ACKNOWLEDGEMENT AND ACCEPTANCE
IT Live Limited (“IT Live”, “Us”, “We” or “Our”) is an authorised .nz registrar and provides domain name registration services to its customers (“Customer”, “You” or “Your”). All Domain Name Services are provided by IT Live under these standard terms and conditions.
Please read the following terms and conditions carefully. By ordering, receiving or using the Domain Name Services, You accept and agree to these terms and conditions. Capitalised terms are defined at the end of these terms and conditions.
(1) These terms and conditions set out the general terms and conditions which apply to all Domain Name Services supplied by IT Live to You.
(2) The Domain Name Services will be provided under one or more DNS Contracts entered into by the parties agreeing a Proposal.
(3) These terms and conditions, together with a Proposal agreed by the parties, comprise a “Domain Name Service Contract” which constitutes the entire agreement between You and IT Live relating to the Domain Name Services described in the Proposal, and supersedes any and all prior agreements or understandings between the parties.
(4) Unless otherwise agreed in writing, the DNS Contract will continue to apply no matter where You are located at the time any of the Domain Name Services are provided or where You reside. This will be the case until the DNS Contract is cancelled except to the extent clause 20.7 says otherwise
(5) If there is any conflict or discrepancy between these terms and conditions and the Proposal, then these terms and conditions will prevail.
1.1. A DNS Contract shall commence on the Commencement Date and shall expire upon completion of the Domain Name Services under that DNS Contract, unless terminated earlier by either party pursuant to clause 18.
2. DOMAIN NAME SERVICES AND PROPOSAL
2.1. The Domain Name Services to be supplied from time to time shall be described in one or more DNS Contracts. Each DNS Contract agreed between the parties constitutes a separate contract to provide the Domain Name Services specified in the Proposal on the terms and conditions of that DNS Contract.
2.2. The Domain Name Services are confined to the work specified in the Proposal. Any work (products or services) not expressly recorded in the Proposal is excluded.
2.3. A DNS Contract does not grant the Customer any right to support services. To obtain support, the Customer must enter into a separate support Service Contract with IT Live.
2.4. Alterations to the proposed scope of Domain Name Services due to change requests, variations, other scope changes or delays beyond the control of IT Live will be the subject of an additional fee which will either be agreed between the parties or charged in accordance with IT Live’s then applicable current charge rates. Any such alteration may also impact other aspects of the Domain Name Services including, the Customer’s designated responsibilities and any Domain Name Service delivery schedules or milestones.
2.5. IT Live shall use its reasonable commercial endeavours to provide the Domain Name Services according to any agreed timetables, provided however that dates in any timetable set out in a DNS Contract are intended for planning and estimating purposes only and are not contractually binding. Estimates of time for completion of the Domain Name Services are given on the assumption that IT Live receives full cooperation and commitment from the Customer, its employees and its agents (including the provision of any information required). Any failure or delays in providing the cooperation required may result in additional fees payable by the Customer. IT Live shall not be liable for any damages arising from any delay in supply of the Domain Name Services.
2.6. The Customer acknowledges that IT Live will, in the course of providing the Domain Name Services, use information supplied by the Customer or compiled by others. IT Live will rely on such information and shall not be obliged to verify its accuracy or completeness. The Customer agrees that IT Live will not be liable for any loss or damage the Customer or any other person sustains, directly or indirectly, in connection with IT Live’s reliance on that information.
3. CUSTOMER WARRANTIES
In entering into and performing its obligations under a DNS Contract, the Customer represents and warrants as follows:
3.1 It has full corporate power and has obtained the required authority to enter into and perform its obligations under the DNS Contract;
3.2 It has read and understood all .nz current policies and statements posted at the official website of the DNC;
3.3 Neither the registration of Your Domain Name(s) nor the manner in which Your Domain Name(s) is directly or indirectly used or any other information the Customer provides to IT Live in relation to the Domain Name Service shall infringe any intellectual property or other legal rights of any third party;
3.4 The Domain Name is registered in the Customer’s name only because no other person has it according to the records of the register;
3.5 Neither IT Live nor anybody else is representing anything else to anybody regarding the Domain Name. The entry of a Domain Name in the Query Service is not evidence of anything other than registration;
3.6 It will protect IT Live and everybody IT Live has a business relationship with to provide Domain Name Services to the Customer, from any claim arising out of the Domain Name being registered in the Customer’s name or as the Customer directs;
3.7 Where approvals or decisions are contemplated by the DNS Contract the Customer’s decision will be given promptly and will be within that Customer’s delegated authority levels;
3.8 Full performance of the DNS Contract will not result in the Customer breaching any other agreement;
3.9 It will cooperate with IT Live in good faith and perform its obligations under the DNS Contract in a timely manner;
3.10 It will comply with IT Live’s security, operational and confidentiality requirements as set out in the DNS Contract and as advised by IT Live from time to time in writing; and
3.11 It will comply with all relevant laws and regulations , including the Fair Trading Act 1986, Privacy Act 2020 and all relevant privacy laws (including the GDPR to the extent that it applies to the Customer);
3.12 It will maintain, at its cost, all licences, approvals and permits required by law in order for it to obtain and use the Domain Name Services; and
3.13 When a Domain Name is registered in its name it has a right to use that name for the registration period of that Domain Name (subject to all fees being paid) but it has no ownership rights in the Domain Name.
4. CUSTOMER’S RESPONSIBILITIES
The Customer agrees to:
4.1. Comply with the terms, policies and orders (if applicable) of any regulatory authority or industry body that regulates the registration and use of the Domain Name(s) the Customer has chosen, including complying with the .nz policies and all statements of roles and responsibilities issued by the DNC;
4.2. Make sure all information it gives Us is accurate and complete and keep Us informed of changes to any information it gives Us. If the Customer supplies incorrect information regarding the Domain Name and We incur costs in any matter concerning that Domain Name, then We may recover the costs incurred by Us to the extent legally permitted;
4.3. Keep the unique authentication ID for its Domain Name and any other security information that We give to the Customer confidential, safe and secure;
4.4. Satisfy itself that its use of the Domain Name will not infringe anybody’s intellectual property rights and protect Us, and everybody We are in any business relationship with to provide Domain Name Services to the Customer, from any such claim;
4.5. Ensure that it only uses Our Domain Name Services for a lawful purpose;
4.6. Ensure that the use of any Domain Name registered to the Customer does not interfere with other users of the Internet;
4.7. Ensure that any order of any authority having jurisdiction regarding any Domain Name registered to the Customer is complied with;
4.8. Protect Us, and everybody We have a business relationship with, against any legal action taken against Us because of the receipt or use of Our Domain Name Services by the Customer or someone the Customer is responsible for, including reliance by Us or anybody We have a business relationship with, on information supplied by the Customer;
4.9. Keep Us protected against any legal action taken against Us in connection with the Customer’s use of the Domain Name Service.
4.10. Provide the information, Customer Data, materials and documentation We reasonably require to provide the Domain Name Services;
4.11. Provide Us with reasonable access to Customer resources, equipment and / or sites to the extent necessary to allow Us to perform Our obligations under a DNS Contract;
4.12. Arrange access and security to third parties where applicable;
4.13. Provide necessary communications access and infrastructure to facilitate supply of the Domain Name Services by Us;
4.14. Provide one or more suitably qualified, informed and authorised representatives (to be specified in the Proposal) who shall make decisions on behalf of the Customer and be available to supervise the supply of the Domain Name Services and to advise on access, resourcing and any other matter within the Customer’s knowledge or control which may assist Us in complying with Our obligations under a DNS Contract. The Customer shall provide prompt written notice to Us of any changes in its authorised representatives;
4.15. Make necessary staff available for consultation on request;
4.16. Make decisions promptly, to facilitate the performance of the Domain Name Services;
4.17. Ensure that anyone who is authorised or enabled to use the Domain Name Services does so in a lawful manner which is consistent with the Customer’s obligations under the DNS Contract;
4.18. Follow all reasonable and lawful instructions provided by IT Live in relation to the Domain Name Services;
4.19. Promptly pay all invoices issued by IT Live in accordance with clause 6; and
4.20. Ensure that Users and everyone the Customer is responsible for also meets the duties in this clause.
5. IT LIVE’S RESPONSIBILITIES
In providing the Domain Name Services under a DNS Contract, IT Live will:
5.1. Supply the Domain Name Services in the manner described in the Proposal;
5.2. Provide You with updates on the progress of the Domain Name Services upon request;
5.3. Comply with the terms, policies and orders (if applicable) of any regulatory authority or industry body that regulates the registration and use of the Domain Name(s) You have chosen, including complying with the .nz policies and all statements of roles and responsibilities issued by the DNC, and accurately represent these to You;
5.4. Disclose accurately and completely all our terms and conditions associated with Your use of Our Domain Name Services to register and maintain a Domain Name sought to be used by You, including price and billing information;
5.5. Comply with Your lawful directions in a diligent and timely manner regarding your .nz Domain Name (for example, registration, cancellation, amendment, deletion and associated technical support and billing) provided however that IT Live accepting Your instruction does not provide any guarantee that the Domain Name(s) sought to be registered is available or will be able to be secured for You;
5.6. Process any new .nz Domain Name registrations with the Registry within 18 business hours from the time We receive all the information required to complete a registration. Our business hours are 8am – 5pm Monday – Friday, excluding public holidays and any business holiday closures;
5.7. Notify You of the registration of Your Domain Name(s), including the details of:
(a) The Domain Name;
(b) Your contact details;
(c) Our contact details;
(d) The registration period;
(e) The unique authentication ID for your Domain Name; and
(f) Your obligations as a registrant;
5.8. Arrange for correction of any error in the information in the register about any Domain Name registered to You when requested;
5.9. Provide to You, or to someone We reasonably believe to be acting on Your behalf, the unique authentication ID for Your domain name when requested and for no charge;
5.10. Use Your Personal Information only as authorised by You;
5.11. Take all reasonable steps to safeguard and protect all information about You stored in our databases and system(s);
5.12. Comply with any order of any authority having jurisdiction regarding any Domain Name registered to You;
5.13. Use Our best endeavours to deal with any complaints You may have about the Domain Name Services We provide for You; and
5.14. Cooperate with You and Your agents, employees or contractors involved in any activities related to the Domain Name Services.
6. DOMAIN NAME SERVICE CHARGES, EXPENSES AND PAYMENT
6.1. The Customer shall pay all Domain Name Service Charges as specified in the Proposal. Out of pocket expenses incurred must also be reimbursed to Us. Fees and expenses will be invoiced monthly, unless otherwise agreed.
6.2. We may alter Our fees from time to time. When We alter Our fees We will send You notice of the alteration 30 days before the new fee takes effect.
6.3. Our usual Domain Name fees are for registration, transfer in and renewal of Domain Name licenses, as well as the provision of Domain Name server services. We may also charge for other products and services provided by Us if You chose to add these. We will tell You before any additional charge is incurred.
6.4. The Customer shall pay IT Live’s invoices for Domain Name Service Charges in accordance with the payment terms specified in the Proposal, or if not specified, then by the 20th day of the month following the date of invoice, provided however that if You transfer a Domain Name registered to You to another registrant or to be managed by another registrant, all charges owing to Us shall become immediately due and payable on the date of that transfer.
6.5. The Customer shall pay all Domain Name Service Charges when due in full and without any deductions, set off, counterclaim or offset of any kind.
6.6. In the event any monies due under a DNS Contract (whether for Domain Name Service Charges or otherwise) are not paid in full when due, We shall be entitled to:
(a) Charge interest at a rate of 14% per annum on any amounts outstanding, and recover all debt collection costs and legal expenses (on a solicitor-client basis); and
(b) Immediately suspend any Domain Name Services or further work under any DNS Contract. If the Domain Name Services are suspended, We shall not be obliged to resume the Domain Name Services until the amount owing, and any costs incurred in relation to the suspension are paid in full and, if We deem appropriate, We have received adequate security for any future Domain Name Service Charges. We shall not be liable to the Customer or any other person for any losses arising from suspension of the Domain Name Services, and nothing in this clause shall prejudice or otherwise affect any other rights We have under the DNS Contract or at law.
6.7. Unless otherwise specified, all Domain Name Service Charges, disbursements, expenses or any other reference to amounts payable by the Customer under a DNS Contract are stated in New Zealand Dollars and are inclusive of GST or any other Tax, for which the Customer shall be liable.
6.8. If You dispute the whole or any part of the amount claimed in an invoice submitted by Us:
(a) You shall pay the portion of the amount stated in the invoice that is not in dispute and shall notify Us in writing (within 10 Working Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice; and
(b) If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced or if an invoice is unpaid without notice under this clause, then You shall pay the amount together with interest (14% per annum, calculated daily from the date of the invoice) on that amount.
If no dispute is notified pursuant to (a), You shall be deemed to have accepted the invoice.
7. IT LIVE WARRANTIES
7.1. IT Live warrants that it is the duly authorised owner or licensee of the IT Live Intellectual Property used or incorporated in the Domain Name Services, and has the right and authority to use and supply the IT Live Intellectual Property for the purpose of supplying the Domain Name Services to the Customer on the terms of the DNS Contract.
7.2. To the maximum extent permitted by law, and except as expressly recorded in these terms and conditions, IT Live disclaims all other warranties, conditions, undertakings and representations in relation to the Domain Name Services, either express or implied.
8. CUSTOMER OBLIGATIONS
8.1. The Customer must not, and will ensure that Users do not:
(a) Access or use any Domain Name Services:
(i) In a manner that violates any law;
(ii) To send, knowingly receive, upload, download or use anything which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
(iii) To cause annoyance, inconvenience or needless anxiety; or
(iv) To spam or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; and in an unlawful manner, in contravention of any legislation, laws, license or third party rights.
(b) Engage in any activity that could, or does, bring the management of the .nz domain name space into disrepute;
(c) Remove, obscure or alter any trademarks, brand names , or other proprietary notices (if any) appearing on or contained within any Domain Name Services; or
(d) Otherwise use or access any Domain Name Services other than as expressly permitted by a DNS Contract.
8.2. The Customer agrees that it is responsible for, without limitation, the following:
(a) Everybody who the Customer permits to act for the Customer as a registrant. IT Live will take reasonable care to satisfy itself that You have permitted those persons to act for You;
(b) The internet bandwidth, Customer Systems and other goods or services required for access to the Domain Name Services;
(c) The data and information accessed, transmitted, processed and/or received via the Domain Name Service. For example, by having a registered Domain Name the Customer may be able to create its own website(s). If the Customer does this, the Customer is responsible for the material that the Customer or anyone else puts on the Customer’s website(s). Material on the Customer’s website(s) must not, and the use of it must not, in any way be unlawful; and
(d) The lawfulness of each User’s acts and omissions.
9.1. Each party shall maintain the Confidential Information as strictly confidential at all times and shall not at any time, directly or indirectly:
(a) Disclose, permit or allow to be disclosed, the Confidential Information to any person;
(b) Use the Confidential Information for any purpose other than the provision or use of the Domain Name Services;
(c) Use the Confidential Information to the detriment of the other party that supplied the Confidential Information;
(d) Copy or record by any means, memorise or use the Confidential Information for its own benefit or for the benefit of any person other than the party that supplied the Confidential Information, except:
(i) As required by law;
(ii) As authorised in writing by the party that supplied the Confidential Information; or
(iii) As is already or becomes public knowledge, otherwise than as a result of a breach of the DNS Contract.
9.2. The parties may disclose the Confidential Information to:
(a) Their respective legal advisors, auditors, insurers and accountants; and
(b) The parties’ employees, contractors or agents who need-to-know the Confidential Information, provided those persons have been made aware of the obligations of confidentiality under the DNS Contract and agreed to comply fully with those obligations.
10. INTERNET COMMUNICATIONS
IT Live will communicate with You via email. Electronically transmitted information cannot be guaranteed to be secure or error free and it can be adversely affected or unsafe to use. IT Live will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, but IT Live will not be liable for any error or omission arising from or in connection with the electronic communication of information to You.
11. INTELLECTUAL PROPERTY
11.1. Customer Intellectual Property remains the property of Customer and / or its licensors. The Customer grants IT Live a non-exclusive, non-transferable licence to use the Customer Intellectual Property for the sole and exclusive purpose of supplying the Domain Name Services to the Customer, for the Term of the DNS Contract. This licence does not convey title or grant any rights of ownership in Customer Intellectual Property to IT Live.
11.2. IT Live Intellectual Property remains the property of IT Live and / or its licensors. IT Live grants the Customer a non-exclusive, non-transferable licence to use the IT Live Intellectual Property for the sole and exclusive purpose of supplying the Domain Name Services to the Customer, for the Term of the DNS Contract. This licence does not convey title or grant any rights of ownership in IT Live Intellectual Property to the Customer. IT Live may, at its sole discretion, create new or derivative IT Live Intellectual Property, or amend, modify, alter, add to, or remove from, the IT Live Intellectual Property when providing the Domain Name Services.
11.3. Except as expressly provided in these terms and conditions, neither party shall have any right to use, copy, modify, reverse engineer, transfer, licence, distribute, lease or otherwise deal with any Intellectual Property owned by the other party.
12. REGISTER AND REGISTRY
12.1. The details shown in the register is treated as the correct record.
12.2. In order to have the Domain Name, it is necessary that the Registry store Your Personal Information on the register.
12.3. When the Domain Name is no longer registered in Your name, the Registry will continue to store Your Personal Information (“Historical Personal Information”). Historical Personal Information may only be disclosed where authorised or required by the register’s governing law.
12.4. To the extent GDPR applies, EU registrants have the right to object to the Registry storing historical Personal Information and/or disclosing it as authorised or required by the register’s governing law.
12.5. Despite clause 12.4, pursuant to Article 21 of GDPR, the Registry maintains that it has compelling legitimate grounds for storing an historical auditable record of all domain names and disclosing Historical Personal Information as authorised or required by New Zealand law. This is because without carrying out these functions, the integrity and operation of the Register would be significantly undermined.
13.1. DNC is the entity which regulates the .nz domain name market space.
13.2. Through the Query Service, the public is able to access the register with respect to a particular domain name from DNC’s website. Subject to the Individual Registrant Privacy Option (“IRPO”) referred to in clause 13.7 below, in response to a Query, registrants’ Personal Information will be available (along with the domain name, its commencement and expiry dates and addresses/details of the name servers for it, and Our name).
13.3. When a name is cancelled it holds a pending release status. During the pending release period of 90 days from date of cancellation, a Registrar may fully re-instate the domain name for the registrant, so that it becomes active again. This means that Your Personal Information remains viewable on the Query Service for that 90 day period. Following the 90 day period when Your name is released, Your Personal Information will no longer be disclosed on the Query Service.
13.4. To the extent GDPR applies, EU registrants have the right to object to their Personal Information being made available through the Query Service. However, pursuant to Article 21 of GDPR, DNC maintains that it has compelling legitimate grounds for disclosing the Personal Information on the Query Service. This is because without the Query Service, the integrity of the .nz domain name space would be significantly undermined.
13.5. For the avoidance of doubt, by entering into the DNS Contract, You hereby give consent to Your Personal Information being made available on the Query Service.
13.6. To the extent GDPR applies, EU registrants have the right to withdraw their consent under clause 6.5. However, any withdrawal of consent is without prejudice to DNC’s position that it has a legitimate interest in disclosing the Personal Information on the Query Service.
13.7. The IRPO is an optional feature available for individuals who are not using the Domain Name it is applied to in significant trade. If You are eligible and choose to use IRPO, Your telephone number and contact address information will not be disclosed on the Query Service (“Withheld Data”). If You use Your Domain Name for significant trade purposes You will not be eligible for the IRPO (see section 8 of .nz Operations and Procedures policy for further details).
13.8. Despite clause 13.7, Withheld Data may be released in the following circumstances:
(a) Where applications are made by any person, entity or organisation who have established a legitimate need for the Withheld Data (see sections 22.2-22.22 of .nz Operations and Procedures policy);
(b) Where disclosure is ordered by a court of competent jurisdiction or is required by any other order with the force of law (see sections 22.23-22.24 of .nz Operations and Procedures policy); and
(c) Where an entity has a Memorandum of Understanding with DNC, such that the entity has automatic access, or alternatively streamlined access, to the Withheld Data (see sections 22.25 to 22.40 of .nz Operations and Procedures policy).
13.9. To the extent that GDPR applies, EU registrants, who are eligible for the IRPO, have the right to object to Withheld Data being disclosed in the circumstances described in clause 13.8. However, pursuant to Article 21 of GDPR, DNC maintains that, based on the Privacy Act 2020 (and in particular Principle 11) it has compelling legitimate grounds to disclose Withheld Data on these circumstances.
14. REGISTRATION OF A DOMAIN NAME
14.1. In order for IT Live to provide the Domain Name Services, IT Live requires the collection of information, including some Personal Information, from You. In order to have a Domain Name registered in Your name, this information must be entered into the register (see clause 12 for more details regarding the register).
14.4. By entering into each DNS Contract, You consent to provide Us with the following Personal Information:
(d) Country; and
(e) Phone number.
14.5. While You have the right to withdraw Your consent to providing Us with your Personal Information, without this Personal Information We cannot perform Our obligations under the DNS Contract (including registering and maintaining a Domain Name for You) because:
(a) The Personal Information is necessary in order for Your Domain Name to be recorded on the register;
(b) We need to be able to contact You in relation to the administration of the Domain Name; and
(c) We are required by DNC policies to collect Your Personal Information.
14.6. If You decide to transfer management of Your Domain Name to another registrar, or if Your Domain Name is cancelled, or if the DNS Contract ends for any other reason, We will continue to store Your Personal Information for a period of not less than 6 years for limitation and tax administration purposes.
15. EXCLUSION OF LIABILITY
15.1. Notwithstanding anything else in the DNS Contract, to the maximum extent permitted by applicable law, We shall not be liable for any loss, damages, claims, costs or other amounts whatsoever (including, without limitation, lost revenues, loss of business profits, business interruption, loss of business information, or other pecuniary loss, or any direct, indirect, special, incidental, punitive, exemplary or consequential damages of any nature) arising out of or in relation to the Domain Name Service or the DNS Contract, even if We have been advised of the possibility of such damages, except where We have acted in bad faith.
15.2. The exclusion in clause 15.1 applies for the benefit of:
(a) InternetNZ, the Registry and any other entity We are in any business relationship with;
(b) Every officer, employee, contractor, agent of us or any entity in clause 15.2(a); and
(c) Anyone else We get to perform Our duties under any DNS Contract You have with Us.
15.3. None of the persons specified in clause 15.2 above is liable or has to pay You for anything else in connection with or resulting from anything any of Us does or does not do, or delays in doing, whether or not it is contemplated or authorised by any DNS Contract you have with Us.
15.4. This exclusion in clause 15.1 applies whatever You are claiming for and in whatever way liability might arise, provided however that this exclusion does not prevent You getting a court order requiring Us to do anything We have agreed to do for You and does not limit any rights You may have (if any) under the Consumer Guarantees Act 1993.
16. LIMITATION OF LIABILITY
16.1. We have excluded all liability We or any of the persons specified in clause 15 may have to you. If We or any of those persons is ever liable to you and, for any reason, cannot rely on the exclusion of liability set out in clause 9 then this clause applies. If We and/or any of the persons specified in clause 15.2 are liable for any loss, damages, claims, costs or other amounts arising from or in relation to the Domain Name Services or a DNS Contract (including, without limitation, for breach of any obligation (statutory, express or implied) relating to the Domain Name Services or a DNS Contract (whether in contract, tort (including negligence), equity, statute or otherwise), the maximum aggregate liability of Us and the persons specified in clause 15.2 shall be limited to the total amount of Domain Name Service Charges paid by You for the applicable Domain Name Service in the month preceding the event giving rise to the liability.
16.2. No claim arising out of a DNS Contract, regardless of form, may be brought by You more than one year after the event that gave rise to that right of claim.
17. SUSPENSION OF DOMAIN NAME SERVICES
17.1. IT Live may suspend, disconnect or discontinue the Domain Name Service in whole or in part at any time without notice if, in IT Live’s reasonable opinion:
(a) It is necessary to safeguard the provision of the Domain Name Service and the integrity of the Domain Name Service, the IT Live Equipment or the IT Live System;
(b) The Domain Name Service, IT Live Equipment or the IT Live System requires urgent modification or maintenance;
(c) Security situations (for example a DDoS attack on a server) threaten the stability of the IT Live System;
(d) There is or has been unauthorised, unlawful or fraudulent use of the Domain Name Service or the Customer’s use of the Domain Name Service is causing or may potentially cause damage or interference to the IT Live System;
(e) It is necessary to comply with a direction, order or request of any governmental authority or other competent authority; or
(f) The Customer fails to comply with the terms of the DNS Contract, including failing to pay Our Domain Name Service Charge for a Domain Name registered to the Customer.
17.2. Should IT Live need to suspend a Domain Name Service in accordance with clause 17.1, IT Live will advise the Customer as soon as practical.
18.1. IT Live may at any time terminate a DNS Contract by giving not less than one (1) months’ written notice to You.
18.2. Subject to clause 6.6, if You do not pay Our charges for the Domain Name Services, We may cancel the registration of the Domain Name and You will not be able to use that Domain Name for the remainder of the minimum registration period, provided however that We will give You fourteen (14) day’s written notice before We initiate action to cancel the Domain Name.
18.3. IT Live reserves the right to immediately terminate a DNS Contract prior to completion of the Domain Name Services by giving written notice to the Customer if:
(d) Any secured creditor of the Customer takes any steps to exercise its rights in relation to the Customer’s assets, or the Customer becomes or is deemed to become insolvent, bankrupt or unable to pay its debts in the ordinary course of business, goes into liquidation, has a receiver or statutory manager appointed in respect of it or any part of its assets, or makes any assignment to, or enters into an arrangement for the benefit of, its creditor;
(e) Required or permitted by any terms, policies or orders of any regulatory authority or industry body that regulates the registration and use of the Domain Name(s) You have chosen; or
(f) In response to an order from a court of competent jurisdiction, or arbitration award; or in the event Our arrangements with Our Domain Name Service provider(s) end for any reason and We are unable, or it is no longer viable for Us, to continue to provide the Domain Name Services.
18.4. The parties acknowledge and agree that:
(a) Termination of a DNS Contract under this clause 18 does not affect the validity of (nor does it terminate) any other DNS Contract(s); and
(b) A breach only gives rise to a right to terminate the particular DNS Contract under which the breach occurred.
18.5. If a DNS Contract is terminated prior to completion of the Domain Name Services, the Customer shall (subject to clause 2) pay to IT Live all Domain Name Service Charges accrued up to the date of termination.
18.6. On expiration or termination of all current DNS Contracts, each party shall immediately cease to use the other party’s Confidential Information and shall, if requested:
(a) Return the other party’s property including Confidential Information; or
(b) At the option of the other party, destroy and certify in writing to the other party the destruction of all of that party’s Confidential Information.
18.7. Termination of a DNS Contract will be without prejudice to any accrued rights or remedies of either party.
19. DISPUTE RESOLUTION
19.1. The parties agree to use their best efforts to resolve any dispute which may arise under a DNS Contract through good faith negotiations.
19.2. Either party may raise a dispute by written notice to the other party setting out details of the dispute. However, to the extent legally permitted, any claim or dispute arising out of or in connection with a DNS Contract must be instituted within 60 days from the date the relevant Domain Name Service was supplied.
19.3. On receipt of a dispute notice the parties’ authorised representatives shall meet (or otherwise communicate, if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis within ten (10) Business Days of the date of the notice.
19.4. If the dispute is not resolved under clause 19.3 within ten (10) Business Days from the commencement of negotiations under clause 19.3, then the dispute shall be escalated to the parties’ respective chief executives (or equivalent).
19.5. Where escalation occurs, the parties’ chief executive officers (or equivalent) shall meet (or otherwise communicate if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.
19.6. If the dispute is not resolved under clause 19.5, the parties may (by written agreement) agree to attempt to settle the dispute by mediation. If the parties agree to mediate, the parties shall appoint a mediator agreed by the parties, or if there is no agreement on the mediator within ten (10) Business Days of the parties agreeing to mediation, the mediator will be appointed by the President of the New Zealand Law Society or his/her nominee. Before mediation commences, the parties and the mediator shall sign a mediation agreement. The cost of the mediation will be shared equally between the parties or as the mediator otherwise directs.
19.7. If the parties do not agree to mediation, or if after mediation has been attempted, the parties remain unable to reach a satisfactory outcome, then the dispute shall be referred to arbitration, provided that neither party shall commence any arbitration in relation to a DNS Contract unless ten (10) Business Days have passed since the parties’ respective chief executive officers (or equivalent) have met (or otherwise communicated) and endeavoured to resolve the dispute in good faith and on mutually acceptable terms under clause 19.5. Arbitration shall occur pursuant to the Arbitration Act 1996, before a single arbitrator. In the event that the parties cannot agree upon an arbitrator, then an arbitrator shall be appointed by the President of the New Zealand Law Society.
19.8. In the event of a dispute between the parties under a DNS Contract, the parties shall continue to perform their obligations under all DNS Contracts as far as possible as if no dispute had arisen, pending the final settlement of any matter referred to dispute resolution pursuant to this clause 19.
19.9. Nothing in this clause 19 shall preclude either party from taking immediate steps to seek urgent equitable relief.
20. GENERAL PROVISIONS
20.1. Entire agreement: Each DNS Contract forms the entire agreement between the parties relating to the supply of the specific Domain Name Services forming the subject matter of the DNS Contract. Each DNS Contract replaces and supersedes any previous proposals, correspondence, agreements, understanding or other communications (whether written or oral) between the parties in relation to the specific Domain Name Services covered by that DNS Contract.
20.2. Force Majeure: Except for an obligation to pay money, neither party will be liable for any act, omission or failure to fulfil its obligations under a DNS Contract to the extent that such act, omission or failure arises from an event of Force Majeure reasonably beyond its control.
20.3. Non-solicitation: The Customer shall not, during the Term and for a period of twelve (12) months after termination of all DNS Contracts, either directly or indirectly and whether on their own account or on behalf of or in conjunction with any other person, employ or engage (or attempt to employ or engage) any employee or contractor of IT Live who has taken part in the performance or supply of a Domain Name Service.
20.4. Indemnity: The Customer shall at all times indemnify and hold harmless IT Live and its employees, agents, consultants, contractors, nominees and similar from and against any claims, losses, damages, costs (including legal fees on a solicitor – client basis) or liability incurred or suffered where such claim, loss, damage, cost or liability was caused by a breach by the Customer of its obligations under the DNS Contract (including a failure to pay money when due).
20.5. Waiver: No waiver, extension or excuse (as the case may be) shall be deemed to arise unless it is in writing and signed by an authorised representative of the party providing it. No delay, neglect or forbearance by either party in enforcing any provision of a DNS Contract will be a waiver, or in any way prejudice any right of that party. However, the rectification of any given instance of a breach of the DNS Contract by the breaching party shall operate as a waiver in respect of that particular instance rectified.
20.6. Exclusions: To the maximum extent permitted by law, the parties agree that where the Domain Name Service is being obtained for business purposes by the Customer, the Consumer Guarantees Act 1993 and Sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply to the DNS Contract or the supply of the Domain Name Service to the Customer.
20.7. Survival: The covenants, conditions and provisions of these terms and conditions which are capable of having effect after expiration or termination of all DNS Contracts shall remain in full force and effect following expiration or termination, including, without limitation, clauses 4 (Customer’s Responsibilities), 8 (Customer Obligations), 12 (Register and Registry), 19 (Dispute Resolution), 20.4 (Indemnity) 20.8 (Governing Law), 20.13 (Severability) and this clause 20.7 (Survival).
20.8. Governing law: To the extent legally permitted, all our Domain Name Services and each DNS Contract is governed by and shall be construed in accordance with the laws of New Zealand, excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods). Except as otherwise agreed, You irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand.
20.9. Relationship between the parties: Nothing express or implied in the DNS Contract shall constitute either party as the partner, agent, fiduciary, employee or officer of, or as a joint venture with, the other party and neither party shall make any contrary representations to any person or incur any liabilities on behalf of the other, except to describe the Domain Name Services in a manner consistent with an agreed DNS Contract, or otherwise with the other party’s prior written consent.
20.10. Subcontractors: IT Live reserves the right to engage subcontractors, and any reference to its staff includes subcontractors. Subject to these terms and conditions, IT Live will remain liable to the Customer for any of the Domain Name Services that are provided by any subcontractor.
20.11. Variations: Subject to clause 2, variations to a DNS Contract may be agreed in writing between the parties, and any such variations shall form part of the DNS Contract.
20.12. No reliance: The Customer acknowledges that it has had the opportunity to take its own specialist advice on the DNS Contract, and the Domain Name Services (including technical and legal advice) and relies solely on its advisors, save for any documented representations made by IT Live in the DNS Contract. IT Live accepts no liability for any claim relating to or arising from any representations, conduct, warranties, conditions or agreements made by any agent or representative of IT Live, which is not expressly confirmed by IT Live in the DNS Contract.
20.13. Severability: If any provision of a DNS Contract is held to be invalid, illegal or unenforceable, such provision will be severed from the DNS Contract and the remainder of the DNS Contract will remain in full force and effect.
20.14. Services not exclusive: IT Live will not be prevented or restricted by anything in any DNS Contract from providing services to other persons.
20.15. Notices: Notices may be delivered by hand/courier or by email to the recipient’s physical or email address, marked for the attention of the party’s nominated person, to the addresses specified in the Proposal (or any other address advised in writing from time to time). Notices will be deemed received:
(a) If the notice is hand delivered or delivered by courier, on the day of delivery; or
(b) If the notice is sent by email, in accordance with section 214 of the Contract and Commercial Law Act 2017 (Receipt of Electronic Communications).
20.16. Assignment: IT Live may assign any of its rights and responsibilities under a DNS Contract to any Related Company. The Customer may assign, transfer or novate its rights and responsibilities under a DNS Contract with the prior written consent of IT Live (which shall not be unreasonably withheld).
21. DEFINITIONS AND INTERPRETATION
In these terms and conditions, unless the context indicates otherwise:
Business Day means Monday to Friday, other than any public holiday within the meaning of the Holidays Act 2003, and any days between 24 December – 5 January (inclusive);
Confidential Information means any information (in any form, whether written, electronic or otherwise), disclosed or communicated by a party to the other, or accessed by the other party in relation to the Domain Name Services including, without limitation:
(a) Information relating directly or indirectly to the finances, strategies, management or business operations of either party or its suppliers or customers;
(b) Information disclosed by either party on the express basis that such information is confidential;
(c) Information or material proprietary to or property of either party, including Intellectual Property, software, source codes, user manuals, programming manuals, flow-charts, drawings, models, drafts (including all working papers and electronic files for any Domain Name Service engagement, which remain Our property), diagrams;
(d) Trade secrets and all technical information, know-how, operating procedures, processes, business methods and other information created by, belonging to or developed by either party; or
(e) Information which might reasonably be expected by either party to be confidential in nature;
provided that, where information relates exclusively to one party, nothing in these terms and conditions shall require that party to maintain confidentiality in respect of that information.
Commencement Date means, in respect of each DNS Contract, the date on which the Domain Name Services are to commence (as recorded in the Proposal or otherwise agreed by both parties), or if no commencement date is specified, then on the date the Proposal is signed or otherwise agreed by the parties;
Customer, You or Your means the customer that has requested the Domain Name Services, as recorded in the Proposal;
Customer Intellectual Property means all pre-existing Intellectual Property of the Customer, including Intellectual Property in records, documents, reports, systems information, business process information, and other proprietary Intellectual Property of the Customer;
Customer Systems means the information technology systems, equipment (both server and client), hardware, software, network requirements and applications of the Customer;
DNC means the Domain Name Commission Limited, trading as Domain Name Commission;
DNS Contract means the binding contract between the parties for the supply of the Domain Name Service, comprising:
(a) These standard terms and conditions; and
(b) The Proposal.
Domain Name means the domain name to be registered by IT Live for the Customer as part of the Domain Name Services;
Domain Name Service(s) means the Domain Name service or services provided by IT Live to or for the Customer under a DNS Contract;
Domain Name Service Charges means the fees payable by the Customer for the Domain Name Service as set out in a Proposal, and includes any disbursements or expenses incurred by IT Live in the course of providing the Domain Name Service. Unless otherwise specified, Domain Service Charges include GST and Tax;
Force Majeure means, in respect of any party, any act, event or cause beyond the reasonable control of that party, including:
(a) An act of God, explosion, fire, flood, storm, lightning, earthquake, subsidence, nuclear fusion or other disaster;
(b) Act of public enemy, war (declared or undeclared), terrorism, revolution, riot, military operations, government restraint, expropriation, prohibition, substantial intervention or change of legislation, regulation or policy;
(c) Strike, lock-outs or other labour difficulty;
(d) Malfunction, fluctuations or supply failures for electrical power, heat, light or water, internet or data, equipment failures, transportation stoppages or slowdowns, or the inability to procure equipment, services, applications, parts or materials;
GDPR means the General Data Protection Regulation ((EU) 2016/679) issued by the European Parliament and the Council of the European Union;
GST means goods and services tax as defined in the Goods and Services Tax Act 1985, at the rate prevailing from time to time;
Intellectual Property means all rights conferred under statute, common law and equity in and in relation to copyright, inventions (including patents), registered and unregistered trade-marks, registered and unregistered designs, circuit layouts, trade names, logos, concepts, methods, know-how, trade secrets, software products and all other intellectual property rights of any nature anywhere in the world, statutory or otherwise, whether registered or not;
IT Live means IT Live Limited;
IT Live Equipment means any computer (including both server and client hardware), communications or other equipment used by IT Live for providing the Domain Name Services;
IT Live Intellectual Property means all Intellectual Property forming part of, or arising from or in relation to, the Domain Name Services, but excludes Intellectual Property in Customer Intellectual Property;
IT Live System means the information technology systems, IT Live Equipment, software, network and applications of IT Live;
Personal Information means information about an identifiable person, including a person’s name, email address, address, country, phone number, date of birth, occupation, driver’s license details, previous credit applications, and credit history;
Proposal means a proposal, engagement letter, quotation, or other document or correspondence (including email) prepared by IT Live, that describes the Domain Name Services to be supplied to the Customer by IT Live;
Query Service means the domain name registration data query service provided by DNC (see section 21 of .nz Operations and Procedures policy for further details);
Registry means the authoritative database of domain names. In the case of .nz domains, the register is operated by the registry branch of InternetNZ;
Related Company has the meaning set out in section 2(3) of the Companies Act 1993;
Tax means taxes (except for GST), levies, imposts, deductions, charges, withholdings, duties or similar charges (including, without limitation, resident withholding taxes or import duties), together with any related interest, penalties, fines and other statutory or regulatory charges;
Term has the meaning set out in clause 1; and
User means any and all persons authorised or enabled by the Customer to access or use the Domain Name Services.
In these terms and conditions, unless the context indicates otherwise:
(a) References to parties means the parties to the DNS Contract, and shall include their successors, permitted assigns and transferees (as the case may be). A reference to “party” means any one of the parties. Words denoting a gender shall include all other genders;
(b) References to persons include references to any natural person, company, corporation, partnership, firm, joint venture, association, trust, organisation, society, or other group or association of persons (whether incorporated or not), governmental or other regulatory bodies or authorities or semi-governmental body or agency or other entity, in each case whether or not having separate legal personality;
(c) The meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(d) Singular words include the plural and vice versa, and where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(f) If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusively of that day;
(g) Any references to any times or dates are references to New Zealand Standard Time;
(h) Headings are for convenience only and do not affect the interpretation of the DNS Contract, except for use as cross-references; and
(i) Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing.
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