Mark Validation System Terms & Conditions
1. Background to Agreement
1.1 The Mark Validation System (MVS) allows holders of legal rights to names to have these rights confirmed (validated) and recorded in a database.
1.2 Validated marks can then be used to apply for domain names during a Top Level Domain (TLD) Sunrise period, or monitor the registration of matching domain names by third parties in those TLDs.
1.3. In order to use the MVS You will have to agree to these terms and create an Account. This agreement governs Your membership of the Website and how You use Your Account.
1.4. If You do not agree with the terms of this Agreement, or do not have authority to enter into this Agreement, You may not make use of the MVS.
The following words and phrases have these meanings in this Agreement:
2.1. "Account" means the information that We hold about You, including details of money paid to Us by You, billing and transaction records, personal contact details, and reference to an Account includes reference to all rights that You hold under this Agreement.
2.2. "Agreement" means this document as well as the other documents referred to in it, which are deemed to form part of the Agreement.
2.3. "Fee" means the fees that We charge You for use of the MVS and its services.
2.4. "Intellectual Property Rights" means copyright, patents, registered designs, trademarks (whether registered or not) , trade secrets, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions that grant similar rights.
2.5. "Guidelines" means the MVS Guidelines published on the Website.
2.6. "Mark" means a registered trade mark or other right to a name as described in the Guidelines.
2.7. "Mark Holder" means the owner, licensee or assignee of a Mark.
2.8. "MVS" or Mark Validation System means the service made available to users via the Website for the Validation of Marks and related services as more fully describer in the Guidelines.
2.9. "Personal Information" means the information relating to an identifiable, natural or juristic person.
2.10. "Processing" means any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including:
- 2.11.1. the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use;
- 2.11.2. dissemination by means of transmission, distribution or making available in any other form; or
- 2.11.3. merging, linking, as well as restriction, degradation, erasure or destruction of information.
2.11. "Serviced TLD" means a Top Level Domain of the domain name system which makes use of the MVS during its launch and / or open delegation phases.
2.12. "Website" means Internet website at URL https://markvalidation.co.za or such other URL as We may indicate from time to time.
2.13. "Us", "We", or "Our" means ZA Central Registry NPC, a company incorporated in terms of the company laws of the Republic of South Africa with registration number 1988/004299/09, and also includes reference to our holding company and its subsidiaries, and our successors and authorised assigns.
2.14. "Validate" means the process by which a submitted Mark is checked for accuracy and for compliance with the Validation requirements for Marks set out in the Guidelines.
2.15. "Validated" in reference to a Mark means a Mark that has been successfully Validated and has not been de-activated.
2.16. "You" or "Your" refers to you, or your employer or any other entity that you have full legal authority to bind and may be accepting this Agreement on behalf of.
3.1. Acceptance. By registering an Account on the MVS, entering any Mark or other data into the MVS, or by indicating Your acceptance of this Agreement in any other way, You agree to the terms of this Agreement.
3.3. Conflict. If there is any conflict between the contents of this document and the contents of the above documents, then the provisions of this document will prevail.
3.4. Amendments. We reserve the right to amend the terms of this Agreement at any time and without notice to You. You are advised to regularly check whether these terms have changed. The most recent version of the Agreement will be available on the Website. Please refer to the last revision number and date at the top of this document. If You do not accept any amendment of the Agreement You may terminate it on notice to Us.
3.5. Warranty of Authority. If you are entering into this Agreement or intend to use the MVS on behalf of a third party or in a representative capacity, You warrant that You are authorised to do so.
4. Registration of Account
4.1. Accuracy. Upon accepting this Agreement, You agree and acknowledge to provide accurate personal information requested during the registration process and to keep this information updated and accurate at all times. If the personal information is incorrect, we may suspend Your Account until such time as the inaccuracy has been rectified.
4.2. Additional Users. Additional users may be created under a particular Account. The party setting up the Account is responsible for the conduct of all users under that Account.
4.3. Access Information. You agree that user names and passwords are issued for individual users only and that users must not share this information with anyone else.
4.4. Responsibility. We do take security seriously, but as the user, You accept all risks of any unauthorized access that could occur regarding Your registration data.
4.5. Juristic Persons. Juristic persons are encouraged to open Accounts using the details of the juristic person rather than that of the employee, officer or agent acting on behalf of the juristic person.
4.6. Accounts Registered for Others. If You create an Account on behalf of another person, all rights arising from that Account, will vest in that other person.
5. Submission of Marks
5.1. Submission Process and Requirements. The process and requirements for submitting Marks to the MVS are set out in the Guidelines.
5.2. Accuracy. You agree that the information submitted to the MVS in respect of any Mark is true and correct.
5.3. Changes to Marks. You agree that if the particulars of any Mark submitted to the MVS changes during the term of this Agreement, You will notify Us of the change. Note however that changes to certain particulars may constitute the submission of a new Mark, and We reserve the right to charge accordingly. See the Guidelines for further details.
5.4. User's Warranties. You warrant that:
- 5.4.1. You are the Mark Holder, the Mark Holder has licensed the applicable Intellectual Property Rights to You, or You hold the necessary authority to enter into this Agreement and use the MVS (including all the processes and functions described in the Guidelines) on behalf of the Mark Holder in respect of the Mark; and
- 5.4.2. In submitting a Mark to the MVS, or by making use of the MVS in any way, you are not infringing any third party's Intellectual Property Rights.
6. Validation of Marks
6.1. Validation. Marks will be Validated by Us once they have been submitted to the MVS. Validation will take place as set out in the Guidelines.
6.2. Validation Outcome. You will be notified of the result of Validation via the MVS. If Validation is successful, the Mark will be recorded in Our database as a Validated Mark. If Validation fails, We will give You reasons for the failure.
6.3. Re-Validation. Our records must be up to date if We are to provide the service. As a result each Mark must be re-Validated each year by the anniversary of its initial Validation.
- 6.3.1. If You have elected to receive the services for more than one year, We will re-Validate Your Validated Marks as part of the relevant Fee.
- 6.3.2. If this period has expired, Your Marks will expire if they are not re-Validated timeously.
- 6.3.3. If We do not have the necessary documentation to re-Validate a Mark, the Mark will be assigned a "pending" status until You have provided Us with the necessary information.
6.4. Transfer of Validated Marks. If You are acting in a representative capacity, and the Mark Holder or licensee wishes to transfer Validated Marks to an Account held by another party (the "Transferee"), then We will only make such a transfer if the Transferee provides us with a written instruction from the Mark Holder or licensee to effect such a transfer. You must also consent to such transfer in writing. We reserve the right to charge a reasonable administrative fee to effect the transfer.
We will provide the services described in this clause, as further described in the Guidelines.
7.1 Period. We will provide the services to you for a period of one to three years, at your election. You may renew this period, subject to payment of the relevant Fee.
7.2 Sunrise Service. If You elect to make use of the Sunrise service, we will send You an SMD (Signed Mark Data) file for each Validated Mark in respect of each Serviced TLD, as detailed in the Guidelines.
7.3 Watch Service. If a domain name is registered in a Serviced TLD which matches a Validated Mark or the variants that You have entered in the MVS, We will send You notification as described in the Guidelines. We will provide this service as described in the Launch Policy, for as long as the Mark remains Validated. Note that You are responsible for the variants that you select - You will not receive notification if you do not select the right variants.
7.4 Claims Service. If anyone applies to register a domain name in a Serviced TLD which matches a Validated Mark or the variants that You have entered in the MVS, We will send a confirmation notice to the applicant in the form described in the Guidelines notifying the applicant of Your prior right to the Mark. The applicant will only be able to proceed with registration once it has acknowledged the notice and confirmed that it wishes to proceed.
8. De-Activation of Marks
8.1. A Validated Mark will lose its Validated status in the following circumstances, in which case it will no longer be available for any of the services described in the Guidelines:
- 8.1.1. Failure to pay Fees by due date;
- 8.1.2. Erroneous Validation by Us, where the Validated Mark is subsequently reviewed and You are found to have no right to the Mark; or
- 8.1.3. The Mark is not re-Validated annually as required.
9.1. MVS Fees. There is no charge for registering an Account and uploading mark information, but We will charge Fees for Validating Marks and for the Watch service as set out in the MVS Fees Schedule on the Website (https://markvalidation.co.za).
9.2. Payment. Your payment of the Fees must be made in one of the following ways:
- 9.2.1. Credit Card Payment. At checkout, the transaction details are presented to the bank and payment is collected immediately. If the bank's authorisation is not obtained, the order will be cancelled.
- 9.2.2. Pre-payment. Payment is made by debiting your pre-paid credit balance.
9.3. Your Pre-paid Account. You can purchase credits which will be held in your Account and redeemed in future transactions.
- 9.3.1. Payments may be made by credit card or by electronic funds transfer to the account set out in the MVS Fees Schedule on the Website.
- 9.3.2. We may provide You with credit at our sole instance. If We ever refund You the balance in your Account, We will not pay You the credit obtained in this way.
9.4. Currency. All payments are made in South African rands (ZAR).
9.5. Taxes. You acknowledge that depending on Your residence and geographical position, taxes may be added to the Fees under this Agreement. Value added tax at the rate of 14% is charged on orders to South African residents. VAT is not payable on orders if the billing address is outside of South Africa.
10. Operation of Account
10.1. Your Responsibility. You accept that You are responsible for the consequences of Your use of Your Account and the MVS, and for maintaining it and all information in it. This responsibility extends to all of Your employees, officers or agents that may access the MVS.
10.2. Access. You will have access to Your Account by means of a username and password.
- 10.2.1. Access to the Account will allow You to access the MVS, and make changes to Your account details.
- 10.2.2. If You forget Your username or password, We will only take steps that We regard as being secure to ensure that You re-gain access to Your Account.
10.3. Use of Account. You agree:
- 10.3.1. to use the MVS only for the purposes set out in this Agreement and the Guidelines;
- 10.3.2. not to use Your Account to commit any unlawful activity, or in a way which is likely to be defamatory or cause offense;
- 10.3.3. not to divulge Your username or password to any other person; and
- 10.3.4. not to impersonate any other person in dealing with Us, and particularly not to access the Website using another user's username and password.
10.4. Unauthorised Use. You agree and acknowledge that You will contact Us immediately should You experience any unauthorized use of Your Account details.
10.5. Suspension of Account. If You are in breach of this Agreement, we may suspend your Account. This will have the effect of suspending Your access to the MVS and will also suspend all services described in the Guidelines.
11.1. Independent Contractor. The relationship of the parties is that of an independent contractor. Nothing in this Agreement will constitute the relationship of employer and employee, partnership or a joint venture between You and Us.
11.2. No Agency. This Agreement does not give rise to a relationship of principal and agent. Neither party will be entitled to conclude any agreement on behalf of the other, nor to sign any document on behalf of the other, unless this is expressly authorised in writing by the other.
12.1. You grant Us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license for the period of this Agreement to use any data that You submit to Us, including data relating to Marks, for the purposes set out in this Agreement and the Guidelines.
13. Personal Information
13.1. Sharing of Personal Information. As a necessary consequence of making use of the MVS, Personal Information that You submit to Us will be shared with domain name registries, registrars, and registrants, and with Our service providers. We will however only share such Personal Information to the minimum extent necessary for Us to provide the MVS service to You.
13.2. Processing of Personal Information. We undertake that the Personal Information will be processed in accordance with applicable law, and that in particular We will only Process Personal Information in a manner consistent with allowing use of the MVS, as set out in the Guidelines, and will Process it to the minimum extent necessary.
13.3. Third Party Personal Information. If You submit Personal Information relating to a third party to Us, You warrant that You are authorised, and have obtained the consent of such third party to do so.
13.4. Cross-Border Data Flows. In the event that You are not located in the Republic of South Africa, You note that in making use of the MVS You may be transferring Personal Information to Us and to the parties described in clause 12.1. You acknowledge that South Africa may not have the same level of data protection as Your jurisdiction, and You consent to the transfer of the Personal Information in this manner. Moreover, if You are acting for a third party, You warrant that You are authorised, and have obtained the consent of such third party, for such a transfer.
13.5. Duty to Comply with Applicable Law. It is Your responsibility to comply with Your jurisdiction's data privacy laws in respect of any Personal Information that you transmit to Us.
14. Limitation of Liability & Indemnity
14.1. Limitation of Liability. Neither You nor We will be liable for any damages that You or We or any third party might suffer that relates to or arise from this Agreement or your use of the MVS, whether or not anyone anticipated or should have anticipated that the damages would occur. The excluded damages include direct damages, as well as indirect or consequential damages (such as loss of profits, business, goodwill, revenue or anticipated savings).
14.2. Indemnity. You agree to indemnify and hold Us harmless in respect of any claim that a third party might bring against Us (including legal costs on a scale as between attorney and own client) that relates to or arises from:
- 14.2.1. Your breach of this Agreement;
- 14.2.2. Your use of the MVS;
- 14.2.3. Your breach of privacy or data protection laws in any jurisdiction;
- 14.2.4. Your infringement of any third party's Intellectual Property Rights.
15.1. Termination for Breach. If You commit a material breach of this Agreement and fail to remedy the breach within 30 (thirty) days after having received a written notice to do so, We may terminate this Agreement without further notice to You.
15.2. Termination for Convenience.You may terminate this Agreement at any time by giving Us written notice. We may terminate the Agreement if for a period of 30 (thirty) days you do not have any Validated Marks and you do not have any Marks pending Validation.
15.3. Consequences of Termination. If this Agreement is terminated for any reason, We will suspend your access to the MVS and may delete Your MVS Account and associated personal information and Mark data. You will also no longer receive the benefits of the MVS, as set out in the Guidelines.
15.4. Right to Claim Damages. Termination of this Agreement will not affect Our right to claim damages against You for breach of this Agreement and / or copyright infringement.
16.1. Dispute Resolution. All disputes relating to the Validation of Marks will be dealt with in terms of the MVS Dispute Resolution Policy.
16.2. Applicable Law. The law of the Republic of South Africa will apply to this Agreement, its interpretation and any matter or litigation relating to or arising from it.
16.3. Jurisdiction. The parties consent to the jurisdiction of the South Gauteng Division of the High Court of South Africa in adjudicating disputes arising from or connected with this Agreement.
17. Force Majeure
17.1. Neither party will be liable for any delay in performing or any failure to perform any obligations under this Agreement due to any cause beyond their reasonable control, including but without being limited to any of the following: strikes, lock outs or other industrial action, sabotage, terrorism, civil commotion, riot, invasion, war, threat of or preparation for war, fire, explosion, failure of electrical supply, storm, flood, subsidence, epidemic or other natural physical disaster, impossibility of the use of railways, shipping aircraft, motor transport or other means of public or private transport; any act or policy of any state or government or other authority having jurisdiction over either party, sanctions, boycott or embargo.
18. Interpretation & General
18.1. Whole Agreement. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to by both parties will be of any effect.
18.2. Survival. For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty extending beyond the termination or expiry of this Agreement will survive the termination or expiry of this Agreement and continue in full force and effect.
18.3. No Indulgence. If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still be enforceable.
18.4. Reading Down. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
18.5. Severance. In the event that any part of this Agreement is found to be partially or fully unenforceable because it does not comply with any law, or for any other reason, this will not affect the application or enforceability of the remainder of this Agreement.