1.
Interpretation
1.1.
In
these terms and conditions, unless the context clearly indicates otherwise,
1.1.1.
"Agreement" means the Application read together with these
terms and conditions;
1.1.2.
"Applicant" means the party making application for the
registration or update of its Domain Name in terms of this Agreement and may
apply to either or both the owner of the domain being registered and the
Internet Service Provider or Domain Broker aiding the owner in the registration
of the domain;
1.1.3.
"Application" means the application for the registration or
update of a Domain Name submitted by the Applicant and to which these terms and
conditions apply;
1.1.4.
"Domain
Name" means
domain names in the ".co.zw" namespace of the Internet, including all
other subdomains of ".zw" that are administered by ZISPA;
1.1.5.
"effective
date" means, in
respect of the registration or update of a Domain Name, the date on which such
registration or update is registered by ZISPA (as evidenced by an electronic
message from ZISPA to Applicant confirming same), provided that ZISPA receives
payment of the fees in respect of such registration or amendment within the
period contemplated in clause 3;
1.1.6.
"ZISPA" means Zimbabwe Internet Service Providers
Association;
1.2.
Clause
headings are for convenience and are not to be used in interpretation of this
Agreement.
2.
Assignment
of Domain Names
ZISPA is responsible for assigning domain names in
the ".co.zw" namespace of the Internet. These terms and conditions
apply to the use and registration of Domain Names.
3.
Fees
3.1.
Applicant shall, within 30 (thirty) days of
submitting its application, pay the then current fee in respect thereof, as
determined by ZISPA from time to time. In addition, Applicant shall, within 30
(thirty) days of the anniversary of the effective date pay an annual maintenance
fee, as determined and published by ZISPA from time to time, in respect of the
Domain Name registration.
3.2.
Should applicant fail to pay any of the fees
contemplated in this clause 3 within the periods stated herein, ZISPA may,
without derogating from any other right which it may have in terms of this
Agreement or otherwise, and without notice, de-register the Applicant's Domain
Name.
4.
Registration
of Domain Names
4.1.
ZISPA shall under no circumstances whatsoever be
obliged to determine the right of the Applicant to register a Domain Name.
Domain Names are registered on a "first come, first served" basis and
registration of a Domain Name by ZISPA shall in no way constitute any indication
or warranty of Applicant's right to utilise such name.
4.2.
ZISPA reserves the right not to register a Domain
Name chosen by Applicant, if ZISPA has a bona fide belief that the usage of such
name will be in breach of a third party’s intellectual property rights or may
lead to a situation as contemplated in clause 5.1.
5.
Applicant's Warranties & Indemnity
5.1.
Applicant hereby irrevocably represents, warrants
and agrees as that:
5.1.1.
its statements in the Application are true and
correct;
5.1.2.
it has the right without restriction to use and
register the Domain Name requested in the Application;
5.1.3.
it has a bona fide intention to use the Domain Name
on a regular basis on the Internet;
5.1.4.
the use or registration of the Domain Name by
Applicant does not or will not interfere with, nor infringe the right of any
third party in any jurisdiction with respect to trademark, service mark,
tradename, company name, close corporation name, copyright or any other
intellectual property right;
5.1.5.
the use or registration of the Domain Name by
Applicant is not against public policy, nor is it in contravention of any common
or statutory law;
5.1.6.
it is not seeking to use the Domain Name for any
unlawful purpose whatsoever, including, without limitation, unfair competition,
defamation, passing off or for the purpose of confusing or misleading any
person;
5.1.7.
at the time of the initial submission of the Domain
Name request, and at all material times thereafter, it shall have an operational
name service from at least two operational Internet servers for that domain
name. Each server is and will continue to be fully connected to the Internet and
capable of receiving queries under that Domain Name and responding thereto;
5.1.8.
it has selected its Domain Name without any input,
influence or assistance from ZISPA.
5.2.
Pursuant to the above warranties, Applicant hereby
agrees that it shall defend, indemnify and hold harmless ZISPA, its directors,
officers, members, employees and agents, for any loss, damage, expense or
liability resulting from any claim, action or demand arising out of or related
to a breach of the aforementioned warranties or the use or registration of the
Domain Name, including reasonable attorneys fees on an attorney and own client
basis. Such claims shall include, without limitation, those based upon tradename
infringement, copyright infringement, dilution, unfair competition, passing off,
defamation or injury to reputation. ZISPA agrees to give Applicant written
notice of any such claim, action or demand within reasonable time of becoming
aware thereof. Applicant agrees that ZISPA shall be defended by attorneys of
ZISPA's choice at Applicant's expense, and that Applicant shall advance the
costs incurred in such litigation, to ZISPA on demand from time to time.
6.
Disclaimer
of Warranties
ZISPA gives no warranties of any nature whatsoever
with regard to the Domain Name, the registration or use thereof and hereby
disclaims all such warranties, whether express or implied.
7.
Withdrawal
of Domain Name
Applicant agrees that ZISPA shall have the right to
withdraw the Domain Name from use and registration on the Internet:-
7.1.
in the circumstances contemplated in clause 3;
7.2.
should ZISPA receive an order by any competent
court having jurisdiction that the Domain Name rightfully belongs to a third
party or infringes a third party's rights;
7.3.
should Applicant breach any other provision of this
Agreement, and fail to remedy such breach within 7 (seven) days of receiving
written notice from ZISPA calling upon it to do so;
7.4.
should Applicant not make regular use, as
determined by ZISPA in its reasonable discretion, of its assigned Domain Name
for a period of 90 (ninety) days or more.
8.
Publication
of Information
Applicant acknowledges that all information
provided to ZISPA in the Application may be published by ZISPA on its website at
http://www.zispa.org.zw and Applicant hereby irrevocably and without limitation
consents to the publication of such information.
9.
Disputes
and Refund of Fees
Under no circumstances whatsoever shall ZISPA be
obliged to:-
9.1.
act as an arbiter of disputes arising out of the
registration and use of the Domain Name;
9.2.
refund any fees paid by the Applicant once the
registration or amendment, as the case may be, in respect of which such fees are
paid, has been effected by ZISPA.
10.
Provision of Information
Should ZISPA be presented with evidence that
indicates that a Domain Name registered to Applicant violates the rights of a
third party, ZISPA shall be entitled to provide the complainant with Applicant's
name and address and all further communication will exclude ZISPA and ZISPA will
have no further obligations to the Applicant or complainant.
11.
Limitation of Damages
ZISPA WILL UNDER NO CIRCUMSTANCES WHATSOEVER AND
HOWSOEVER ARISING BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF USE,
BUSINESS INTERRUPTION OR LOST PROFITS), REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, DELICT, OR OTHERWISE, EVEN IF ZISPA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. WITHOUT DEROGATING FROM THE AFOREGOING, ZISPA's
LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT SHALL UNDER NO
CIRCUMSTANCES EXCEED THE REGISTRATION OR AMENDMENT FEE, AS THE CASE MAY BE,
PAYABLE BY APPLICANT.
12.
Jurisdiction
The Applicant hereby consents to the jurisdiction
of the High Court of Zimbabwe sitting in Harare for the adjudication of any
legal dispute between ZISPA and Applicant and these terms and conditions will be
construed and interpreted in accordance with the law of the Republic of
Zimbabwe.
13.
Variation or Cancellation
These terms and conditions may only be varied or
cancelled by Applicant, with the express written consent of ZISPA.
14.
Amendment
of Terms and Conditions
Without derogating from the aforegoing, Applicant
hereby acknowledges that ZISPA may alter, delete or supplement ("amend") these terms and conditions by publishing such
amendments on the ZISPA website at http://www.zispa.org.zw from time to time.
Applicant accepts that it is incumbent on it to monitor such changes and it
hereby agrees that should it fail to notify ZISPA of Applicant's wish not to be
bound by such amended terms and conditions within 30 (thirty) days of such
amendment being published, it shall conclusively be deemed to have acceded and
agreed to the amendments thus published.
15.
Severability
In the event that any of these terms are found to
be invalid, unlawful or unenforceable, such terms will be severable from the
remaining terms, which will continue to be valid and enforceable.