Domain name monitoring services and disputes services are provided by Com Laude’s wholly-owned affiliate, Demys Limited and are subject to the following additional terms as set out below and as updated from time to time:
1. PROFESSIONAL ADVISER. Client acknowledges that the role of Demys is that of professional adviser to Client in brand protection matters and that consequently Demys shall be entitled in its sole discretion to advise that the brand protection services instructed by Client are not appropriate in any given circumstance, in which case Demys shall not be obliged to carry out such services but may if appropriate propose a substitute service to Client which Client may choose to instruct.
2. REPRESENTATION, WARRANTIES AND LIMITATION OF LIABILITY.
2.1 Client represents and warrants that Client has all right, title and interest to cause searches to be carried out on the public internet for instances of brand abuse in respect of the brand(s) provided to Com Laude / Demys.
2.2 THE BRAND PROTECTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, COM LAUDE AND DEMYS MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, TO ANY WARRANTIES OF TITLE, NON-INFRINGMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE BRAND PROTECTION SERVICES OR THE RESULTS TO BE OBTAINED FROM ITS USE. NEITHER COM LAUDE NOR DEMYS WARRANTS THAT THE BRAND PROTECTION SERVICES SHALL BE ERROR-FREE, UNINTERRUPTED, OR SECURE.
2.3 CLIENT ACKNOWLEDGES THAT DATA GENERATED FROM DEMYS’ BRAND PROTECTION SERVICES (THE ‘PLATOFRM’) IS BASED UPON PUBLICLY AVAILABLE INFORMATION, THE ACCURACY OF WHICH IS NOT WARRANTED OR GUARANTEED.
2.4 CLIENT ACKNOWLEDGES THAT THREAT LEVELS AND ASSOCIATED REPORTS ARE AN INDICATION GENERATED FROM MACHINE ANALYSIS OF DEMYS’ AND PUBLICLY AVAILABLE DATA AND USE OF PROPRIETARY TECHNOLOGY, SHOULD BE TREATED AS A GUIDE ONLY TO AREAS OF POSSIBLE CONCERN
2.5 Subject to the conditions set out below, Demys warrants that the brand protection services provided by it will be provided with all reasonable care and skill commensurate with the standard of the reasonably competent online brand protection adviser.
(i) Demys shall be under no liability in respect of any defect in the brand protection services arising from any specification supplied by Client or any delay on the part of Client in responding to Com Laude / Demys or failure of Client to act promptly on Demys advice, in particular but not limited to advice regarding the filing of supplementary submissions in any domain name dispute;
(ii) Demys does not warrant that that any of its brand protection services which are supplied over the Internet will be uninterrupted, secure or error-free and Client acknowledges that this sub-clause is reasonable on the basis that the Internet is a public network of interconnected computers which are subject to unscheduled interruption from time to time;
2.6 Other than expressly provided, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
2.7 Any claim by Client which is based on any breach of warranty or representation (whether express or implied) shall be notified to Com Laude within seven days after discovery of the defect or failure. Neither Com Laude nor Demys shall, unless otherwise provided by statute, be liable to Client in any way if Client fails to notify a claim within that period.
2.8 Except in respect of death or personal injury caused by Demys’ negligence, Demys shall not be liable to Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Demys, its employees or agents or otherwise) which arise out of or in connection with the supply of the brand protection services.
2.9 Except in respect of death or personal injury caused by Demys’ negligence and except as otherwise specifically provided by law, the entire liability of Demys under or in connection with the contract shall not exceed the fees received by Demys in respect of the services complained of in a twelve month period preceding the event complained of.
2.10 Any clause excluding or restricting Demys’ liability applies to Demys and to Demys’ officers, employees, subcontractors, agents and affiliated companies.
3. CLIENT’S WARRANTIES.
3.1 that it has full power and authority, and has taken all necessary corporate action to enable it to effectively enter into these terms and all other terms and documents which may follow, and to enable it to instruct Demys to perform the brand protection services and it does not require the consent approval or authority of any third party to enter into or perform its obligations under these terms;
3.2 that it has all rights in and to the brands, trade marks and domain names which are necessary to entitle Demys to perform the brand protection services that it instructs in accordance with these terms;
3.3 that it will comply with Demys’ reasonable advice and instructions regarding the brand protection services that it instructs in accordance with these terms;
3.4 that its use of Demys’ brand protection services will not infringe the intellectual property or other rights of any third party;
3.5 Client shall comply with any working practices or instructions of operation in connection with the Platform for which Client may be granted access credentials in order to access the Platform;
3.6 Client shall provide Com Laude with such information as Demys reasonably requires in order to provide the brand protection services including, without limitation, details of brands to be searched, information relating to typical threats known by Client to result from the domain name space and data assisting in the identification of false positives in the Platform reporting results;
3.7 Client undertakes to review the results provided by the Platform reporting on a reasonable frequency, no less frequent than the frequency of Platform reporting ordered by Client.
4. CLIENT’S INDEMNITY.
Client indemnifies Demys and Com Laude against all claims, damages, liabilities, costs (including reasonable legal fees) directly or indirectly related to Client’s use of Demys’ brand protection services or Client’s breach of these terms.
5. INCORPORATION OF DISPUTE RESOLUTION TERMS AND CONDITIONS.
5.1 Client acknowledges that it is, and hereby agrees to be bound and to abide by, all present and future terms and conditions, dispute resolution policies and rules of domain name dispute resolution providers applicable to the services to be provided by Demys to Client. Such terms and conditions are available from the relevant provider and/or from Com Laude / Demys on request.
5.2 Demys undertakes to take such reasonable steps on Client’s behalf as are available to Demys in order to ensure that Client complies with the policies described in paragraph (n) above from time to time and Client hereby agrees that Demys may take such steps as might be necessary to ensure such compliance at any time.
Either party may terminate the brand protection services on 90 days’ written notice to the other.
7. ACCEPTABLE USE POLICY.
7.1 Client shall not use, or allow use of, the brand protection services in any of the following manners (“Abuses”) and shall be responsible for any such Abuses if committed by any third party on Client’s behalf: (i) Use of the brand protection services in an unlawful manner or for an unlawful purpose, including display of unlawful content; (ii) Use of the brand protection services in a manner that, in Demys’ discretion, directly or indirectly produces or threatens to produce a negative effect on the Demys network or that interferes with the use of the brand protection services or Demys network by other customers or authorized users, including, without limitation, overloading servers or causing portions of the Demys network to be blocked; (iii) Altering any aspect of the Service where such is not authorized by Demys.
7.2 Demys may suspend provision of the brand protection services, if, in Demys’ reasonable determination, an Abuse occurs. Such suspension shall remain in effect until Client corrects the applicable Abuse. In the event that, in Demys’ reasonable determination, an Abuse is critically impacting, or threatens to impact critically, the Demys network or servers, Demys may suspend provision of the Service, as applicable, immediately and without prior notice. In the event that an Abuse is not critically impacting the Demys network or threatening to do so, Demys shall give Client prior notice of any suspension. Such suspension shall remain in effect until Client corrects the applicable Abuse. Client’s failure to correct any Abuse within ten (10) days after notice from Demys will entitle Demys to terminate the brand protection services without any liability or obligation to provide a refund to Client for any service suspended or terminated.
8. FORCE MAJEURE.
If Demys is affected by any circumstances beyond its reasonable control (including, without limitation, any strike, lock-out or other industrial action) (“Force Majeure”) then it shall promptly notify the nature and extent of the circumstances in question. Notwithstanding any other provisions of these terms and conditions, Demys shall not be deemed to be in breach or otherwise liable to Client, for any delay in performance or non-performance of any of its obligations, to the extent that such delay or non-performance is due to any Force Majeure, and the time for performance of that obligation shall be extended accordingly.