Terms and Conditions of Business

For terms and conditions relating to the registration of internet domain names, see our OpenSRS terms and conditions of trade which are to be considered additional to the terms and conditions of business that follow:

AGREEMENT
This Agreement is between you and Peter J Clark, trading as 49TH.NET. This Agreement sets out the terms and conditions relating to your use of the domain name registration services provided by 49TH.NET to register an internet domain name, the registration of that name, and also to 49TH.NET's other products and services (including but not limited to e-mail and web hosting). All users of such services by the use of such services accept these terms and conditions.

1. INTRODUCTION
49TH.NET provides internet domain registration and related services for .com, .org, .net, .info, and .co.uk domains. Upon receipt from you of the necessary domain name information 49TH.NET will submit this to the appropriate registry administrator, who will process the application and, if it is approved, put into effect the domain name registration. ICANN oversees the .com, .org, and .net top-level domains. Nominet oversees the .co.uk second-level domains. Afilias oversees the .info top-level domains. All domain name registrations are subjected to the current ICANN Uniform Domain Name Dispute Resolution Policy or the current Nominet UK Dispute Policy, whichever is deemed by 49TH.NET to be most appropriate to the top-level domain class.

NOTES
1. Pornography and sex-related merchandising are subject to UK law.
2. 49TH.NET reserves the right, at its sole discretion, to reject any application for registration of a domain name, or to suspend any web site, e-mail account, or other service without notice, pending investigation.
3. Spamming or the sending of unsolicited bulk e-mail from a 49TH.NET server or using an e-mail address that is maintained on or through 49TH.NET's systems or suppliers is prohibited.
4. Acceptance of your order is not a guarantee that the Domain Name chosen by you is available.

2. DEFINITIONS
In this Agreement unless the context otherwise requires:
2.1 “Domain Name” means the domain name, which you wish to register, display and exploit on the Internet.
2.2 “Services” means the domain name registration, web site hosting, bandwidth provision, e-mail or any other service or facility posted on the 49TH.NET web site and selected by you and provided to you by 49TH.NET.
2.3 “Server” means the computer equipment operated by 49TH.NET or provided by you in connection with the provision of the Services.
2.4 “Web Site” means the area on the server allocated by 49TH.NET to you for use by you as a site on the Internet.
2.5 “Effective Date” means the date of acceptance by 49TH.NET of this Agreement with you.
2.6 “Fees” means the registration, renewal and/or other fees and charges as agreed on the Order Form or on the 49TH.NET Site from time to time and payable by you for the Services.
2.7 “Intellectual Property Rights” means all copyright, trade marks, service marks, patents, design rights and any other intellectual property rights (whether registered or not).
2.8 “49TH.NET” means Peter J Clark trading as 49TH.NET, 25 Shiremoor Hill, Merriott, Somerset, TA16 5PH, United Kingdom.
2.9 “49TH.NET Site” means the 49TH.NET web site located at http://www.49th.net.
2.10 “Information” means the information provided by you on the Order Form and any other information relating to the Domain Name or the Services submitted by you to 49TH.NET.
2.11 “Order Form” means the order form posted on the 49TH.NET Site, or any form of written or verbal order which you submit, either in person or by proxy, directed to 49TH.NET.
2.12 “User” means you the customer or any person who makes use of the Services through you or on your behalf.
2.13 “Registry” means the relevant domain name registry with whom 49TH.NET arranges to register the Domain Name.
2.14 “Personal Data” means information relating to you held or likely to be held by 49TH.NET.
2.15 “Site” means the premises or location at which the Services are to be provided.
2.16 “Internet” means the global data network comprising Internet connected networks using TCP/IP (Transmissions Control Protocol/Internet Protocol)
2.17 “Network Standards” means the protocol and standards defined in the Internet documents in force from time to time.
2.18 “Protocol Policy” means our policies and rules set out in the Schedule to this Agreement, as amended from time to time.
2.19 “Minimum Contract Term” means the minimum period for which the Services shall be provided and shall unless otherwise agreed on the Order Form be twelve months. The minimum period shall be calculated from the date of completion of the order.

3. DOMAIN NAME REGISTRATION
3.1 49TH.NET makes no representation that the Domain Name you wish to register is capable of being registered by or for you. You should therefore not assume registration of your requested Domain Name until you have been notified that it has been registered. Any action taken by you before such notification is at your risk.
3.2 The registration and use of your Domain Name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them. You shall have no right to bring any claim against 49TH.NET in respect of refusal to register a domain name or cancellation of the Domain Name by the relevant naming authority. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.
3.3 We shall have no liability in respect of the use by you of any Domain Name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such disputes arises, we shall be entitled at our discretion and without giving any reason, to withhold, suspend, transfer or cancel the Domain Name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
3.4 49TH.NET gives no warranty that your Domain Name is or will continue to be available for your use or that no Domain Name is or will be registered which conflicts with your Domain Name or which otherwise affects your use of your Domain Name.
3.5 49TH.NET shall not release any Domain Name to another provider unless full payment for that Domain Name and any other Domain Names, products or services provided has been received by us. You may not sell or transfer ownership of any Domain Name for which 49TH.NET has not received payment. 49TH.NET reserves the right to seize ownership of names to unpaid accounts. Paid-for names may be seized by 49TH.NET and sold to settle any unpaid accounts.
3.6 Disclosure and use of Registration Information
You agree to authorise 49TH.NET to provide any information to ICANN the registry administrators and to other third parties as ICANN and applicable laws may require or permit. You acknowledge and agree that 49TH.NET may make publicly available, some or all the domain registration information provided by you, for purposes of inspection such as through a WHOIS service, for targeted marketing, or for any other purpose as required or permitted by ICANN and applicable laws. You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of information and updates from time to time provided in connection with registered Domain Name, whether during or a after term of the registration of the your Domain Name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of the domain name registration information. 49TH.NET will take reasonable precautions to protect the Information obtained from you from loss, misuse, unauthorised access or disclosure, alteration or destruction of that information.

4. WEBSITE HOSTING AND E-MAIL
4.1 49TH.NET makes no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
4.2 You shall effect and maintain adequate insurance cover in respect of any loss or damage to data on the Server.
4.3 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your user account(s) or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.
4.4 You shall observe the procedures which we may from time to time prescribe as posted on our Site and shall make no use of the Server which is detrimental to our other customers.
4.5 You shall procure that all e-mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
4.6 In the case of an individual User, you warrant that you are at least 18 years of age and if the User is a company, you warrant that the Services will not be used by anyone under the age of 18 years.
4.7 While 49TH.NET will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers and we shall be under no liability for non-receipt or misrouting of e-mail or for any other failure of e-mail.
4.8 The maximum amount of data storage permitted per email account (based upon a single user name and password, rather than a specific email address) will be 10 Megabytes at any one time. The maximum amount of storage space permitted per single e-mail message will be 2 Megabytes including message headers and attachments.
4.9 In the case where an upgrade to service or Server space is applied for, we do not warrant that we will be able to upgrade all customers or be able to add additional services. We also reserve the right to deny upgrades and to remove services without notice.

5. BANDWIDTH UTILISATION
5.1 All electronic data received or transmitted by our servers or suppliers or networks will be tallied monthly, and charged in units of 512 Megabytes or part thereof. You hereby agree to pay on demand all sums due for bandwidth utilisation, even after the actual expiration of a service or product which incurred bandwidth charges during its active or inactive usage.

6. CHARGES AND PAYMENT
6.1 All payments must be made in UK Pounds Sterling. If your cheque is returned by the bank as unpaid for any reason, you will be liable to us for a “returned cheque” charge of £25.
6.2 All charges payable by you for the Services shall be in accordance with the scale of charges agreed or, failing any explicit agreement of rates, the rates published from time to time by us, or the rates specified on the accepted Order Form (where completed), and shall be due and payable in advance of our service provision. At our discretion, some invoices may be granted 30 day payment terms (from the date of the invoice). Charges are exclusive of Value Added Tax which shall, if applicable, be paid additionally by you at the rate prescribed by law on submission by us of a proper VAT invoice.
6.3 You acknowledge that the Services are provided using facilities provided to us by third parties. 49TH.NET shall have the right, subject to 14 days prior written notice to you, to increase our charges at any time during the Minimum Contract Term or the continuation of this Agreement, whether to reflect costs to us from such third parties or otherwise.
6.4 All charges unless otherwise agreed are payable in advance. Unless otherwise specified and agreed set up and installation charges are payable on order. 49TH.NET agrees to be party to this Agreement upon our acceptance of cleared funds covering first invoice or the first payment under the Order Form (where completed). Recurring charges are payable on connection as defined in clause 2.19 of this Agreement and thereafter on or before the same day (the due date) of all subsequent months under the Minimum Contract Term. If payment is not received on or before the due date 49TH.NET reserves the right to immediately withdraw, suspend or limit service and will charge the User a failure fee of 3% of the amount overdue per month.
6.5 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of the Services to you. If such a suspension is imposed, you will be liable for a “reconnection” charge of £25.

7. DISPUTE POLICY
You agree to be bound by the Dispute Policy laid down by ICANN Uniform Domain Name Dispute Resolution Policy, and the Nominet UK Dispute Policy, as amended from time to time.

8. DEFAULT
8.1 If you break this Agreement in any way, or are subject to bankruptcy or insolvency proceedings, 49TH.NET can (without prejudice, losing or reducing any other rights or remedy) suspend provision of the Services, including partially, temporarily or without notice, albeit the User remains liable to pay rental during the suspension, or can terminate this Agreement by immediate notice, without prejudice to 49TH.NET's pre-existing rights.
8.2 “Bankruptcy or insolvency proceeding” means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or seizure; or if the User is a Company, being the subject of proceedings for the appointment of an administrator, going into liquidation whether voluntary or compulsory (except for the purpose of amalgamation or reconstruction) or having a receiver or Administrative receiver of any assets appointed.
8.3 You continue to be liable to pay all charges which are due for the Services during any period in which you do not comply with this Agreement.
8.4 On termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Web Site and email services, and to remove all data associated with those services. We shall be entitled to delete all such data but we may, at our discretion, hold such data for such period as we may decide to allow you to collect it at your expense, subject to payment in full of any amounts withstanding any payment to us.
8.5 If 49TH.NET waives a breach of contract by you, that waiver is limited to the particular breach. Any delay by 49TH.NET in acting upon a breach is not to be regarded in itself as a waiver.

9. TERMINATION OF SERVICE
9.1 This Agreement may be terminated by either party on giving at least 30 days notice to the other expiring on the last day of the Minimum Contract Term or at any time thereafter. If 49TH.NET gives notice you shall pay all charges up to the expiry of the notice. If you give notice, you shall pay all charges until 30 days after the date 49TH.NET receives the notice or until expiry of the notice, whichever is the latter. Your notice does not avoid any other liability for Services already provided.
9.2 49TH.NET reserves the right during the Minimum Contract Term to terminate this Agreement by giving to you not less than 30 days prior written notice of termination.

10. NOTICES
Any notice to be given by either party to the other may be sent by either e-mail, fax or recorded delivery to the address of the other party as appearing in this Agreement or the Order Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by e-mail shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.

11. MATTERS BEYOND 49TH.NET'S REASONABLE CONTROL
49TH.NET is not liable for any breach of this Agreement or liable for any delay or failure in performance of any part of these conditions and its commitments when caused as a result of Force Majeur, war, civil disorder, industrial disputes, inclement weather, acts of local or central government or other competent authorities, and failure by other service providers.

12. LIABILITY
12.1 You acknowledge that 49TH.NET has no control over the information transmitted via the Services and that 49TH.NET does not examine the use to which you put the Services or the nature of the information you are sending or receiving. 49TH.NET hereby excludes all liability of any kind for the transmission or reception of information of whatever nature.
12.2 49TH.NET undertakes no liability whatsoever for the acts or omissions of other providers or telecommunication service or for faults in or failures of their apparatus.
12.3 49TH.NET is not in any way liable in contract or otherwise for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatsoever.
12.4 49TH.NET make no warranty as regards to the Services or its equipment and will not be responsible for any damage allegedly suffered or claimed by you for any reason including but not limited to loss of data, wrong or non deliveries and service interruptions.
12.5 All conditions, terms, representations and warranties relating to the Services supplied under the Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these Terms and Conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to sub clause
12.6 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
12.7 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the specific Services which are the subject of any such claim.
12.8 In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.

13. INDEMNITY
You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of this Agreement and any claim brought against us by a third party resulting from the provision of the Services by us to you and your use of the Services and the Server.

14. REPRESENTATION & WARRANTIES
You acknowledge and agree that all domain name registration services provided to you by 49TH.NET are provided on an “as is” basis. 49TH.NET makes no representation or warranties of any kind, express or implied, in connection with this Agreement or its domain name registration or other products and services, including but not limited to warranties of merchantability or fitness for a particular purpose.

15. DATA PROTECTION
15.1 Except to the extent that 49TH.NET is required or permitted by law, the Information and Personal Data will be used solely for the purposes of assessing your request to register the Domain Name and to provide the Services.
15.2 In the event 49TH.NET does not accept your offer to enter into this Agreement, the information and Personal Data will not be held for longer than necessary, after which time it will be destroyed.
15.3 In the event 49TH.NET does accept your offer to enter into this Agreement, the Information and Personal Data will form part of your customer records and 49TH.NET will be entitled to use it for all purposes connected with the provision of the Services, such Services including, but not limited to, the provision of the information and/or Personal Data to Domain Registries.
15.4 As part of the provision of the Services, the information and Personal Data may be transferred outside the European Economic Area (“EEA”) and by supplying the Information and Personal Data, you hereby consent to any such transfer. You confirm that you are aware that countries outside the EEA may have less extensive protection for personal data than the United Kingdom.
15.5 49TH.NET may wish to use the Information and Personal Data to send information about its services and/or products. If you do not wish to receive any such information, you may send a notice to 49TH.NET indicating that you do not wish to receive such information.

16. TRANSFER REQUESTS
16.1 You may ask 49TH.NET to transfer your Domain Name(s) at any time during the term of this Agreement, for which a "transfer out" fee of £50 will be payable by you.
16.2 You understand and acknowledge that by submitting a request to transfer a Domain Name, you release 49TH.NET from all obligations, claims, liabilities and/or demands arising out of or in relation to this Agreement.
16.3 On receipt of a transfer request 49TH.NET will use its reasonable endeavours to process such request but shall not be responsible for any delay in effecting such transfer.
16.4 49TH.NET shall not be obliged to process a transfer request until:
16.4.1 You have provided all information necessary to effect such transfer; and
16.4.2 You have paid all fees; and
16.4.3 You have paid any applicable transfer fee to 49TH.NET.

17. OTHER TERMS AND CONDITIONS
17.1 Force Majeure: 49TH.NET shall not be responsible for any failure to provide any service or perform any obligation because of any act of God, strike, work stoppage, governmental acts or directives, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force beyond its reasonable control.
17.2 Non-Waiver: The failure of 49TH.NET to require your performance provision shall not affect the full right to require such performance at any timer thereafter, nor shall the waiver by 49TH.NET of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
17.3 Survival: The provision, terms, conditions representations, warranties, covenants, and obligations contained in or imposed by this Agreement which by their performance after the termination of this Agreement, shall be and remain enforceable notwithstanding termination of the Agreement for any reason. However, neither party shall be liable to other damages of any sort resulting solely from terminating this Agreement in accordance with its terms but each party shall be liable for any damage from any breach by it of this Agreement.
17.4 Governing Law: Except as otherwise set forth in the Dispute Policy with respect to disputes, this Agreement your rights and obligations and all contemplated by this Agreement shall be governed by the laws of the United Kingdom.
17.5 Legal fees: If any legal action or proceedings, including arbitration, relating to the performance or the enforcement of any provision of this Agreement is brought by any party to this Agreement, the prevailing party shall be entitled to recover reasonable legal fees, expert witnesses fees, costs and disbursements, in addition to any other relief to which the prevailing party may be entitled.
17.6 Assignment: You shall not assign, sub-license or transfer your rights or obligations under this Agreement to any third party without the prior written consent of 49TH.NET. However, in the event that 49TH.NET consents to such an assignment, sub-license or transfer, then this Agreement shall ensure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

18. GENERAL
18.1 Entire Agreement: This Agreement constitute the entire Agreement between the parties 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.
18.2 Amendment in writing: This Agreement may not be a amended or modified by you except by means of a written document signed by both you and an authorised representative of 49TH.NET.
18.3 Further Assurances: The parties shall execute such further and other documents and instruments and take such further and other actions as may be necessary to carry out and give full effect to the transactions contemplated by this Agreement.
18.4 Relationship of Parties: Nothing of this Agreement shall be construed as creating an agency relationship, partnership or joint venture between parties.
18.5 Joint and several obligations: If any party consists of more than one entity, their obligations here under are joint and several.
18.6 No Third party beneficiaries: This Agreement does not provide and shall not be construed to provide any third parties, with any remedy, claim, cause of action or privilege.
18.7 Severability: In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable Court decision, such unenforceable or invalidity shall not render this Agreement unenforceable or invalid as a whole, 49TH.NET will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of 49TH.NET as reflected in the original provision.