- DEFINITIONS AND INTERPRETATION
- APPLICATION OF CONDITIONS
- COMMENCEMENT AND DURATION
- THESERVE'S OBLIGATIONS
- CUSTOMER'S OBLIGATIONS
- CHARGES AND PAYMENT
- INTELLECTUAL PROPERTY RIGHTS
- CONFIDENTIALITY AND Theserve'S PROPERTY
- LIMITATION OF LIABILITY
- DATA PROTECTION
- FORCE MAJEURE
- STATUS OF PRE-CONTRACTUAL STATEMENTS
- NO PARTNERSHIP OR AGENCY
- RIGHTS OF THIRD PARTIES
- GOVERNING LAW AND JURISDICTION
- DOMAIN NAME SPECIFIC TERMS
1. Definitions and Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions (The "Conditions").
AUP: The Acceptable Use Policy which governs the Customers' use of all Theserve services, located at http://www.theserve.co.uk/acceptable-usage-policy
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed by Theserve in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Input Material: all Documents, information and materials provided by the Customer relating to the Services including, computer programs, data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by Theserve relating to the Services which existed prior to the commencement of this Agreement including computer programs, data, reports and specifications or any other existing materials.
Services: the services to be provided by Theserve under this Agreement including the electronic transmission of information, graphics, sound and any other form of information transfer through Theserve servers and lines of telecommunication internet services, hosting of internet servers, space on internet servers, hosting of virtual internet servers, website, domain names, electronic transfer of information, design, construction and work involved in the production of such and any other services and products supplied to the Customer and purchased from Theserve, together with any other services which Theserve provides or agrees to provide to the Customer from time to time.
SLA: Service Level Agreements which dictate the level of service Theserve shall provide, located at http://www.theserve.co.uk/service-level-agreement.
Theserve's Equipment: any equipment, including tools, systems, cabling or facilities, provided by Theserve or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate Agreement between the parties under which title passes to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Words in the singular shall include the plural and vice versa.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to writing or written includes faxes but not e-mail.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
References to conditions and schedules are to the conditions and schedules of this Agreement.
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2. Application of Conditions
||These Conditions (including the AUP and any relevant SLA) shall prevail over any inconsistent terms or conditions contained, or referred to, in any purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
||The Customer's purchase order, or the Customer's acceptance of a quotation for Services by Theserve, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Theserve other than:
- by a written acknowledgement issued and executed by Theserve; or
- (If earlier) by Theserve starting to provide the Services, When a contract for the supply and purchase of the Services on these Conditions will be established.
||No changes to these Conditions shall be binding unless made with the prior written consent of a Director of Theserve. Unless notified to the contrary, no agent of, or person employed by or under contract with Theserve, has any authority to alter or vary these Conditions in any way.
||The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern this Agreement.
||Quotations are given by Theserve on the basis that no Agreement shall come into existence except in accordance with this condition 2. Any quotation is valid for a period of 30 days from its date, provided that Theserve has not previously withdrawn it.
||Theserve may alter these Conditions at any time with notification to You via email. Your sole remedy in the event that You do not agree to amendments made to the Conditions shall be to serve 3 months written notice of contract termination without any right to damages or service credit.
||Unless otherwise expressly agreed, the Conditions apply to any future work the Customer provides to Theserve.
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3. Commencement and Duration
||The Services supplied under this Agreement shall be provided by Theserve to the Customer from the date of acceptance by Theserve of the Customer's offer in accordance with condition 2.
||The Services supplied under this Agreement shall continue to be supplied for a period of 12 months (the "Initial Period") and, after that, shall continue to be supplied unless this Agreement is terminated by one of the parties giving to the other not less than 3 months' notice, unless this Agreement is terminated in accordance with condition 11
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4. Theserve's Obligations
||Theserve shall use best endeavours to supply the Services, to the Customer.
||Theserve shall use best endeavours to meet any agreed performance dates but any such dates shall be estimates only and time shall not be of the essence of this Agreement.
||Theserve will undertake planned service outages as required. Customers will be notified of planned outages via the system status page on the website plus email. During these planned outages Theserve cannot guarantee availability of the Service.
Theserve will give advance notice of no less than 7 (seven) days prior to the commencement of the downtime.
Theserve reserve the right to undertake planned outages at any time and without notice in order to resolve emergency service faults, however Theserve will endeavour to provide notice of any planned outages that are necessary.
||Theserve shall insure all servers and associated equipment provided that the Customer acknowledges Theserve does not maintain insurance cover against the risk of loss of software or data from servers.
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5. Customer's Obligations
||The Customer shall:
- co-operate with Theserve in all matters relating to the Services and provide the details of an individual, who will have the authority contractually to bind the Customer on matters relating to the Services;
- provide, in a timely manner, such Input Material and other information as Theserve may request and ensure that it is accurate in all material respects;
- ensure that all Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
- Follow and abide by the AUP at all times.
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Theserve's Equipment, the use of Input Material and the use of the Customer's Equipment in relation to Theserve's Equipment insofar as such licences, consents and legislation relate to the Customer's business, premises, staff and equipment in all cases before the date on which the Services are to start;
||If Theserve's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, Theserve shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
||The Customer shall be liable to pay to Theserve all reasonable costs, charges or losses sustained or incurred by Theserve arising directly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to Theserve confirming such costs, charges and losses to the Customer in writing.
||Nothing in this Agreement excludes the liability of either party:
- for death or personal injury caused by the Supplier's negligence; or
- for fraud or fraudulent misrepresentation.
||If either party requests a change to the scope or execution of the Services, Theserve shall, within a reasonable time, provide a written estimate to the Customer of:
- the likely time required to implement the change;
- any variations to Theserve's charges arising from the change;
- any other impact of the change on the terms of this Agreement.
||If the Customer wishes Theserve to proceed with the change, Theserve has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of this Agreement to take account of the change.
||Theserve may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 6.
||Theserve may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements. If Theserve requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
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6. Charges and Payment
||Condition 6.2 shall apply if Theserve provides the Services on a time and materials basis. Condition 6.3 shall apply if the Theserve provides the Services for a fixed price. The remainder of this condition 6 shall apply in either case.
||Where the Services are provided on a time and materials basis:
- the charges payable for the Services shall be calculated in accordance with Theserve's standard daily fee rates, as amended from time to time;
- Theserve's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 9.00 am and 5.00 pm on weekdays (excluding public holidays);
- Theserve shall be entitled to charge overtime rates on a pro-rata basis for each hour worked by individuals whom it engages on the Services outside the hours referred to in condition b;
- all charges quoted to the Customer shall be exclusive of VAT which the Theserve shall add to its invoices at the appropriate rate; and
- Theserve shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition.
||Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Sales Order. The total price shall be paid to Theserve (without deduction or set-off) in instalments, as set out in the Sales Order, Theserve shall invoice the Customer on commencement of the services for the charges that are then payable, together with expenses (agreed in advance), the costs of materials and VAT, where appropriate.
Any fixed price and daily rate contained in the Sales Order excludes:
- the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Theserve engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Theserve for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Theserve; and
- VAT, which Theserve shall add to its invoices at the appropriate rate.
||The Customer shall pay each invoice submitted to it by Theserve, in full and in cleared funds, within 30 days of receipt.
||Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Theserve on the due date, Theserve may:
- charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Theserve may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
- suspend all Services until payment has been made in full.
||Time for payment shall be of the essence of this Agreement.
||All sums payable to Theserve under this Agreement shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
||Theserve may, without prejudice to any other rights it may have, set off any liability of the Customer to Theserve against any liability of Theserve to the Customer.
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7. Intellectual Property Rights
||As between the Customer and Theserve, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by Theserve.
||The Customer acknowledges that, where Theserve does not own any Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on Theserve obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Theserve to license such rights to the Customer.
||All Intellectual Property Rights in the Deliverables or any other works arising in connection with the performance of the Services by Theserve shall be the property of Theserve, and Theserve hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights for the purposes only of using the Services.
||This licence will not extend to:
- copying or using the Deliverables other than in connection with the Services;
- granting any other person the right to copy or to use the Deliverables
- selling, transferring or otherwise disposing of or granting rights in the Deliverable; or
- any Deliverables in which it does not own the Intellectual Property Rights.
||If this Agreement is terminated, this licence will automatically terminate.
||Theserve shall indemnify the Customer against all damages, losses and expenses arising as a result of any successful action for infringement of the Intellectual Property Rights of a third party brought in respect of the Pre-existing Material or the Deliverables provided that such infringement is in no way attributable to the IPR contained in the Input Materials.
||The indemnity in clause 7.6 is subject to the following conditions:
- the Customer promptly notifying Theserve in writing of the claim;
- the Customer making no admissions or settlements without Theserve’s prior written consent;
- the Customer, at the cost of Theserve, giving Theserve all information and assistance that Theserve may reasonably require; and
- the Customer allowing Theserve complete control over the litigation and settlement of any action or claim.
||The Customer shall indemnify Theserve against all damages, losses and expenses arising as the result of any successful action for infringement of the Intellectual Property Rights of a third party in the Input Materials.
||The indemnity in clause 7.7 is subject to the following conditions:
- Theserve promptly notifying the Customer in writing of the claim;
- Theserve making no admissions or settlements without the Customer’s prior written consent;
- Theserve, at the cost of the Customer, giving the Customer all information and assistance that Theserve may reasonably require; and
- Theserve allowing the Customer complete control over the litigation and settlement of any action or claim.
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8. Confidentiality and Theserve's Property
||Both parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other, its employees, agents or sub-contractors and any other confidential information concerning its business or its products which the other party may obtain (“Confidential Material”). Both parties shall restrict disclosure of such Confidential Material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the party’s obligations under this Agreement, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the parties.
||All materials, equipment and tools, drawings, specifications and data supplied by Theserve to the Customer (including Pre-existing Materials and Theserve's Equipment) shall, at all times, be and remain the exclusive property of Theserve, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Theserve, and shall not be disposed of or used other than in accordance with Theserve's written instructions or authorisation.
||This condition 8 shall survive termination of this Agreement, however arising.
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9. Limitation of Liability
YOUR ATTENTION IS DRAWN SPECIFICALLY TO THE LIMITATIONS TO LIABILITY IN THIS CLAUSE 9
||This condition 9 sets out the entire financial liability of Theserve (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
- any breach of this Agreement;
- any use made by the Customer of the Services, the Deliverables or any part of them; and
- any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this Agreement.
||All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
||Nothing in these Conditions limits or excludes the liability of Theserve:
- for death or personal injury resulting from negligence; or
- for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Theserve; or
- for any liability incurred by the Customer as a result of any breach by Theserve of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
||Subject to condition 9.2 and condition 9.3 Theserve shall not be liable for:
Theserve's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services.
- loss of profits; or
- loss of business; or
- depletion of goodwill and/or similar losses; or
- loss of anticipated savings; or
- loss of goods; or
- loss of contract; or
- loss of use; or
- loss of data due to corruption or raid failure; or
- loss of data due to inability to restore data from backups; or
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10. Data Protection
||The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency.
||If The Customer require Theserve to process information about any person that is defined by the Data Protection Act 1998 (as amended from time to time) (“DPA”) as personal data, Theserve will do as a data processor (as defined in the DPA). You shall remain the data controller (as defined in DPA) for the purposes of such processing.
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||Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other on giving the other not less than three months written notice after the Initial Period; or immediately on giving notice to the other if:
- the other party commits a material breach of any of the terms of this Agreement or AUP and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
- an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
- an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
- a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
- the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
- the other party ceases, or threatens to cease, to trade; or
- there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
- the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
||On termination of this Agreement for any reason:
- the Customer shall immediately pay to Theserve all of Theserve's outstanding unpaid invoices and interest and, in respect of agreed Services supplied but for which no invoice has been submitted, Theserve may submit an invoice, which shall be payable immediately on receipt;
- the Customer shall immediately return all of Theserve's Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then Theserve may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
- the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
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12. Force Majeure
||Theserve shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Theserve or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Theserve or sub-contractors.
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||No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
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||A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
||Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
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||If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
||If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
||The parties agree, in the circumstances referred to in condition 15.1 and if condition 15.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
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16. Status of Pre-Contractual Statements
||Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
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||The Customer shall not, without the prior written consent of Theserve, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
||Theserve may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
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18. No Partnership or Agency
||Unless expressly stated othersie nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
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19. Rights of Third Parties
||This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
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||A notice given under this agreement:
- shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
- shall be sent for the attention of the person, and to address, fax number or email address given in this clause 20 (or such other person, address, fax number or email address as the receiving party may have been notified to the other, such notice to take effect five days from the notice being received); and
- shall be:
- delivered personally; or
- sent by fax or e-mail; or
- sent by pre-paid first-class post, recorded delivery or registered post; or
- (if the notice is to be served or post outside the country from which it is sent) sent by the registered airmail.
||The addresses for the service of notice are:
- for the Customer; the address given to Theserve for invoicing purposes
- for Theserve
6 The Chase
Fax: 08704 866 855
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||All media release, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties in writing prior to release.
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22. Governing Law and Jurisdiction
||This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
||The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
||This Agreement has been entered into on the date stated at the beginning of it.
||For the purposes of interpretation of the Terms and Conditions, our operating jurisdiction is England and the time zone is GMT. The operating language is English.
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23. Domain Name Specific Terms
||Theserve acts as an agent and reseller for different Registrars and Domain name sellers & as your agent when purchasing domain names. The contract for domain name registration is between you and the naming authority. Your use of a domain name, once registered, may be challenged by a third party; if so, the Uniform Domain Name Dispute Resolution Policy (the "UDRP") or other as amended from time to time and provided by the Registrar responsible shall apply to all registrations or renewals. An example of such is ICANN’s UDRP available at http://www.icann.org/udrp/udrp.htm
||We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by You. Accordingly, You should take no action in respect of your requested domain name(s) until You have been notified that your requested domain name has been registered.
||The registration of the domain name and its ongoing use is subject to the relevant naming authority's terms and conditions of use and You are responsible for ensuring that You are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims You may have against Theserve in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by You to Theserve shall be non-refundable in any event.
||We accept no responsibility in respect of the use of a domain name by You and any dispute between You and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority. You warrant and undertake that to the best of your knowledge and belief neither the registration of the domain name nor the manner in which it is directly or indirectly used by You or and any licensee directly or indirectly infringes the legal rights of a third party.
||You are solely responsible for providing Theserve with accurate and up-to-date contact information and we shall not accept any responsibility for any cancellation or refusal to renew a domain name by the relevant naming authority due to any failure to provide such information. Any changes made by You to your details in any manner whatsoever are your own responsibility. Whilst we will make every effort to remind you when a renewal of a registration is required We are not responsible for the renewals of any domain name registration and You should make your own arrangements for reminding yourself when any name is due for renewal.
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