Terms and Conditions
You indicate acceptance of these terms and conditions of service by placing an order with Birch Hosting Ltd. These terms and conditions will not be varied for individual customers. Please click on the sections below to expand the relevant information.
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 “downtime” means any service interruption in the availability to visitors of the Website;
1.1.2 “intellectual property rights” means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registrable or not in any country;
1.1.3 “Birch Hosting Ltd” means BirchHosting.co.uk
1.1.4 “IP address” stands for internet protocol address which is the numeric address for the server;
1.1.5 “ISP” stands for internet service provider;
1.1.6 “server” means the computer server equipment operated by Birch Hosting Ltd in connection with the provision of the Services;
1.1.7 “the Services” means Web Hosting, domain name registration, email and any other services or facilities provided by Birch Hosting Ltd.
1.1.8 “spam” means sending unsolicited and/or bulk emails;
1.1.9 “virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as “worms” or “trojan horses”;
1.1.10 “visitor” means a third party who has accessed the Website;
1.2 Product specifications and details may be found at URL.
1.3 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.4 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2.1 The Customer wishes to provide Birch Hosting Ltd with data that will be hosted on Birch Hosting Ltd’s servers and made accessible via the Internet.
2.2 Birch Hosting Ltd provides Web Hosting services and has agreed to host the Customer’s data upon the following terms and conditions.
3.1 Birch Hosting Ltd shall provide to the Customer the Services specified in their order subject to the following terms and conditions.
3.2 The Customer shall deliver to Birch Hosting Ltd the website and the software used in the website which is owned by the Customer, or licensed to him by a third party or Birch Hosting Ltd (“the Customer Software), in a format specified by Birch Hosting Ltd.
4. CHARGES ,PAYMENT AND MONEY-BACK GUARANTEE
4.1 Payment methods include credit cards (including MasterCard and Visa), debit cards (including Switch/Maestro) also cheques, bank transfers with prior arrangement on yearly plans
4.2 Birch Hosting Ltd do not accept cash or any other form of payment other than those outlined in 4.1
4.3 Birch Hosting Ltd shall be entitled to charge interest in respect of late payment of any sum due under this Agreement, which shall accrue from the date when payment becomes overdue, a 10% charge will be added to your invoice automatically.
4.4 Birch Hosting Ltd do not provide credit facilities.
4.5 From time to time Birch Hosting Ltd may make enquiries on the Customers company, proprietor or directors of the Customers company with credit reference agencies. These agencies may record that a search has been made and share this information with other businesses.
4.6 Birch Hosting Ltd provide “Money-Back Guarantees” on certain products. Should your product qualify for this guarantee please raise a support ticket within the customer control panel within 30 days of placing your order for a full refund. This guarantee excludes domain names and add-ons which may not be cancelled once ordered, free domains given with hosting will be deducted from the total amount paid at the current Domain Registration pricing. Add-ons will also be deducted from the total refund price, with the exception of Webbuilder Plus which carries a 30 day Money-Back Guarantee. Customers are limited to using the money-back guarantee once. If you cancel a hosting package within the first 12 months and on a monthly or quarterly plan, the full domain price needs to be paid in full.
4.7 Pro-rata refunds will not be issued for yearly services that are cancelled before the end of the year.
4.8 Should your chosen payment method fail Birch Hosting Ltd will attempt to settle your invoice using any other payment facilities available on your account.
4.9 All services will renew until cancelled by the customer. Birch Hosting Ltd emails the customers primary email address prior to renewal of services, it is the customers responsibility to cancel services prior to renewal as no refund can be made once renewal has occurred. Customers must notify us at least 72 hours before a service is renewed if they wish to cancel that service. The cancellation process must be fully completed by you before your account is cancelled.
4.10 Once a package becomes overdue, and BirchHosting has had no communication from the customer the account will be suspended and all services within. If you are running a legacy package that is no longer available, we will migrate you to an identical cost package but cannot guarantee the same functionality.
4.11 All services not renewed on time will be suspended after a 2 day grace period. Your site will not be deleted for 40 days, so you can renew your package at any point within this time period.
4.12 Dedicated servers have to be renewed the day before expiry as there is no grace period. Once a dedicated server expires the files will be removed and no backups will be taken.
4.13 Any payments received via PayPal or Credit Card in error due to no cancellation of subscriptions will incur a £0.20p transaction charge for refunds. Unfortunatly we cannot refund domain renewals.
5. IP ADDRESSES
5.1 Birch Hosting Ltd shall maintain control and ownership of the IP address that is assigned to the Customer as part of the Services and reserves the right in its sole discretion to change or remove any and all IP addresses.
5.2 Where Birch Hosting Ltd changes or removes any IP address it shall use its reasonable endeavours to avoid any disruption to the Customer.
5.3 When a customer requires extra IP addresses for dedicated over and above what’s supplied, you will need to complete a Ripe form. Filling in this form will not guarantee supply due to the current shortage of IPV4. If you’re purchasing a dedicated server and you require extra dedicated IP addresses we suggest you contact us before you order.
5.4 We will not supply above 5 IP addresses to new customer. The customer has to have a live server for at least 1 month before we can review higher volumes, and this will be dependant on satisfying section 5.3
6. SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of software owned by or licensed to Birch Hosting Ltd (“Birch Hosting Ltd’s software”) in order to use the Services, Birch Hosting Ltd grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use Birch Hosting Ltd Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in Birch Hosting Ltd Software.
6.2 In relation to Birch Hosting Ltd’s obligations under this Agreement in connection with the provision of the Services, the Customer grants to Birch Hosting Ltd a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website (“the Content”). For the avoidance of doubt, this Agreement does not transfer or grant to Birch Hosting Ltd any right, title, interest or intellectual property rights in the Customer Software or the Content.
6.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense Birch Hosting Ltd Software.
6.4 Birch Hosting Ltd may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content. Upon termination or expiration of this Agreement, Birch Hosting Ltd shall destroy all such copies of the Content and other materials provided by the Customer as and when requested by the Customer.
7. SERVICE LEVELS AND DATA BACKUP
7.1 Birch Hosting Ltd shall use its reasonable endeavours to make the server and the Services available to the Customer 100% of the time but because the Services are provided by means of computer and telecommunications systems, Birch Hosting Ltd makes no warranties or representations that the Service will be uninterrupted or error-free and Birch Hosting Ltd shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Birch Hosting Ltd carries out data backups for use by Birch Hosting Ltd in the event of systems failure. Birch Hosting Ltd do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly Birch Hosting Ltd accepts no responsibility for data loss or corruption.
7.3 Birch Hosting Ltd offers support 7 days a week, we guarantee that you will get a response to any ticket or enquiry within 8 hours. Most tickets are responded to within the hour.
7.3 Birch Hosting Ltd will change the ticket priority and put on hold any ticket priority that’s misused. The high priority is only used for server or complete website outages.
8. ACCEPTABLE USE POLICY
8.1 The website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to:
8.1.1 use the Services or the website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the Services;
8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website;
8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 engage in illegal or unlawful activities through the Services or via the Website;
8.1.6 make available or upload files to the website or to the Services that the Customer knows contain a virus, worm, trojan, exe files or corrupt data; or
8.1.7 obtain or attempt to obtain access, through whatever means, to areas of Birch Hosting Ltd’s network or the Services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers.
8.1.8 operate or attempt to operate IRC bots or other permanent server processes.
8.2 The Customer has full responsibility for the content of the Website. For the avoidance of doubt, Birch Hosting Ltd is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services.
8.3 If the Customer fails to comply with the Acceptable Use Policy outlined in Clause 4.1 8.4 Birch Hosting Ltd shall be entitled to withdraw the Services and terminate the Customer’s account without notice.
9. ALTERATIONS AND UPDATES
9.1 All alterations and updates to the website shall be made by the Customer using the online account management facility, FTP access or SSH access where available. The Customer will be issued with a user name and password in order to access the account. The Customer must take all reasonable steps to maintain the confidentiality of this user name and password. If the Customer reasonably believes that this information has become known to any unauthorised person, the Customer agrees to immediately inform Birch Hosting Ltd and the password will be changed.
10.1 The Customer warrants and represents to Birch Hosting Ltd that Birch Hosting Ltd’s use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to Birch Hosting Ltd as set out in Clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, Birch Hosting Ltd shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
11.1 The Customer agrees to indemnify and hold Birch Hosting Ltd and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Birch Hosting Ltd arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website.
12. LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude or limit Birch Hosting Ltd’s liability for death or personal injury resulting from Birch Hosting Ltd’s negligence or that of its employees, agents or sub-contractors.
12.2 The entire liability of Birch Hosting Ltd to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall Birch Hosting Ltd be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Birch Hosting Ltd had been made aware of the possibility of the Customer incurring such a loss.
13. TERM AND TERMINATION
13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement.
13.2 Birch Hosting Ltd shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
13.5 On termination all data held in the customers account will be deleted.
14.1 Birch Hosting Ltd may assign or otherwise transfer this Agreement at any time.
14.2 The Customer may not assign or otherwise transfer this Agreement or any part of it without Birch Hosting Ltd’s prior written consent.
15. FORCE MAJEURE
15.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
6.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
17.1 Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email 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 2 days following the date of posting.
18. ENTIRE AGREEMENT
18.1 This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This Agreement may be updated without notice.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
20. DOMAIN NAME REGISTRATION TRANSFER & RENEWAL
20.1 Domain names are not deemed to be successfully registered until they appear in the relevant whois database of the top level domain name registrar. In the event that a domain name is unavailable when we attempt to register it Birch Hosting Ltd will provide a full refund for that domain name.
20.2 All domain registrations with a .uk prefix to the customer will be entering into a contract with Nominet Uk please refer to point 30.
20.3 All .UK, .CO.UK, .ME.UK and .ORG.UK prefix domains need to be active to manage or transfer out. We do not charge to transfer out ACTIVE domains.
20.4 Once registered refunds may not be available, as domain names are classed as digital goods.
20.5 Domain names beed to be renewed before the expiry date to enasure no loss of service, or potential loss of domain.
20.6 .All domains have a grace renewal periuod of 30 days, and it will not cost you anymore to renew with the exception of .EU domains that once they have expired there is a redeption charge between £60 – £250 to renew.
20.7 All gTLD (non country code) domains are bound by the Enom or Resellerclub terms of service including the transfers of such domains.
21. Birch Hosting Ltd are not responsible for customer programming issues other than ensuring that programming languages such as Perl, PHP and ASP are installed and functioning on the Web Hosting system.
23. DATA TRANSFER
23.1 Web Hosting accounts include a certain amount of data transfer, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included.
23.2 Web Hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, sub domain or directory.
24. SERVER USAGE
24.1 Should your cloud hosting account use more than 5% of the cloud hosting server processing power and as a result have a detrimental effect on other customers we will discuss with you alternative solutions for your hosting requirements.
24.2 Automated backups are not allowed on our cPanel servers as this is classed as a duplicate process, as we backup the servers every 6 hours and our premium hosting every hour.
24.3 All legacy “Unlimited Domains Hosting” will continue to be honoured providing that the domains are registered through us, unfortunatly we cannot allow unlimited domains hosting supplied through other registrars. This only applies to the discontunued (Legacy Plans) that are no longer available.
24.4 On Shared cPanel hosting excluting the premium plans some WordPress plugins are disallowed, See More
24.5 Our cPanel hosting has the following allowance
|Hosting Plan||CPU (Accessible cores)||Physical Memory/RAM (MB)||I/O (KB/s)||Entry Processes|
|Files (Inodes) Soft,Hard||MYSQL (concurrent connections)|
|cPanel Custom||1||Varies||Varies||Varies||Varies||30 Currently not monitored|
|Plan 1 (Legacy)||1||128||1024||20||100000,110000||30 Currently not monitored|
|Plan 2 (Legacy)||1||256||1024||20||120000,132000||30 Currently not monitored|
|Plan 3 (Legacy)||1||384||1024||20||150000,165000||30 Currently not monitored|
|Plan 4 (Legacy)||1||512||1024||20||200000,220000||30 Currently not monitored|
|Host 2||1||256||1024||20||150000,165000||30 Currently not monitored|
|Host 4||1||512||1024||20||200000,220000||30 Currently not monitored|
|Host 6||1||512||1024||20||230000,253000||30 Currently not monitored|
|Host 8||1||512||1024||20||250000,275000||30 Currently not monitored|
|Resellers||1||256 / 512||1024||20||200000,220000||30 Currently not monitored|
|B2B||1||512||1024||50||250000,275000||30 Currently not monitored|
|Premium 1||1||1024||2048||100||400000,440000||Not monitored|
|Premium 2||2||2048||3072||150||500000,550000||Not monitored|
With INODE usage we will stop making backups when you hit the soft limits and stop any further uploading or write to disk on the hard target. When you hit the hard target you need to either upgrade or remove files.
25. AFFILIATE PROGRAMME
25.1 Commission earned via the affiliate programme will only be paid by using a valid Paypal or UK bank account. It is the customers responsibility to ensure they have this facility. In the event of the customer not being able to obtain this facility then no commission will be paid, and i will be offered as a credit in their client area.
25.2 Affiliates can only generate discount codes so they can be used to acquire new customers. (If Available)
25.3 Affiliates are not allowed to use their own generated codes, the codes used are for new customers only.
25.4 Affiliates must login to their account at least once every 3 months to keep their account active if you have no products or services, failure to do so will result in the closing of the account and loss of commisions. Affiliates with Hosting or domains in their account this restriction doesn’t apply.
26. EMAIL NEWSLETTER
26.1 Birch Hosting Ltd communicates with it’s customers via email and as such you agree to receive by email our regular newsletter which contains amongst other things changes to our terms and conditions, notification of major outages, updates to our products & features and special offers.
27. WEBSPACE USAGE
27.1 Unlimited web space is available for genuine web site content, content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository. Customers are expected to employ good house keeping when maintaining their account.
27.2 Please also refer to the limitations of use with the webspace in section 23.2
27.3 Databases are not to exceed 500MB on shared hosting plans
27.4 With multi domain accounts on cPanel you are prohibited to resell this space unless you are on a reseller plan.
27.5 Birchhosting don’t allow any form of website scripting newsletter script. Email marketing needs to be done via a dedicated service like mailchip or similar
28. MAIL BOXES
28.1 Mail boxes not accessed for 100 days or more will be deleted from the system.
28.2 Free email accounts are only available to customers that have registered a domain with BirchHosting Limited pointing to our nameservers and don’t have hosting elsewhere, as your hosting provider needs to supply those services to you. Paid email is available to everyone. and no restrictions on nameservers.
29. FREE TRIAL
29.1 We will offer you the customer a free trial on any of our shared Web Hosting packages, providing the following points are satisfied.
- You have not had a trial previously (Only 1 Trial per customer)
- The nameservers are pointing to us, and can be verified.
- You have filled out a support ticket with package and billing cycle required.
- Providing the Web Hosting trial is in affect.
- You understand that the price freeze guarantee doesn’t apply to you until your first payment has been processed.
Please Note:- The free trial is not available on the reseller hosting plan.
30. Nominet Terms and Conditions
You can see the full nominet term and conditions wia the nominet site at http://www.nominet.org.uk/go/terms
31. UK Domain Dispute Policy
Abusive Registration means a Domain Name which either:
i. was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights; OR ii. has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights;
Complainant means a third party who asserts to us the elements set out in paragraph 2 of this Policy and according to the Procedure;
Contract means the contract between us and the Respondent, made up of our Terms and Conditions, the Rules for .uk domain and sub-domains, this Policy and the Procedure;
Days means unless otherwise stated any day other than Saturday, Sunday or any Bank or public holiday in England and Wales;
Decision means the decision reached by an Expert and where applicable includes decisions of an appeal panel;
Dispute Resolution Service means the service provided by us according to this Policy and the Procedure;
Domain Name means a domain name registered in any sub-domain of the .uk domain;
Expert means the expert(s) we appoint under paragraphs 8 or 18 of the Procedure and references to Expert where applicable also refer to the Experts appointed under paragraph 18 of the Procedure;
Informal Mediation means impartial mediation which we conduct to facilitate an acceptable resolution to the dispute;
ISP means the internet service provider through which the Domain Name in dispute has been registered or is hosted; Party means a Complainant or Respondent and ‘Parties’ has a corresponding meaning;
Procedure means the Procedure for the conduct of proceedings under the Dispute Resolution Service;
Respondent means the person (including a legal person) in whose name or on whose behalf a Domain Name is registered and against whom the Complainant makes a complaint;
Rights includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant’s business;
we means Nominet UK (company no. 3203859) whose registered office is at Sandford Gate, Sandy Lane West, Littlemore, Oxford, OX4 6LB and us and our have corresponding meanings.
Dispute Resolution Service
a. A Respondent must submit to proceedings under the Dispute Resolution Service if a Complainant asserts to us, according to the Procedure, that:
i. The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
ii. The Domain Name, in the hands of the Respondent, is an Abusive Registration.
b. The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities.
Evidence of Abusive Registration
a. A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows:
i. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:
A. primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B. as a blocking registration against a name or mark in which the Complainant has Rights; or
C. primarily for the purpose of unfairly disrupting the business of the Complainant; ii. Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
iii. In combination with other circumstances indicating that the Domain Name in dispute is an Abusive Registration, the Complainant can demonstrate that the Respondent is engaged in a pattern of making Abusive Registrations; or
iv. It is independently verified that the Respondent has given false contact details to us.
b. Failure on the Respondent’s part to use the Domain Name for the purposes of e-mail or a web-site is not in itself evidence that the Domain Name is an Abusive Registration.
How the Respondent may demonstrate in its response that the Domain Name is not an Abusive Registration a. A non-exhaustive list of factors which may be evidence that the Domain Name is not an Abusive
Registration is as follows:
i. Before being informed of the Complainant’s dispute, the Respondent has:
A. used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services;
B. been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name;
C. made legitimate non-commercial or fair use of the Domain Name; or
ii. The Domain Name is generic or descriptive and the Respondent is making fair use of it.
b. Fair use may include sites operated solely in tribute to or criticism of a person or business, provided that if:
i. the Domain Name (not including the first and second level suffixes) is identical to the name in which the Complainant asserts Rights, without any addition; and
ii. the Respondent is using or intends to use the Domain Name for the purposes of a tribute or criticism site without the Complainant’s authorisation then the burden will shift to the Respondent to show that the Domain Name is not an Abusive Registration.
a. After we have received the Parties’ submissions under the Procedure, we will initiate and conduct a period of Informal Mediation under paragraph 7 of the Procedure.
Appointment of Expert
a. If an acceptable resolution cannot be found by Informal Mediation we will notify the Parties that we will appoint an Expert when the Complainant has paid the applicable fees set out in paragraph 21(a) of the Procedure and within the time specified in paragraph 21(c) of the Procedure. The Expert will come to a written Decision.
Notification and Publication
a. We will communicate a Decision to the Parties according to paragraph 17 of the Procedure and will publish all Decisions in full on our web site.
b. Fees are payable by the Complainant or otherwise according to paragraph 21 of the Procedure only if an acceptable resolution has not been reached by Informal Mediation and once we have notified the Parties that an Expert is to be appointed.
Exclusion of Liability
a. Neither we nor our directors, officers, employees or servants nor any Expert shall be liable to a party for anything done or omitted in connection with any proceedings under the Dispute Resolution Service unless the act or omission is shown to have been in bad faith.
Appeal and Availability of Court Proceedings
a. Either Party will have the right to appeal a Decision under paragraph 18 of the Procedure. The appeal panel will consider appeals both on the basis that a matter be re-examined on the facts, and that procedure has not been correctly followed.
b. We may refer questions of interpretation of the Policy and Procedure to the appeal panel. Any decision rendered as a result of our referral will not affect any Decision previously made under the Dispute Resolution Service.
c. We will publish decisions of the appeal panel. Appeal decisions will not have precedent value, but will be of persuasive value to Experts in future decisions.
d. The operation of the Dispute Resolution Service will not prevent either the Complainant or the Respondent from submitting the dispute to a court of competent jurisdiction.
Implementation of Expert Decisions
a. If the Expert makes a Decision that a Domain Name registration should be cancelled, suspended, transferred or otherwise amended, we will implement that Decision by making any necessary changes to the Register according to the process set out in paragraph 17 of the Procedure.
Other action by us a. We will not cancel, transfer, activate, deactivate or otherwise change any Domain Name registration except as set out in paragraph 10 above and as provided under [paragraph 8] of the Terms and Conditions. Transfers During a Dispute a. A Respondent may not transfer a Domain Name registration:
i. whilst proceedings under the Dispute Resolution Service are ongoing in relation to the Domain Name or for a period of ten (10) Days after their conclusion, unless to the Complainant as a result of a settlement reached between the Parties and approved by us whether or not pursuant to Informal Mediation; or
ii. whilst a court proceeding or arbitration in respect of the Domain Name registration is ongoing in a court of competent jurisdiction.
We reserve the right to reverse any transfer of a Domain Name registration which does not comply with this paragraph.
b. A Respondent may not without the Complainant’s consent (which the Complainant will not unreasonably withhold) transfer the hosting of a Domain Name to another ISP whilst proceedings under the Dispute Resolution Service are ongoing in relation to the Domain Name or for a period of ten (10) Days after the conclusion of the Dispute Resolution Service.
a. The internet is an emerging and evolving medium and the regulatory and administrative framework under which we operate is constantly developing. For these reasons we reserve the right to make reasonable modifications to the Policy and Procedure at any time. We will only do so when we have good reason. Except where we are acting in pursuance of a statutory requirement or a court order, changes will be implemented following a process of open public consultation. Each such change will be published in advance (where practicable, 30 calendar days in advance) on our web site: http://www.nominet.org.uk/ and will become binding and effective upon the date specified therein.
b. The Respondent will be bound by the Policy and Procedure which are current at the time the Dispute Resolution Service is commenced until the dispute is concluded.