The Domain Availability Checker (DAC) is restricted to registration agents who also have Nominet membership and allows them to make higher volume queries about domain name without getting all the information that would be provided in a whois response.
1. Interpretation
1.1. In this contract words written in bold have a special meaning:
1.1.2. the other word with a special meaning is:
contract (i) these terms, (ii) 'The Definitions and Interpretation Terms’ (see clause 1.1.1)
and (iii) the credit and payment terms.
2. Grant
2.1. On the terms of this contract and subject to the policy, you may use our DAC system and provide data from it to end users.
2.2. Only domain names for which we supply whois responses generally will receive a valid response to a query. A list of the domain names we provide whois responses for is set out in the whois1 terms of use. We may in the future be able to increase the range of domain names for which we will provide a query response: if this is possible, but the information is sourced from a third party (because, for example, it relates to a second level domain we do not operate), we may make (on giving 30 days notice on our website) such reasonable changes to this contract as are necessary to effect such an expansion of the DAC.
3. Limits and Method of Use
3.1. In our policy we specify the limit for DAC use and the limit applies to you unless we reasonably decide that your particular circumstances justify the setting of a different limit specific to you.
3.2. We aim to notify you of any changes to the limit or policy in advance but this may not always be possible when dealing with urgent abuse.
3.3. You must not exceed your limit, but if despite this you do exceed your limit;
3.3.1. we shall, in accordance with the policy, slow responses to queries, or ignore or block some or all queries; and
3.3.2. if you exceed your limit on multiple occasions, or seriously exceed your limit on one or more occasions, we may suspend or cancel this contract in accordance with clause 6.2.
3.4. We will publish guidance for users of the DAC on our website which will specify in what form and how queries to the DAC can/should be made. You must try to comply with that guidance in your use of the DAC. If you do not comply with the guidance, our systems may not recognise or respond to your queries and consistently submitting incorrect queries may be deemed as abuse.
4. Payment
4.1. We will charge for the provision of this service in line with our fees policy. The current fee is stated on our fees schedule on our website.
4.2. If we determine that the fee or method of charging should change to better reflect the need to fairly distribute the cost of providing the services amongst the users, we will notify you and if you do not accept the change of fee and notify us of that non-acceptance within 21 days the contract will end and you will not have to pay the new fee.
4.3. The credit and payment terms are incorporated in this contract as if set out in full (they are available on our website).
5. Use of register data
5.1. The data returned from a DAC query is sourced from the register in which we have the intellectual property rights.
5.2.1. compile and store a list of .uk domain names together with their expiry date or other data from the DAC query and (optionally) use that list for providing services to your existing clients or for monitoring the availability of .uk domain names on your own behalf or on behalf of another provided that the information is passed to them on contractual terms that (a) prevent them from further distributing the data and (b) prevent any use of the data by them in a way that this contract or the general law prevents you doing yourself; or
5.2.2. in response to a query from an existing or potential customer;
5.2.2.1. confirm whether a particular domain name is available to register; and/or
5.2.2.2. confirm whether similar alternative domain names are available to register.
5.3.1. use the information to assist of any process or activity that has the object or effect of copying a whole or substantial part of the register or a sub-database of it (e.g. a database containing only information released under the whois);
5.3.2. use the information in as part of any process or activity which has the object or effect of using any of our systems or services in a way which makes it harder (or impossible) for us to spot abuse or a breach of our policy or which circumvents or reduces the effectiveness of any copy-protection device or process we have or operate;
5.3.3. use the information to market to new customers with whom you have no pre-existing relationship;
5.3.4. represent (either directly or indirectly) to any person (unless true) that you are us, or are acting on our behalf or with our authority in any way;
5.3.5. represent (either directly or indirectly) to any person (unless true) that you are a registry, official body (whether governmental or otherwise), the controller of .uk, responsible for the operation or any part of the operation of .uk or its second level domains;
5.3.6. provide more than an insubstantial part of the register information to a third party or end user;
5.3.7. represent (either directly or indirectly) that the data came from a source other than us; or
6. Service Levels, Prevention of Abuse, Anti-avoidance measures
6.1. We aim to provide our services in a neutral and impartial way, and we have obligations to protect the information on the register. Accordingly we will have, and update from time to time, a policy which will set out what constitutes abuse and how it can be dealt with, including details of;
6.1.1. levels of acceptable use (including the limit);
6.1.2. acceptable or unacceptable uses of the services we provide under this contract;
6.1.3. acceptable or unacceptable uses of the data derived or obtained from the services we provide under this contract;
6.1.4. activities which are banned because they provide or may provide unfair advantages to particular users or which involve co-operation between users in an attempt to secure an advantage;
6.1.5. activities which are banned because they endanger or may endanger our system(s) or which may compromise the service we can provide generally to users;
6.1.6. obligation to require users to declare to us any affiliations they may have with other users;
6.1.7. obligations on users to require them to provide us with reasonable evidence if they are reasonably suspected of abuse;
6.1.8. how the policy is to be enforced;
6.1.9. what sanctions apply; and
6.1.10. anti-avoidance terms to further restrict abuse.
6.2. You must comply with this contract and the policy. If you do not we may:
6.2.1. terminate this contract under clause 8.4.1;
6.2.3. take such other reasonable action as is specified in the policy.
6.3. If we suspend this contract under clause 6.2.2 we shall notify you within 24 hours of the suspension.
6.5. Despite clause 6.4, our aim is to keep the DAC available and if the DAC is withdrawn for an extended period we will endeavour to explain why and give a non-binding estimate of when it, or an alternative service, is likely to be provided.
7. Third Parties, End Users and Agents
7.1. You may not assign or subcontract any of your rights and obligations under the contract without our prior written consent.
7.2. We will hold records of your identity, and any contacts relevant to the service being provided. You will ensure that every contact consents to us holding the information. It is your duty to keep us updated on whom you wish us to accept instructions from.
7.3. If you are issued with or have an identifier (e.g. a password, token, personal information or code) for use with us or our systems you must keep it secret and safe because we shall be allowed to assume that any action done or requested using that identifier or a product of it was done or requested by you or by someone authorised to act for you and we shall have, and be entitled to enforce, procedures for dealing with lost, revoked or compromised identifiers.
8. Suspension, Termination and Revision
8.1. This contract begins on the date that we notify you that we have accepted your application to use the DAC and continues indefinitely unless terminated, or suspended, in accordance with the contract.
8.2. Either party may terminate this contract by notifying the other party not less than one month in advance.
8.3. If your registration agent agreement and/or your membership of Nominet UK is terminated for any reason, this contract will terminate automatically without need for us to notify you. If all your IPSTAGs are suspended or blocked from making chargeable transactions, this contract may be suspended without need for us to notify you.
8.4. (Without altering clause 6.2), either party may terminate or suspend this contract by notifying the other if the other:
8.5. Where either party (being a body corporate) has ceased to exist, or (being an individual) has died, the duty to notify under clause 8.4.2 is waived.
8.6. Any termination, suspension or expiry of the contract will not affect any accrued rights of action of either party, nor will it affect the coming into force or continuation in force of any provision of this contract which is expressly, or by implication, intended to come into or continue in force on or after termination or expiry.
8.7. Any termination, suspension or expiry of the contract will not affect the application to or validity of the ‘Definitions and Interpretation Terms’ (clause 1.1.1) or the credit and payment terms in relation to any other contract in which they are incorporated.
9. Accuracy, and Exclusions of Liability
9.1. We are entitled to change the register records at any time.
9.3. Subject to clause 9.2;
9.3.1. all representations, and all warranties, whether express or implied by statute, law or otherwise, relating to the operation of the DAC and the data in it are excluded to the maximum extent permissible by law; and
9.3.2. we will not have any liability whatsoever to you or any third party to whom you relay results as a result of any failure or inaccuracy, delay or error in the operation of the DAC or the information from it.
9.4. Subject to clause 9.2, we will in no event (whether in contract, tort or otherwise) be liable for;
9.4.1. any loss of revenue;
9.4.2. loss of profits;
9.4.3. loss of goodwill;
9.4.4. loss of data; or
9.4.5. indirect or consequential loss
suffered by you or the end user, and arising out of this contract or your use or provision of the DAC.
10. Intellectual Property and Relationship of the Parties
10.1. Neither this contract, nor action taken by the parties in accordance with it, creates or will be deemed to have created a partnership, association, joint venture or other co-operative entity between the parties. Neither party shall have any authority to bind the other in any way.
10.2. As a confirmatory assignment you assign to us any intellectual property rights you have in the register (if any).
11. General
11.1. If either party cannot perform any of its contractual obligations as a result of events beyond its reasonable control, then such party will not have to perform that obligation for the duration of the relevant event.
11.2. This contract is the entire contract between you and us in relation to their subject matter and supersedes all prior agreements, arrangements and understandings between the parties relating thereto. For clarity, nothing in this contract shall operate to terminate or amend any registration agent agreement, or contract in relation to the whois1, whois2, prss or other service provided by us to you.
11.3. No forbearance or delay by you or us in enforcing the provisions of the contract will prejudice or restrict its rights, nor will any waiver of any right operate as a waiver of any subsequent breach.
11.4. Neither party may assign this contract or any rights or obligations arising from it.
11.5. We may make reasonable changes to the terms of this contract from time to time after discussion with our Policy Advisory Board (or any similar body supplementing or replacing it) and after consultation with the user group for this service. We will notify you at least 30 days before the changes take effect. We will only make changes if there is a good reason for doing so and no change will take away the protection you receive under clause 4.2 from price changes.
11.6. The contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts, save in matters of enforcement of the judgement of an English court, where the parties submit to the non-exclusive judgement of the English court.