General Conditions of Service of NOMINALIA
General Conditions of NOMINALIA
This agreement is the sole and entire agreement between NOMINALIA and the Client and cancels and supersedes any previously existing agreements by and between them (the Parties) with regard to the object thereof.
1- SERVICES AND CLOSING OF AGREEMENTS:
These General Conditions of Service ("GCS"), together with the additional terms and conditions contained in the existing miscellaneous Service Orders ("SO"), rule the rendering and/or supply to Clients ("Client/s") of the services offered by NOMINALIA Internet, S.L. (hereinafter “NOMINALIA”) with registered domicile at Barcelona, Josep Pla, 2, Torres Diagonal Litoral, Edificio B3, Floor 3D, 08019, Spain. The agreements between NOMINALIA and the Client with regard to the individual Services are considered concluded or closed at the time NOMINALIA receives payment of the Consideration for the Services.
2. IDENTIFICATION AND TERMINATION OF SERVICES
These Terms and Conditions apply to all services offered by NOMINALIA on its Website www.NOMINALIA.com: Domain registration, email, hosting, servers, tools for creation of online store, website development, security tools, online marketing services and Online Brand Protection (OBP, Online Brand Protection), dedicated servers and virtual machines, and premium support services. A detailed description of the services, their contents and functioning, is located on the indicated Website and/or the corresponding Service Order. The duration or term of service contracts, unless it is otherwise provided in the specific conditions of the Service or unless expressly agreed otherwise with the Client, is annual, and annually renewable.
3 - REGISTRATION PROCEDURE - USER ID AND PASSWORD:
Acceptance of these conditions implies the acceptance of the Terms and Conditions imposed by all the Internet domain name regulating organisations (e.g. https://www.icann.org/es).
In the course of completing the Service registration procedures, the Client undertakes to provide his/her personal data accurately and truthfully. The Client undertakes to check this data before confirming registration. Confirmation, as the case may be, must be communicated to NOMINALIA within the 10 calendar days following the date registration. In case that such confirmation is not communicated within the indicated term, NOMINALIA will not be held liable for inaccurate data towards the Client. Such confirmation exempts NOMINALIA from any and all liabilities relating to the data provided by the Client; lack of confirmation will be understood in the sense that the data provided by the Client in the registration process are accurate, complete and truthful; regardless of this the Client undertakes to immediately inform NOMINALIA of changes in the personal data whenever they may occur. In case that NOMINALIA understands that the Client has reported incomplete or inaccurate data, or in case NOMINALIA’s security systems detect that the information supplied by the Client is incomplete or inaccurate or that may lead to a fraudulent use of the Service hired, NOMINALIA reserves the right – once the afore mentioned circumstances have been stated to not activate and/or to suspend the service until the Client rectifies these errors or until the Client delivers the additional information as requested by NOMINALIA in order to activate or resume the Service (whatever may apply).
. NOMINALIA reserves this right even in the case where the competent bodies (e.g. banks or credit card holders) challenge or reject the payments made by the Client. Upon first request for activation of a Service by the Client, NOMINALIA will assign him/her a User ID and Password as the only system for validation of Client access to the Services. The Parties recognize and agree that these User ID's and Passwords are the only adequate means for identifying the Client when he/she accesses the Services. Therefore, the Client agrees that all acts performed throughout the use of the aforementioned User ID and Password shall be attributable to him/her and shall be binding on him/her. The Client recognizes that he/she has sole and exclusive responsibility for the acts performed through use of his/her User ID and Password, and undertakes to keep them secret, safeguard them with due care and diligence, and not to communicate them to third parties, not even on a temporary basis.
In all events, the Client accepts that the information system and/or online system records compiled by NOMINALIA and/or its suppliers, can be presented and used against him/her for all investigation purposes by and r before any competent Authority pursuant to and in accordance with these GCS and that, in particular, the parties may establish appropriate civil evidence on this basis regarding the existence of relationships and/or acts that might be challenged. To this respect, Law 25/2007 and the obligations contained herewith may apply.
NOMINALIA reserves the right to commence legal actions against Users who do not act according to, particularly, the provisions of these Conditions.
The Company cooperates with the Public Authorities in all cases in which the Company is requested to submit information and/or data deemed as necessary to pursue authors, accomplices, concealers, etc. of illegal actions.
Unless otherwise indicated in the regulations that may apply, the Company does not have a general obligation to control the information transmitted or stored; neither is it generally obliged to actively investigate nor search for the existence of facts or circumstances that may reveal the existence of illegal activities. The Company will, in any event, comply with its legal obligations in this regard and reserves the right (for example): to report, without delay, to the Administrative Authorities or to the Courts of Justice which perform control duties, it the Company becomes aware of supposedly illegal activities or information; the right to deliver without delay, upon request of the competent Authority, information in its possession that makes it possible to identify the beneficiary or addressee of the Services, in order to identify and prevent illegal activities; to act promptly in case of a request from a Court or Administrative Authority that obliges he Company to interrupt the Services, and to report, as soon as feasible, to the competent Court or Administrative Authorities if the Company becomes aware of use of the services in a manner that is illegal or harmful to third parties by any Client.
NOMINALIA shall not act as an arbitrator to resolve disputes between the applicant and third parties regarding the use of the domain name.
Case of conflicts involving the attribution of a domain name, the applicant undertakes to follow the rules on conflict resolution established, as appropriate, by ICANN and/or the Registries responsible for the administration of the different domain names, as applicable.
4 / NATURE OF THE SERVICES - FEES AND PAYMENTS:
The valid prices of the services are those advertised from time to time on the NOMINALIA website.
NOMINALIA will not execute any operation on any Order until the proper payment executed according to the Terms and in due time has been received. Payment will be deemed as completed once it has been cleared by NOMINALIA’s bank. This means that if two orders refer to the same domain name, the first order to be paid will be the first Order processed, regardless of the date of the first order. (First paid, first served). The payment of the order shall be executed in accordance with the general Terms and Conditions of payment of NOMINALIA.
Once processing of an order has commenced, NOMINALIA reserves all rights to charge a penalty for the cancellation thereof. Modifications to the order shall be accepted, but an additional modification order must be placed. NOMINALIA shall automatically cancel orders that are not paid within a period of 30 days after receipt.
The Applicant & Client exonerates and undertakes to hold NOMINALIA harmless of any liability vis-a-vis third parties arising from a breach by the client of any of his/her obligations arising from these conditions.
The applicant -client certifies that the information supplied and related with the registrant and personal information of the contacts of the domain name, is true and complete. Likewise, the applicant accepts that he/she is the unique and only person responsible for keeping the information always fully updated.
Notifications will be made according to the data provided by the applicant via e-mail. NOMINALIA shall not be held responsible for the non-receipt of these notifications. The applicant is responsible for reporting NOMINALIA about any modification of the data, particularly changes of contact e-mails.
The duration of the Services is annual, and Services are annually renewable unless otherwise indicated or unless there is an express agreement otherwise..
NOMINALIA may communicate the renewal of services via e-mail and according to the following process: a first notice will be sent approximately one (1) month before the expiry date; a second renewal notice will be sent about 15 days before the expiry date and a definitive cancellation e-mail will be sent on the expiry’s date if payment of the renewal has not been made before this latter date. The e-mail to which these notices are to be sent is the contact e-mail which corresponds to the service in question. It is the Client's responsibility to keep this information up to date and to carry out the renewal. NOMINALIA accepts no liability for problems arising from incorrect contact details nor from failure to renew.
When a domain expires it enters into the Redemption Grace Period (RGP). This period has been implemented by the international registries in order to give the former owner of a domain the chance of recovering it. During this RGP period no one (no third parties) can register such domain. Only the owner may recover the domain name through the Registrar that managed the domain before the RGP.
Once the RGP has elapsed (30 days after expiry date), the domain turns into a PENDING DELETION status that lasts for 5 additional days. During this period, it is not possible to recover the domain. Once this additional term has elapsed, the domain is deleted from the database and can be registered again by anyone.
If, for any reason, payment for renewal is not made during the stipulated period for each Service, the Service will be automatically cancelled by NOMINALIA and will become available for registration by third parties. NOMINALIA shall make the payment refunds by bank transfer to the account number given by the Client or to the client’s credit card, this depending on the means of payment used.
If, for any reason, payment for renewal is not made during the stipulated period for each Service, the Service will be automatically cancelled by NOMINALIA and will become available for registration by third parties. In the case of a domain in the recovery period, after the recovery amount has been paid, NOMINALIA will try to recover the domain before the Registry. However, remember that the recovery process is not always successful. Therefore, NOMINALIA accepts no liability if the domain name is not recovered, in which case it will return the amount paid by the Client.
The renewal upon expiry may be automatic or manual. By default, an automatic renewal is established when taking out the product or service, which the Client can change or revoke at any time during the life of the contract and even after taking out the product or service or change to manual renewal by following the instructions will be sent to him/her in the confirmation of purchase. The Client can change automatic renewal to manual and vice versa as often as desired throughout the life of the contract, provided that the changes are made before the 20 days prior to the date of expiry of contract or service. If this is not done, the renewal shall be made in accordance with the procedure in force or active in the 20 day prior to the relevant date.
Expiration with automatic renewal:
In the case of expiration with automatic renewal and payment by credit card, the prices referred in "Fees and Payments" will be charged 20 days before the expiration date, according to the terms foreseen and based on existing conditions at the time of renewal, as indicated in the Control Panel, by NOMINALIA directly against the credit card account of the Client, with prior notification by e-mail.
In the case of expiration with automatic renewal and payment by PayPal the prices referred in "Fees and Payments" will be charged according to the terms provided and based on existing conditions at the time of renewal, as indicated in the Control Panel, by NOMINALIA directly against the PayPal account of the Client, with prior notification by e-mail.
The Client authorises NOMINALIA to carry out the payment processes described in the two sections above.
If it is not possible for NOMINALIA to make the charge, the contract may not be renewed automatically and shall be considered expired and not renewed according to the terms set forth. In this situation, the Client may renew the Service following the manual renewal procedure. Failure to renew the agreement will lead to loss of all the data see “Expiration with manual renewal” below.
Prices are on the website so that the Client knows the total and final cost of the Service at all times.
To cancel the billing agreement, the Client must enter his or her PayPal profile and cancel it there.
Expiration with manual renewal:
In the case of expiration with manual renewal the Client may request from NOMINALIA, through the online procedure placed at his/her disposal by NOMINALIA, renewal of the service for further periods of time according to the terms appearing in the Client Control Panel and according to the technical and economic conditions in force at the time of renewal. In case of failure to renew under the terms and conditions indicated herewith, the Service will cease with effect as of the expiration date and the Service Order will cease to have effect, all this without any prior communication by NOMINALIA. In this case, all the data present in the space placed at the disposal of the client in order to render the Service will be deleted and NOMINALIA cannot under any circumstance be held responsible, either for failure to maintain and/or either for not to keep such data.
PROVISION OF “TRIAL” SERVICES: NOMINALIA may offer the Client “trial” services for the time and in the manner indicated for each case on the NOMINALIA website or in the Client Control Panel. Depending on the services and at the discretion of NOMINALIA, when purchasing the services, NOMINALIA may or may not ask for the Client’s credit card as a means of paying at the end of the trial period. In order to manage the subsequent payments, the credit card information will be retained by a payment management company that complies with PCI-DDS requirements and with the personal data protection regulations applicable at any time, which acts on behalf of NOMINALIA AT THE END OF THE TRIAL PERIOD, THEREFORE, THE SERVICE IS UNDERSTOOD TO BE PURCHASED BY THE CLIENT FOR A YEAR OR FOR ANY OTHER TIME PERIOD ESTABLISHED IN THE CORRESPONDING SERVICE ORDER, IN CASES WHERE THE CLIENT, AT THE REQUEST OF NOMINALIA, has provided the credit card information at the time of purchasing the "trial" service, expressing an interest in acquiring the service and not having notified NOMINALIA of the change of criteria before expiration of the trial period. In this case, on expiry data of the NOMINALIA trial period will be charged to the Client’s credit card and with intervention of the payment management company for the amount corresponding to the services purchased by the Client.
5. PAYMENT METHODS:
In compliance with the information obligations provided for in the current regulation for the protection of consumers and end users in general, we herewith state that the main features of the services are those described on NOMINALIA’s Website, which is permanently updated. Unless otherwise indicated, prices include taxes and fees and if applicable, all additional transportation costs, delivery, post office fees, return costs or any other that may apply. The minimum term of validity of the contract is one year, unless otherwise agreed or indicated explicitly otherwise, and the Client’s obligations, in addition to legal obligations, are those contained in these general conditions, directly or by reference.
This information is given prior to the execution of payment of the Services therefore in order to close a contract it is necessary to declare (opt in) having read and accepted this information and these Conditions. By clicking the check box corresponding to the Purchase Order, the Client accepts the Service Order or Specific Conditions, as well as these General Conditions, agreeing to pay for the service order with payment obligation.
Payment methods available with NOMINALIA:
- Credit card.
- Bank transfer order.
In order to make credit card payments, the client must provide credit card, debit card or bank account information. NOMINALIA guarantees that all of the bank and credit card details collected in its database will be used in a manner and pursuant to the security measures, limitations and rights established in the prevailing data protection laws.
Generally, payments will be made once yearly, in the absence of a different arrangement.
If the order number is not specified when making the payment where such data is required, NOMINALIA will not be liable for any unwanted consequences.
Payments must be made in due time and according to the terms chosen by the Client. The payment shall be made in euros.
NOMINALIA reserves the right to cancel a registration if the payment has been made by fraudulent means or has not been cleared.
Orders which are not paid within 30 days shall be automatically cancelled without prior notice.
The cancellation of a completed order implies that the payment shall not be refunded.
If you request a transfer to a different Registrar within two months after the expiry date, and this domain was renewed within 20 days of the expiry date, NOMINALIA reserves the right to refund the amount that you have paid to reserve the domain.
During Sunrise periods (Sunrise means the period of launching of a new domain), in case of domain name denial by the Registry, NOMINALIA will refund 75% of the payment made. The outstanding 25% will be charged as domain name management and transaction costs.
In case of domain name denial by the Registry during the validation proceedings, NOMINALIA will refund 75% of the payment made. The outstanding 25% will be charged as domain name management and transaction costs.
If applicable, NOMINALIA will refund the payment by bank transfer to the account number provided by the client or to the credit card, depending on the payment procedure used by client.
OTHER CLAUSES RELATING TO THE SERVICE
II.- DATA PROTECTION
Right to withdraw
The services are usually activated no later than 24 hours after closing the agreement. Once closing is completed and the service has commenced, the Client or end user has no further right to withdraw. As an exception, registry of domains .es is immediately activated (for information purposes: the managing entity Red.es does not allow cancellation of domains except by direct order issued by the administrative contact for the interested party of the .es domain.).
If the Client wishes to exercise his/her right to withdraw, where applicable, NOMINALIA recommends using the forms published as attachments to Law 3/2014, issued 27 March.
III. CONTRACTUAL CHANGES, RESPONSIBILITIES, AND INTELLECTUAL PROPERTY
6 - CHANGES IN THE GENERAL CONDITIONS OF SERVICE AND/OR THE SERVICE ORDER:
NOMINALIA reserves the right to amend these GCS and the terms and conditions of the SO in the terms of this contract at all times by giving the Client at least 30 calendar days’ notice.
Amendments will be implemented according to these GCS and to the rules that from time to time may apply. Amendments will never harm the interest or the rights of the Users/Clients.
It will be understood that the Client accepts these modifications if once this term has elapsed, the Client continues to use the services provided by NOMINALIA.
The Client has the right to cancel a SO or the GCS applicable at that time by sending the corresponding notice to NOMINALIA within the 30-day term.
7 - USE OF THE SERVICES AND CLIENT LIABILITY:
The Client undertakes to act loyally and in good faith during the rendering of the contracted services. Similarly, the Client undertakes to use his/her best efforts to comply with the provisions and commitments pursuant to these GSC and to respect, in case of services offered by NOMINALIA in a shared manner, the quality, stability and security of such services even with regard to the use of same by third Clients.
The Client certifies that to the best of his/her knowledge the use of the domain name registered upon his/her request does not affect the intellectual property rights of third parties.
The Client accepts sole and exclusive liability derived from the choice of the domain name and from its further maintenance.
The Client accepts that the registration of the domain name is for legal purposes.
The Client accepts liability for all consequences of any problem related to the right of use of the domain name.
The Client undertakes to accept any possible submission to arbitration which may arise as a consequence of his/her application for registration of a domain name or a result of the registration of the said domain name.
The contents of the files stored in NOMINALIA’s servers are the sole and exclusive responsibility of the Client. NOMINALIA will not be held liable for any fault caused by malfunction of the server, or of the client's email addresses, and/or lack of communication to NOMINALIA of changes in the email addresses, disinformation by negligence of the client or login and improper use and storage of passwords, all these being the sole and exclusive responsibility of the Client.
Some of the services provided by NOMINALIA published or included in the corresponding Web access via a chat in real time, of general access (whether or not a NOMINALIA client).
This Chat allows Users to ask questions in real time about NOMINALIA service and products, even prior to recruitment of any particular service by the user. Personal data provided by the user to activate the Chat and/or during the handling of the same is incorporated into a file called "Clients" for which NOMINALIA is responsible. A third party by the name of Zendesk is liable for processing this data and access to its own privacy policies is available in the start window of the Chat. Acceptance of these Terms and Conditions/Service Order implies acceptance of this processing. The purpose of this processing is to resolve users’ questions and doubts about the service and products about which queries can be made in the Chat and to keep a record of the enquiries made and the solutions provided. Users may, at any time, exercise their rights of access, rectification, cancellation, and others vis-a-vis NOMINALIA. The NOMINALIA data protection policy, referred to in Section II of this document and available at https://www.NOMINALIA.com/quienes-somos/condiciones-legales/cookies/ is especially prohibited:
· -The use of the web server by the Client in order to carry out actions contrary to Spanish Laws or with the intention of causing damage to third companies or individuals.;
· Messages and/or contents of a violent, abusive, libel, racist, xenophobic or pornographic nature, especially any image or obscene file or with sexual content that may infer pornography such as complete and/or partial nudity;
· Computer programs that are intended to unlock the contents of other licensed computer programs (cracks), serial numbers for computer programs or any other content that violates intellectual property rights;
· Images and files in whatsoever format that infringe intellectual property, with regard to which the client does not hold any right to or that are not the property of the person/company that hosts the domain in NOMINALIA.;
· Any content that is contrary to Spanish laws, especially the aforementioned Data Protection Law.
· The use of the e-mail server and e-mail addresses for sending unsolicited email (Spam) as well as sending large messages in order to block the server (Mail bombing);
· Using the space rented in the servers for storing images and/or webpage contents from third parties’ webpages, whatever the theme of these pages is;
· Creating any kind of web programming that is directly or indirectly detrimental to the performance of NOMINALIA's servers, either by consuming more resources than those necessary or programming any type of code that damages, restarts or turns off the servers where the programmed content is stored, no matter whether intentionally or unintentionally.
Infringement of any of the aforementioned prohibitions by the Client may lead to the termination of the Contract on the said infringement basis, with no right to any indemnity at all in favour of the Client. In the event of actions taken directly or indirectly by the Client (including through its/his/her website or email) or by a third party as a result of negligence attributable to the Client which may cause any damage or injury to NOMINALIA or to any of the other Clients or general users, NOMINALIA is entitled to immediately suspend or terminate the services provided to the client and terminate the contract without any compensation in favour of the client. NOMINALIA may inform the client via email about the interruption and of the reasons of same. In general, the Client agrees not to use the Services for illegal purposes or to violate any national or international law or applicable regulation in any way.
Incorporated to these General Terms and Conditions in all which is not explicitly and otherwise herewith regulated are the contents of the special conditions that regulate products associated with the product or service hired (domains, hosting, email, dedicated servers ... as described in the following links:
In all cases and independently of the service or services hired, the client is responsible for making its own backups and security copies, as indicated in the present Conditions and its cited annexes. The termination of the service contract between the client and NOMINALIA, regardless of the reason for such termination, shall entail cancellation of client data, as well as all content stored by the client in the server, mail, etc.., NOMINALIA will not be held liable nor responsible, for any data lost, economic loss or otherwise. Therefore, it is the Client’s duty to save the data in other medium or support prior to the cancellation of the Service. Moreover, NOMINALIA is not authorised by law to save/store contents (ad.ex. Law 25/2007).
Regarding the obligation to destroy data and retain data, this is subject to the legal obligations governing conservation of data, for example, the blocking of data.
8 - COMMUNICATION BETWEEN THE PARTIES:
The relationship between the parties is that of a Client and a Service Provider.
As a general rule and save in the event that the procedural legislation requires the contrary, the parties agree to communicate via email, fax or postal mail using the respective most updated addresses and numbers in their respective possession. The parties are obliged to keep evidence of the notices sent to the other party.
9 - INTELLECTUAL AND/OR INDUSTRIAL PROPERTY RIGHTS:
NOMINALIA is the owner of all trademarks, authors and property rights, know-how and all computer programmes related to the services provided by NOMINALIA. The Client is granted only a limited, non-transferable user right thereof.
The Client guarantees that he is the owner of the information stored in the assigned space or that, in any event, he has the corresponding authorization to spread the information on the Internet. In order to safeguard the purposes of this contract, the Client authorises NOMINALIA to make a back-up copy of the information provided during the term of this agreement.
10 - LIMITATIONS OF NOMINALIA'S LIABILITY:
NOMINALIA undertakes to act diligently and in good faith in its business relationship with the Client. NOMINALIA also undertakes to offer the best quality service at all times, in the absence of exceptional incidents or and/or incidents caused by third parties that are outside NOMINALIA's control and which may lead to the temporary or permanent suspension of the Service; and the integrity of the stored information on its servers, transferred by its system or via the Internet.
NOMINALIA has implemented the reasonably necessary required and updated security measures to prevent and avoid undesired access, loss of or corruption of data.
NOMINALIA cannot guarantee that the order placed by the applicant will be feasible.
NOMINALIA accepts no liability for possible errors or suspensions of the service caused or carried out by third parties, organisations or companies, including participants in all registry service processes, directly or indirectly by means of NOMINALIA.
The information that the Client is able to access through the access service is the responsibility of the party who develops the information. NOMINALIA will not be responsible in any case and under no circumstances for the content of third parties' information to which the client may have access, nor for damage that the Client may suffer because of such information, regardless of whether the information is accessed via direct or consecutive links, whose origin is on NOMINALIA web pages. The following are also considered resources beyond NOMINALIA's control:
- User programmes, texts, and data,
-newsgroups not moderated in the server
- newsgroups on other servers,
- FTP and Telnet accounts
The entrepreneur shall be jointly and severally liable acting as principle or agent that have acted on their own behalf.
NOMINALIA undertakes to use the best known technology and the best resources at its disposal to provide the Services. The Client agrees and acknowledges that NOMINALIA may not, in any way, be liable for delays or faults in the provision of the service due to causes beyond the reasonable control of NOMINALIA, such as, but not limited to: (i) force majeure; (ii) events dependent on third parties such as, inter alia, interruption or malfunction of telecommunications operators services and / or power lines or acts or omissions of the competent Registry Authority; (iii) malfunction of terminals or other systems, hardware or software, used by the client. In the event of a service interruption, NOMINALIA undertakes to restore the service as soon as possible. The Client also agrees that NOMINALIA cannot be held responsible or liable for the acts or omissions attributable to the Client and/or contrary to or in conflict with the obligations assumed by this in the sense of these General Conditions and/or Service Order, nor can it be held liable for malfunction due to defects in the necessary means for access to the Service, or improper use of the same and/or methods of access to the Service by the Client or third parties. NOMINALIA shall not in any case be considered liable to Client or any third party for loss of profit, loss of earnings, nor for any other form of loss of profits or indirect or consequential damages related to the performance of these Conditions and/or a Service Order. The Services may be suspended, cancelled or transferred at the request of the competent authorities.
11 - EXPRESS CANCELLATION CLAUSE:
Article 1.124 of the Spanish Civil Code applies.
IV.- APPLICABLE LAW AND COMPETENT FORUM
12 - APPLICABLE LAW AND JURISDICTION
This agreement is subject to Spanish law and the Spanish courts.
Address for notifications / correspondence:
NOMINALIA INTERNET S.L.
c/ Josep Pla, Nº2, Torres Diagonal Litoral,
Edificio B-3, Planta 3-d,
08019 Barcelona (Spain)
Client services telephone number: 93 288 40 62