This Policy Statement ("Policy Statement") will clarify Sapphire's policies regarding the use and registration of Domain Names ("Domain Name").
1. Sapphire is responsible for the registration of second level Internet Domain Names and the top level GI Domain. Sapphire registers these Domain Names on a "first come first served" basis. Sapphire has neither the resources nor the legal obligation to screen requested Domain Names to determine if the use of a Domain Name by an Applicant may infringe upon the right(s) of a third party. Consequently as an express condition and material inducement to the grant of an Applicant(s) request to register a Domain Name, the Applicant represents and warrants as follows:
a. Applicant's statements in the application are true and Applicant has the right to use the Domain Name as requested in the application;
b. Applicant has a bona fide intention to use a Domain Name on a regular basis on the Internet;
c. the use or registration of the Domain Name by the Applicant, to the best of the Applicant's knowledge, does not interfere with or infringe the right of any third party in any jurisdiction with respect to trade mark, service mark, trade name, company name or any other intellectual property right;
d. Applicant is not seeking to use a Domain Name for any unlawful purpose including, without limitation, tortious interference with contract or prospective business advantage, unfair competition, injuring the reputation of another or for the purpose of confusing or misleading a person, whether natural or incorporated.
2. The Applicant acknowledges and agrees that this Policy Statement and the registration and use of Domain Names may change from time to time and Sapphire is entitled to modify or amend the terms of this Policy Statement.
3. At the time of the initial submission of the Domain Name request the Applicant is required to have operational name service from at least two operational Internet servers for that Domain Name. Each server must be fully connected to the Internet and capable of receiving queries under that Domain Name and responding thereto. In the event that the Applicant does not make regular use of its assigned Domain Name for any period of 90 days or more, the Applicant agrees that he or she shall upon request of Sapphire, relinquish that Domain Name to Sapphire, making that Domain Name available for registration and use by another party.
4. The Applicant is responsible for its selection of Domain Name. Consequently, the Applicant shall defend, indemnify and hold harmless Sapphire, its officers, directors, employees and agents for any loss, damage, expense or liability resulting from any claim, action or demand arising out of or related to the use or registration of the Domain Name including reasonable legal fees. Such claims shall include, without limitation, those based upon trade mark or service mark infringement, trade name infringement, tortious interference with contract or prospective business advantage, unfair competition, defamation or injury to business reputation. The indemnified parties agree to give the Applicant written notice of any such claim, action or demand within a reasonable time. The Applicant agrees that the indemnified parties shall be defended by lawyers of their choice at the Applicant's expense and that the Applicant shall advance the costs of such litigation in a reasonable fashion from time to time. Failure to abide by this provision shall be considered a material breach of this Agreement and permit Sapphire to immediately withdraw the use and registration of the Domain Name from the Applicant.
5. The Applicant agrees that Sapphire shall have the right to withdraw a Domain Name from use and registration on the Internet upon 30 days' prior written notice (or earlier if ordered by the Court) should Sapphire receive a properly authenticated Order by the Court or arbitration panel chosen by the parties (if the Order is from an arbitration panel it should include written evidence that all parties which will be bound by the decision submitted the dispute for binding arbitration to such panel) that the Domain Name in dispute rightly belongs to a third party.
6. In the event that the Applicant breaches any of its obligations under this Policy Statement, Sapphire may request that the Applicant relinquish the Domain Name in a written Notice describing the alleged breach. If the Applicant fails to provide evidence that it has not breached its obligations which is reasonably satisfactory to Sapphire within 30 days of the date of receipt of such Notice, then Sapphire may terminate the Applicant's use and registration of the Domain Name. Breach of any of the warranties, representations or obligations of an Applicant pursuant to this policy shall not provide any third party a right to require or demand removal of a Domain Name or an Applicant from the Sapphire registry. Neither shall any such breach by an Applicant be deemed to have been excused simply because Sapphire did not act earlier in response to that or any other breach by the Applicant.
7. The Applicant acknowledges and agrees that Sapphire cannot act as an arbiter of disputes arising out of the registration and use of Domain Names. At the same time the Applicant acknowledges that Sapphire may be presented with evidence that a Domain Name registered by the Applicant violates the rights of a third party. Such evidence includes but is not limited to evidence that the Domain Name is identical to a valid and subsisting foreign or Gibraltar registration of a trade mark or service mark that is in full force and effect and owned by another person or entity. In those instances where the basis of the claim is other than a registered trade mark or service mark, the Applicant shall be allowed to continue using the contested Domain Name unless and until a Court Order or Arbitrator's Judgement to the contrary is received by Sapphire as provided in paragraph 5.
8. In those instances when the claim is based upon a trade mark or service mark, then:
a. Without prejudice to the ultimate determination and with recognition that trade mark or service mark ownership does not automatically extend ownership to a Domain Name, Sapphire shall determine the date the Applicant's Domain Name was first in use by the Applicant (as determined by the activation date of the Domain Name). If the date of first use of the Domain Name by the Applicant is not prior to the earlier of
i. the date of first use of the Claimant's trade mark or service mark; or
ii. the effective date of the valid and subsisting registration of the trade mark or service mark owned by the Claimant;
Sapphire shall request from the Applicant proof of ownership of their own trade mark or service mark by submission of a certified copy of a foreign or Gibraltar trade mark or service mark registration owned by the Applicant that is in full force and effect and that is the same as the Domain Name registered to the Applicant.
b. In the event that the Applicant's Domain Name was in use by the Applicant (as determined by the activation date of the Domain Name) prior to the earlier of
i. the date of first use of trade mark or service mark; or
ii. the effective date of the valid and subsisting registration of the trade mark or service mark owned by the Claimant;
or the Applicant provides evidence of ownership of a trade mark or service mark as provided in paragraph 7 the Applicant shall be allowed subject to paragraph 8(e) to continue using the contested Domain Name unless and until a Court Order or Arbitrator's Judgement to the contrary is received by Sapphire as provided in paragraph 5.
c. In the event that the Applicant fails to provide evidence of a trade mark or service mark registration to Sapphire within 30 days of Sapphire's request and is not eligible under paragraph 8(b) for non-suspension, Sapphire will assist the Applicant with the assignment of a new Domain Name and will allow the Applicant to maintain both names simultaneously for up to 90 days to allow an orderly transmission to the new Domain Name. Sapphire will provide such assistance to an Applicant if and only if the Applicant submits an explicit written request for assistance including an identification of the Applicant's desired new Domain Name within 30 days of Sapphire's original request. At the end of the transition period Sapphire will place the disputed Domain Name on "hold" status pending resolution of the dispute. As long as the Domain Name is on "hold" status that Domain Name registered to the Applicant shall not be available for use by any party.
d. If the Applicant fails to provide evidence of a trade mark or service mark registration to Sapphire within 30 days and will neither accept the assignment of a new Domain Name or relinquish its use of the Domain Name, Sapphire will place the disputed Domain Name on "hold" status pending resolution of the dispute. As long the Domain Name is on "hold" status that Domain Name registered to the Applicant shall not be available for use by any party.
e. If the Applicant provides the evidence described in paragraph 7 or is eligible under paragraph 8(b) and wishes to continue to use the contested Domain Name registered by the Applicant, the Applicant agrees to indemnify Sapphire on the terms stated in paragraph 4 from any liability relating to the registration or use of the domain name registered by the Applicant and post a Bond in an amount sufficient to meet the damage sought, or if no specific amount of damages is sought, in an amount deemed reasonable in Sapphire's sole discretion within 14 days of Sapphire's request. Without such agreement and the posting of the Bond, Sapphire may, notwithstanding any trade mark or service mark registration presented to it or eligibility for non-suspension under paragraph 8(b), place the use of the Domain Name in "hold" status pending resolution of the dispute.
f. Sapphire will reinstate the use and registration of the Domain Name placed on "hold" status when and if it receives a properly authenticated Order by the Court or Arbitration Panel chosen by the parties (if the Order is from an Arbitration Panel it should include written evidence that all parties which will be bound by the decision submitted the dispute for binding Arbitration to such Panel) stating which party to the dispute is entitled to use and register the Domain Name or if Sapphire receives satisfactory evidence for the resolution, the dispute will stop.
9. Sapphire will not be liable for any loss of use, interruption of business, or any indirect, special, incidental or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence) or otherwise, even if Sapphire has been advised of the possibility of such damages. In no event shall Sapphire's maximum liability under the Policy exceed 125% of the registration fees paid in respect of a particular period of registration.
10. Any dispute arising out of this Agreement or at the request of Sapphire and upon the agreement of the challenging party, a dispute regarding the right to register or use the Domain Name, shall be resolved by binding arbitration under The Provisions of the Arbitration Ordinance. Notwithstanding the foregoing, the parties irrevocably submit to the non-exclusive jurisdiction of the Gibraltar Courts in any action to enforce an Arbitration Award.
11. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission or by certified or registered mail, (return receipt requested) and shall be deemed delivered upon personal delivery, 7 days after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the Domain Administrative Contact as stated in the Application Form or such other address as either party may certify in writing. This Policy Statement can only be amended by Sapphire as provided in paragraph 2.
12. Nothing contained in this Policy Statement shall be construed as creating any agency, partnership or other form of joint enterprise between the parties.
13. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of the breach of any provision hereof be taken or held to be a waiver of the provision itself.
14. In the event that any provision in this Agreement shall be unenforceable or invalid under any applicable law or be so held by an applicable Court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. The parties agree to amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original economic objectives and contractual intent of Sapphire as reflected in the original provision.