registration process, including intermediary registrars, Registry Operators and the Registrant. In this regard, submission of an Order or individual Application does not guarantee registration or continued existence of the registration of a Domain Name. The Service Provider disclaims any liability for any failure to register a Domain Name or for a Domain Name to remain registered for any reason. The cardinal duty of the service provider with regards to Domain Name Registration and Renewal orders is to submit the registration and renewal request to the Registry. Any services offered with regard to the management of a Domain Name in the System are mere ancillary services to the act of requesting the Registration or Renewal of a Domain Name at the Registry.

1.4.2.

Registrations. Domain Name Registration requests are not final until Service Provider has delivered the Registration request to the applicable Registry Operator, the Registry Operator has confirmed the successful Registration request to Service Provider and the Service Provider has added the Domain Name to the account of the Customer as an active Domain Name. Registrations shall be for fixed periods only and from 1 to 10 year registrations dependent on the respective Top-Level-Domain (TLD). Domain Names Orders are registered on a “first come, first served” basis by the respective Registry Operator and that Service Provider is not liable for any Domain Name not registered. The Customer acknowledges that the Service Provider cannot guarantee the success of a Registration even if a Domain Name is shown as available for registration. At its sole discretion, Service Provider may elect to accept, prioritize or reject any request for Registration of a Domain Name for any reason.

1.4.3.

Transfers. Customer agrees to request Transfers of Domain Names only if Customer has obtained the explicit permission of the Registrant to initiate the Transfer. Transfers of a Domain Name may be prohibited by Third-Party Policies within 60 days of its initial Registration or a prior Transfer. Transfers are further prohibited in certain TLDs after a change to the ownership of the Domain Name has occurred unless the previous Registrant has agreed to opt out of this lock prior to the change. Customer shall only deny transfer requests by a Registrant where expressly permitted by applicable Third-Party Policies. Service Provider is permitted to return any Domain Name to the previous registrar if that registrar alleges the Transfer occurred without explicit permission of the Registrant of said Domain Name.

1.4.4.

Renewals. Provided that Customer has sufficient funds and/or credit in Customer’s account with Service Provider all Domain Name registrations will be automatically renewed (“Autorenew”) unless the respective domain or the default renewal mode has been set by the Customer or Registrant to either “Autoexpire”, “Autodelete” or if the domain is deleted prior to the Finalization Period (defined as the specified number of calendar days until the system will finalize the pending renewal). The Finalization period is equivalent to an “Autorenew Grace period” (and varies depending on TLD as described in the policies of the Registry Operators for each TLD and the implementation details made available by the Service Provider). Service Provider may refuse the to process the renewal of a Domain in case of insufficient funds or credit.. Service Provider will provide access to expiration lists in the Customer Portal to inform Customer about upcoming Renewals. Customer acknowledges and agrees that Renewal of any Domain Name is not guaranteed and may not be possible. Some Domain Name transactions may require further documentation, translations, or other Customer action.

1.4.5.

Deletions. Customer may request a deletion of a Domain Name at any time. Customer must ensure the Registrant has agreed to or requested the deletion. In case the Customer wishes to delete a domain for non-payment by the registrant, the Customer should use an expiration command. Service Provider will provide no refunds for unused portions of the registration period. Service Provider may decline to process a deletion request due to ongoing UDRP procedures, court orders, the use of the Domain Name as DNS nameserver hosts and other circumstances provided for in Third-Party Policies or legal requirements. In such cases, Customer shall remain liable to pay for the applicable renewal fees.

1.4.6.

Restores. In certain TLDs and circumstances, deleted or utilized Domain Names may be restored for a limited time at the explicit request of the Registrant. For all Restores, a Restore Fee shall apply. The Restore fee shall not include the Renewal fees for the subsequent registration term.

1.4.7.

Change of Registrant. The Customer must obtain consent from the Registrant or administrative contact (other than the Customer) in written or electronic form prior to making any material change to (i) the Registration Information, (ii) administrative contact, or (iii) name server information (“DNS”) for any Domain Name procured by the Customer and registered through the Service Provider. The Customer will be solely liable at all times, and the Service Provider will not be liable whatsoever, for any change to the Registration Information, administrative contact, or DNS made by or through the Customer against the will of the Registrant. If there is any conflict as to the authority to make any such change, then the Service Provider will have the right to make a determination, at its sole discretion, as to the correct Registrant Information, administrative contact, or DNS, and the Customer agrees to cooperate with and be bound by such determination. If the Service Provider determines that a change was not authorized by the Registrant, then the Service Provider will have the right to revert the change to reflect the original Registration Information.

1.5.

Fees. Unless agreed to otherwise in writing by Service Provider, fees for R&M Services will be listed in the Customer Portal. Fees for non-standard Domain Name Registrations such as premium Domain Names will not be listed and instead be provided in response to API queries. Domain Name fees may vary by TLD, Domain Name and operation. The terms regarding the adjustment of fees contained in the MSA shall apply.

1.6.

Dispute Resolution. Customer agrees that if any registration is challenged by a third party, Registrant shall be subject to the provisions specified in the applicable Domain Name dispute policy, including the Third-Party Policies. If the Service Provider is notified that a complaint or legal action has been filed with a judicial or administrative body regarding any Domain Name registered through the Services, then the Customer agrees not to make any changes to the Domain Name record without the Service Provider’s prior written approval. Customer further agrees that the Service Provider may, at its sole discretion, place a hold or lock on the Domain Name, otherwise prevent Customer from making any changes to the registration, or transfer control over the Domain Name to the applicable Registry Operator until (a) Service Provider is directed to do so by the judicial or administrative body, or (b) the dispute has been settled and the Service Provider receives satisfactory documentation evidencing the settlement.

1.7.

Post-expiration handling. Unless otherwise agreed, when a Domain Name Registration expires without Renewal, is deleted by the Registrant, if Renewal fees are not received in time prior to expiration, if Transfer Fees are not received after successful completion of a Transfer or if the Registration Agreement is otherwise terminated, or in case of a charge-back of such fees, Service Provider is authorized to: (1) suspend the Domain Name at its own discretion or to change the DNS entries to DNS entries designated by Service Provider, including directing them to parking pages or commercial search engines that may display advertisements (“suspension”), (2) return the Domain Name to the Registry Operator for the purpose of deletion or continued management by the Registry Operator (“deletion”), and/or (3) dispose, auction, transfer to third parties or take over the Domain Name in his own continuance (“utilization”). Customer agrees and shall require the Registrant to agree as part of the Registration Agreement that the termination, non-payment or non-renewal of the Registration shall constitute consent to the actions described above including the Renewal or Transfer of the Registration and the update of the Registration Information to a different Registrant to the extent necessary for the purpose of the actions above. Service Provider will begin to undertake the actions in accordance with section 1.7 no earlier than: (a) five (5) days after the expiration of Domain Names with a Renewal Grace Period, or (b) immediately prior to the expiration of Domain Names without such a period. Unless otherwise agreed in writing or otherwise permitted by Service Provider, no renewal shall be possible 30 days after the expiration of the registration and the registrant is deemed to have lost all rights in the Domain Name at this time.

1.8.

Abusive Use of Registrations. A registered Domain Name may be temporarily or permanently suspended or deleted in case the Registration or its use violates the terms of the Registration Agreement, the Anti-Abuse Policy, any Third-Party Terms or applicable law (“Abusive Use”). The same applies where Abusive Use has been demonstrated to the Service Provider in a plausible manner or in cases where the Customer does not act upon reasonable requests of the Service Provider (a) to investigate Abusive Use, (b) to take appropriate action and © to report on the actions taken to prevent further Abusive Use of a Domain Name. After a suspension for Abusive Use, the Service Provider may in its sole discretion permit or deny the Transfer of a Domain Name to another Registrar. Service Provider will endeavor to give Customer reasonable notice prior to a suspension or deletion of a Domain Name for Abusive Use. The Customer may request a reactivation of a deactivated Domain Name and Service Provider may deny or accept such reactivation requests at its sole discretion. Customer agrees to pay the reactivation fees for all requests accepted and confirmed by the Service Provider. The reactivation fee does not include the fees for the Renewal of the Domain Name Registration that may be applicable as well. Customer agrees to investigate reports of Abusive Use, to take appropriate action to prevent further Abusive Use and to report to Service Provider any actions taken.

1.9.

Internationalized Domain Names (IDN). Customer understands and agrees that Internationalized Domain Names i.e. Domain Names using non-ASCII characters may not be concurrent with conventional Domain Names and that due to the requirement for further technical innovation such Domain Names may not be functional for all or any intended uses of the Registrant.

1.10.

FURTHER DISCLAIMER AND EXCLUSION OF WARRANTIES. SERVICE PROVIDER DOES NOT REPRESENT OR WARRANT THAT ANY REQUESTED OR REGISTERED DOMAIN NAMES WILL BE AVAILABLE OR ACCEPTED FOR REGISTRATION FROM OR UPHELD BY THE APPLICABLE REGISTRY OPERATOR OR REGISTRAR, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER (AND NOT SERVICE PROVIDER) IS RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICES AND REGISTRATION OF ANY DOMAIN NAMES AND USE OF SUCH DOMAIN NAMES DOES NOT AND WILL NOT INFRINGE UPON OR INTERFERE WITH THE RIGHTS OF A THIRD PARTY OR VIOLATE ANY LAWS THAT MAY BE APPLICABLE. CUSTOMER AGREES NOT TO HOLD RESPONSIBLE SERVICE PROVIDER FOR ANY SUSPENSION, LOSS, USE, MODIFICATION, UNAVAILABILITY, ACCESS DELAYS OR ACCESS INTERRUPTIONS, FAILURE TO REGISTER OR TRANSFER A REQUESTED DOMAIN OR OTHER EVENTS OUTSIDE SERVICE PROVIDER’S OR ANY REGISTRY OPERATOR’S OR REGISTRAR’S REASONABLE CONTROL REGARDING THE REGISTERED DOMAIN NAMES OR SUBSCRIBED SERVICES.

2.

Related Services

2.1.

DNS Services. Service Provider may upon request provide DNS Services for Domain Names through a Customer Portal and/or API. DNS. The terms and conditions for DNS Services are regulated by a Schedule to this agreement

2.2.

RDS Privacy.

2.2.1.

Privacy Services. In certain TLDs, RDS proxy or privacy services (“Privacy Service“) may be available for use with Domain Name Registrations to protect the Registrants’ Registration Information from public disclosure in RDS outputs by partially or fully substituting alternate data provided by Service Provider and/or its Third-Party Providers (“Privacy Provider”). The terms of each Privacy Provider are published in the customer portal. For each Order of Privacy Services, Customer will ensure and document that the Registrant accepts the terms of the Privacy Provider and grant all applicable authority as required under the applicable Third-Party Policies. Privacy Services shall be provided for one-year terms and automatically renew for additional one-year terms on the renewal date of the Domain Name registration unless the service is deactivated prior to the renewal date.

2.2.2.

Termination and legitimate Disclosure. Privacy Provider may in its sole discretion refuse to provide Privacy Services for any Domain Name and further reserves the right to remove its name from the registration records and replace it with the data provided by the Customer without notice when required by Third-Party Policies, to prevent legal liability, at the request of the appropriate authorities or in cases where questionable use of the Domain Name is alleged. Reasonable attempts will be made to inform Customer prior to such changes. Privacy Provider and Service Provider further reserve the right disclose Registrant Information upon reasonable and legitimate third-party request and without prior notice to Customer.

2.2.3.

Fees. All Privacy Services fees will be the then-current fees listed in the Customer Portal at the time of Order submission.

2.2.4.

Customers’ Privacy Services. Customer will ensure that the Registration Information provided by the Registrant of any Registration using a Privacy Service offered or made available by Customer will be deposited with Service Provider or held in escrow and can be accessed by Service Provider upon reasonable request. The escrow agreement will provide that Registration Information will be released to Service Provider in the event Customer breaches the Agreement or files for bankruptcy and such breach or bankruptcy is harmful to consumers or the public interest. Customer shall comply with any ICANN-adopted Specification or Policy that establishes a program for accreditation of individuals or entities who provide Privacy Services (a Proxy Accreditation Program). For any Privacy Service offered by Customer, Customer shall publish on its website: the terms and conditions of the Privacy Service (including pricing); a point of contact for third parties wishing to report abuse; its business contact information; its terms of service and abuse report handling procedures.

2.3.

Local Presence/Trustee Services.

2.3.1.

Local Presence/Trustee Services. Service Provider may offer local presence or trustee services (“LP Services“) through affiliated or non-affiliated Third-Party Providers (“LP Provider”) to enable Registrants to register domains in TLDs with local presence requirements (where such services are permitted). For each Order of LP Services, Customer will ensure and document that the Registrant accepts the terms of the LP Provider and grant all applicable authority as required under the applicable Third-Party Policies. LP Services automatically renew for additional one-year terms on the renewal date of the Domain Name registration unless the service is deactivated prior to the renewal date.

2.3.2.

Domain Ownership. Where the LP Provider is registered as the owner of a Domain Name in the public record it may act with all rights and responsibility associated with this role, including deactivating, deleting or transferring a Domain Name if necessary to avoid legal harm for itself or third parties.

2.3.3.

Termination and Disclosure. LP Provider may in its sole discretion refuse to provide LP Services for any Domain Name and further reserves the right to remove its name without notice from the registration records and replace it with the data provided by the Customer when required by Third Party Policies, at the request of the appropriate authorities or in cases where questionable use of the Domain Name is alleged. Reasonable attempts will be made to inform Customer prior to such changes. LP Provider and Service Provider will disclose Registrant Information upon reasonable and legitimate third-party request.

2.3.4.

Fees. All LP Services fees will be the then-current fees listed in the Customer Portal at the time of Order submission.

2.4.

Drop-catch, Backorder and Pre-Order Services.

2.4.1.

Drop-catch and Backorder. Drop-catch and Backorder services (“Drop-Catch Services“) allow the Customer to attempt to automatically register Domain Names that have been “dropped” or not renewed by the previous Registrant or that become otherwise available. With Drop-Catch Services, Service Provider will submit backorders for the Registration of Domain Names identified by Customer that are currently registered to third parties so as to attempt to register those Domain Names when they become available through the Registry Operator.

2.4.2.

Preorder. Service Provider may offer preorders of Domain Names that are not yet available for Registration. For technical reasons Service Provider may accept multiple preorders for the same Domain Name. The Customer acknowledges that preorders are offered without guarantee of successful completion of the Registration regardless of whether Service Provider ultimately succeeds in registering the domain name. Service Provider is free in the decision how to allocate preordered domain names among its customers. Unless otherwise stated, Domain Name preorder fees are fully refundable in case the Registration request cannot be completed.

2.4.3.

Terms and Conditions. Drop-catch services are subject to the terms contained in the Pre- and Backorder Schedule

2.5.

Aftermarket Domain Names

2.5.1.

Service Provider may offer the ability to sell and purchase Domain Names listed on aftermarket platforms. Such Domain Names may be listed as part of a domain search result in the management interface.

2.5.2.

Customer acknowledges that aftermarket Domain Names are Domain Names already registered and offered for sale by third parties and that a Transfer and the agreement of the current Registrant may be required prior to a Domain Name being available for use in the Customer Account.

2.5.3.

For all aftermarket transactions, the Aftermarket Schedule or Appendix applies

2.6.

SSL Certificate Services.

2.6.1.

SSL Certificates. Upon Customer’s request, Service Provider will, through a variety of third-party vendors, acquire for Customer an SSL certificate for Domain Names identified by Customer (“SSL Services“).

2.6.2.

Fees. The fees for each SSL certificate will vary depending upon the type of SSL certificate requested. Unless Service Provider agrees otherwise in writing after the Effective Date, all SSL Services fees will be the then-current fees listed in the Customer Portal at the time of Order submission.

2.6.3.

Terms and Conditions. SSL Services are subject to the terms contained in the SSL Services Schedule

2.6.

Registry Lock Services. Service Provider offers registry lock services (“Lock Services“) that enable a special registry status on selected Domain Names and/or hosts to help prevent malicious or inadvertent Domain Name modifications, deletions and Transfers. Lock Services fees vary greatly by TLD and are available upon request. Lock Services may not be available in every TLD and are subject to the terms contained in the Lock Services Appendix.