This contract between Melbourne IT Limited (ABN 21 073 716 793)
('Melbourne IT') and the Domain Name Licence Holder ('the Licensee') for
the licence of any .au domain name (the 'Domain Name') contains the
following terms and conditions:
| 1 |
In this agreement auDA means .au Domain Administration Limited ACN 079 009 340, the .au domain
administrator. These terms and conditions, and any applicable Published Policies of auDA (the 'Published
Policies'), constitutes the entire agreement between Melbourne IT and the Licensee for the registration
of the Domain Name, and supersedes all prior agreements, understandings and representations whether oral
or written. Melbourne IT acts as an agent for auDA for the sole purpose, but only to the extent necessary,
to enable auDA to receive the benefit of rights and covenants conferred to it under this agreement. |
| 2
|
Melbourne IT may change the terms and conditions of this Registration Agreement either by obtaining
your consent or giving you notice. The period of notice given by Melbourne IT depends on the
nature of the change. If:
| (a) |
the change will benefit you, we may make the change immediately and are not required to notify you prior to the change; |
| (b) |
the change is required by law, a regulatory body (including ICANN, auDA or any other domain name regulatory body) or for a technical reason (including for security), we will give you a reasonable period of notice not exceeding 3 days;
|
| (c) |
we consider that the change has a significant and detrimental impact on our customers generally, we will give you at least 30 days notice prior to the change, and |
| (d) |
for all other changes, we will also give you at least 30 days notice prior to the change.
|
Melbourne IT may give notice of a change by posting the new version of the Agreement on its website located at www.melbourneit.com.au/policies
|
| LICENSEE'S OBLIGATIONS |
| 3 |
The Licensee agrees to read and comply with the terms of the
Published Policies referred to in clause 1 and located at
http://www.auda.org.au/policy, in respect of its use
and registration of Domain Names registered through Melbourne IT as
the registrar of record. |
| 4 |
The Licensee agrees that where it is to manage its own Domain
Name (as opposed to its appointment of a Melbourne IT accredited
reseller to manage its Domain Name), payment clauses 5 to 7 of this
Agreement apply. The Licensee agrees that where it appoints a
Melbourne IT accredited reseller to manage its Domain Name, the
charges payable for the registration or renewal of that Domain Name,
and the payment terms for such Domain Name, will be as agreed by the
Licensee and the Melbourne IT accredited reseller. |
| 5 |
The Licensee agrees that Melbourne IT's charges for the licence
of a Domain Name or any related Domain Name services are set out on
Melbourne IT's website http://www.melbourneit.com.au
(the 'Melbourne IT Website'). The Licensee agrees to pay such charges:
| a |
at the rates set out on Melbourne IT's Website at the time
the Licensee's Domain Name Application for registration or renewal is submitted to Melbourne
IT; and |
| b |
in accordance with the payment terms set out at the
Melbourne IT Website at the time the Licensee's Domain Name
application for registration or renewal is submitted to Melbourne IT. |
|
| 6 |
The parties agree that the Licensee's application for the
registration or renewal (as the case may be) of a Domain Name will
not be processed by Melbourne IT until Melbourne IT receives all
applicable charges in respect of that Domain Name from the
Licensee. |
| 7 |
The Licensee agrees that failure to pay any charge
(including, without limitation, any renewal charge) for its
Domain Name when due (as evidenced for example by, without
limitation, the Licensee's credit card company notifying Melbourne
IT of the Licensee disputing the payment of, or refusing to pay such
charge, or where the Licensee's credit card payment has been
declined or reversed) will entitle Melbourne IT to suspend the
delegation of the Licensee's Domain Name on Melbourne IT giving the
Licensee written notice of the Licensee's failure in payment. Where
the Licensee fails to remedy its failure to pay the relevant charge
within 14 days of receiving such notice from Melbourne IT,
Melbourne IT may immediately cancel the relevant Domain Name
registration by deleting the relevant Domain Name. Where the
Licensee remedies the failure in payment within 14 days of receiving
such notice from Melbourne IT, provided that the relevant Domain Name has not already been deleted in accordance with this clause 7,
Melbourne IT will promptly cease its
suspension of the delegation of the relevant Domain Name. |
| 8 |
The Licensee agrees that it will:
| a |
ensure that its Domain Name Application is in the form
specified in the Published Policies; |
| b |
obtain the consent of individuals whose personal information
is to be publicly listed in the Registry as part of the Domain
Name Application; |
| c |
at all times comply with the Published Policies; |
| d |
promptly notify Melbourne IT of any change to its Domain
Name registration details; |
| e |
promptly notify Melbourne IT of any actual or threatened
proceedings brought in respect of the word/s used as a Domain
Name whether by or against the Licensee; and |
| f |
not, directly or indirectly, through registration or use
of its Domain Name or otherwise:
| i |
register a Domain Name for the purpose of selling it; |
| ii |
register a Domain Name for the purpose of diverting
trade from another business or website; |
| iii |
deliberately register as a Domain Name misspellings of
another entity's company or brand name in order to trade on
the reputation of another entity's goodwill; |
| iv |
register a Domain Name and then passively hold a Domain
Name Licence for the purpose of preventing another licensee
from registering it; |
| v |
transfer or purport to transfer a right of ownership in
any Domain Name registration; or |
| vi |
grant or purport to grant a security interest or other
encumbrance in a Domain Name.
| |
|
| 9 |
The Licensee warrants:
| a |
that it meets, and will continue to meet for the period of
its Domain Name registration, the eligibility criteria
prescribed in the Published Policies for registering a Domain
Name; |
| b |
that the details in respect of its Domain Name submitted
to Melbourne IT by the Licensee are true and correct, and that
any future additions or alterations to those details will be
true and correct; |
| c |
that it has not previously submitted a Domain Name
Application (which is for the same Domain Name applied for with
Melbourne IT) for registration with another registrar where: |
| d |
the Licensee is relying upon the same eligibility criteria
for both Domain Names; and |
| e |
the Domain Name has previously been rejected by the other
registrar.
| |
| 10 |
In addition to the warranties contained in clause 9,
the Licensee makes each of the warranties to Melbourne IT and auDA,
as specified in auDA's Registrant Warranties Policy (2005-03),
and any other policy introduced by auDA in substitution,
replacement or amendment to that policy. These warranties include,
without limitation, that all information supplied to Melbourne IT
for the registration of the Domain Name are true, complete and correct.
The Licensee accepts that auDA or Melbourne IT can cancel
the registration of the Domain Name if any of these warranties are not true. |
| 11 |
The Licensee warrants that neither the registration of the
Domain Name nor the manner in which the Domain Name is directly or
indirectly used infringes the legal rights of a third party.
Melbourne IT's remedies under this warranty will continue to be
available to it after the Licensee's completion of the Domain Name
registration process and will survive notwithstanding the
cancellation of the Domain Name or expiry or termination of this
Agreement. |
| 12 |
The Licensee indemnifies Melbourne IT against any claim that
the registration of the Domain Name or the manner in which the
Domain Name is directly or indirectly used infringes the legal
rights of any third party (except for claims arising from
Melbourne IT's negligence or breach of the terms of this contract),
and indemnifies Melbourne IT against the costs and expenses,
however they may arise, incurred in defending or dealing with
such a claim. |
| 13 |
The Licensee agrees that as required of Melbourne IT by auDA it
grants:
| a |
to auDA, the right to provide auDA with all information relating
to the Licensee's Domain Names registered with Melbourne IT for
public disclosure to third parties; |
| b |
to Melbourne IT, the right to provide the Registry Operator with
all information which is reasonably required by the Registry
Operator in order to register the Domain Name in the Registry;
and |
| c |
to Melbourne IT, the right to provide the Registry Operator
with all information relating to the registered Domain Name to
enable the Registry Operator to maintain a public WHOIS service
for public disclosure to third parties, provided that such
disclosure is consistent with:
| i |
the National Privacy Principles specified in the Privacy
Act 1988 (Cth); and |
| ii |
the Published Policies. |
|
|
| 14 |
The Licensee acknowledges that all personal information about
the Licensee which is supplied by Melbourne IT to auDA is held by
auDA for the benefit of the Australian public. |
| 15 |
The Licensee agrees that Melbourne IT enters into this Agreement
as the agent of auDA for the sole purpose, but only to the extent
necessary, to enable auDA to receive the benefit of the rights and
covenants conferred on auDA under this Agreement. |
| MELBOURNE IT'S OBLIGATIONS |
| 16 |
Melbourne IT will:
| i |
process the Licensee's Domain Name Application and consider
whether to accept or reject it in accordance with the criteria
laid down in the Published Policies in force at the time of
the application; |
| ii |
(if the Domain Name Application is accepted) forward the
Domain Name registration and delegation details to the Registry
Operator and use its reasonable endeavours to ensure that
details supplied by the Licensee in its Domain Name Application
are entered into and maintained in the au zone file and sent to
the Registry Operator; |
| iii |
(if the Domain Name Application is not accepted), notify the
Licensee or its agent that the Application was not successful,
and the reasons why; |
| iv |
permit the Licensee to transfer registered Domain Names to
another auDA accredited registrar in accordance with the
Published Policies; and |
| v |
immediately give written notice to the Licensee if Melbourne
IT is no longer an auDA accredited registrar, or if Melbourne
IT's auDA accreditation is suspended or terminated. The
Licensee agrees that if Melbourne IT is no longer an auDA
accredited registrar, the Licensee must transfer its registered
Domain Name to another auDA accredited registrar in accordance
with the Published Policies within 30 days of receiving written
notice from auDA requiring such transfer. Melbourne IT agrees
that it will not charge the Licensee any fee for such transfer.
| |
| REGISTRATION OF DOMAIN NAME |
| 17 |
The Licensee agrees that Melbourne IT will register Domain Names
on a first come, first served basis. The Licensee agrees that
Melbourne IT does not guarantee that any Domain Name applied for by
the Licensee will be successfully registered. The Licensee
acknowledges that it will not take any action in respect of the
registration of its Domain Name until the successful registration of
that Domain Name is confirmed to it by Melbourne IT. |
| 18 |
The parties agree that neither Melbourne IT nor the Licensee has
any right of ownership in a registered Domain Name. |
| 19 |
The parties agree that the initial licence period for use of the
Domain Name is two years from the date of successful registration.
Thereafter, the licence may be renewed indefinitely for periods of
two years, on the Licensee's payment of the applicable renewal
charge prior to the expiry of the Domain Name and subject to the
then current Published Policies and the terms of this Agreement. |
| 20 |
The Licensee acknowledges that:
| a |
it is the Licensee's responsibility to ensure that the
Domain Name is renewed; and |
| b |
the Licensee releases and holds Melbourne IT harmless
against any claim for damage or loss arising from any failure
of the Licensee's Domain Name to be renewed by the Licensee. |
|
| 21 |
The Licensee acknowledges that Melbourne IT has a complaints
handling procedure located at the Melbourne IT Website which
Melbourne IT will follow in handling any complaint from the Licensee
in respect of Melbourne IT's supply of Domain Name registration or
other related Domain Name services to the Licensee. |
| LICENSEE'S CANCELLATION OF DOMAIN NAME |
| 22 |
The Licensee agrees that Melbourne IT may suspend or cancel the registration or suspend the delegation of the Licensee's Domain Name:
| (a) |
in accordance with the terms of clauses 7 or 10; |
| (b) |
if as reasonably determined by Melbourne IT in its sole discretion,
the Licensee or any other person uses
the Domain Name in connection with: |
| i |
any activity that infringes the intellectual property rights
or other rights of third parties; |
| ii |
any activity that defames or disparages any person; |
| iii |
any otherwise illegal or fraudulent activity; or |
| (c) |
as directed by auDA. |
|
| 23 |
The Licensee agrees that Melbourne IT may cancel the
registration or suspend the delegation of the Licensee's Domain Name
in accordance with the terms of clause 7, or as directed by auDA. |
| 24 |
The Licensee agrees that in the event that the Licensee ceases
to meet the eligibility criteria prescribed in the Published
Policies for registering a Domain Name during the licence period
for its Domain Name, the Domain Name Licence may be cancelled by
either Melbourne IT or auDA. |
| TERMINATION OR EXPIRY OF AGREEMENT |
| 25 |
Where the Licensee transfers its Domain Name from Melbourne IT
to another auDA accredited registrar in accordance with the
Published Poicies and the terms of this Agreement, the parties
agree that this Agreement will terminate effective from the date
of such transfer. |
| 26 |
The parties agree that this Agreement will terminate on the
effective date of cancellation of the Licensee's Domain Name in
accordance with the terms set out in clauses 22-24. |
| 27 |
The parties agree that this Agreement will expire where the
Licensee's Domain Name licence expires and is not renewed by the
Licensee prior to the deletion of the Domain Name. |
| 28 |
Expiration of the domain name license.
| (a) |
You may renew your domain name with Melbourne IT at any time before the date 30 days after the Expiry Date (Renewal Deadline). |
| (b) |
Additional Provisions for Undelegated and Expiring Domain Names
| 1. |
On registration of a domain name with Melbourne IT as registrar Melbourne IT may by default delegate that name to resolve to a Melbourne IT Parked Page. Registrant acknowledges and agrees that the Melbourne IT Parked Page may include a statement and graphics to the effect that the website/domain name is registered/powered by Melbourne IT; links to Melbourne IT's website; links to third party websites, advertising of Melbourne IT products and services and advertising content from or about a third party and/or their products and services. Registrant may opt-out of the display of the Melbourne IT Parked Page prior to the Expiry Date by:
i. registering the domain name with a Melbourne IT Authorised Reseller who has agreed with Melbourne IT not to participate;
ii. delegating its domain name to a different nameserver; or
iii. giving written notice to Melbourne IT Limited at Level 2, 120 King Street, Melbourne 3000 Australia (or such other business address notified from time to time by Melbourne IT on its web site). |
| 2. |
Melbourne IT may elect to lock the domain name at any time and Registrant may unlock the domain name at any time subject to any relevant policies, procedures and processes (for example, relating to a UDRP dispute).
|
| 3. |
Following the Expiry Date, Melbourne IT may delegate (or re-delegate, if applicable) any domain name registered through Melbourne IT as registrar to resolve to a Melbourne IT Parked Page.
|
| 4. |
Melbourne IT may from the Expiry Date state that the domain name may become available to be acquired or transferred to a third party following the expiration of the Renewal Deadline via the Melbourne IT Parked Page or such other means reasonably determined by Melbourne IT.
|
| 5. |
If Registrant has not renewed the domain name by the Renewal Deadline, Melbourne IT may transfer the domain name to a third party (Transferee) on Registrant's behalf and as Registrant's agent (Registrant Domain Name Transfer).
|
| 6. |
In order to facilitate a Registrant Domain Name Transfer, Registrant agrees that Melbourne IT will undertake the process set out on the Melbourne IT website, if any.
|
| 7. |
Registrant acknowledges that if Melbourne IT undertakes any of the actions contemplated by clauses 4 or 5, any services in connection with the domain name (including without limitation, any email services) will cease.
|
| 8. |
Registrant agrees that Melbourne IT may cease and not complete a Registrant Domain Name Transfer for any reason at any time (including, without limitation, if any dispute is raised in connection with the domain name or if Melbourne IT is required to do so to comply with any order or direction of auDA, any applicable registry administrator or enforcement agency, or Melbourne IT elects to comply with any request from such party to do so).
|
| 9. |
Nothing in this clause 26 will constitute an obligation for Melbourne IT to effect or an express or implied guarantee or warranty that Melbourne IT will be successful in effecting a Registrant Domain Name Transfer. In addition Melbourne IT takes no responsibility for (and will have no liability to Registrant for) any act (or omission) of the Third Party Provider arising directly or indirectly out of the auction or sale of the domain name, including, without limitation, with respect to the finalisation of the auction or sale of the domain name of the domain name by the Third Party Provider.
|
| 10. |
Nothing in this clause 26 shall require Melbourne IT to perform any act or thing which, in Melbourne IT's sole discretion, is inconsistent with or disadvantageous to its role as registrar under this Agreement or otherwise, or result in Melbourne IT not being entitled to exercise any other right available to Melbourne IT under this Agreement.
|
|
|
| auDA PUBLISHED POLICY |
| 29 |
In this clause, auDA Published Policies means those specifications and policies established and published by auDA from time to time at http://www.auda.org.au. |
| 30 |
Registrant must comply with all auDA Published Policies, as if they were incorporated into, and form part of this agreement, then the auDA Published Policy will prevail to the extent of such inconsistency. |
| 31 |
Registrant acknowledges that under the auDA Published Policies:
| (a) |
there is more mandatory terms and conditions that apply to all domain name licences, and such terms and conditions are incorporated into, and form part of, this agreement; and |
| (b) |
registrant is bound by, and must submit to, the .au Dispute Resolution Policy; and |
| (c) |
auDA may delete or cancel the registration of a .au domain name. |
|
| auDA'S LIABILITIES AND INDEMNITY |
| 32 |
To the fullest extent permitted by law, auDA will not be liable to registrant for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss of corruption of data, business interruption or indirect costs) suffered by Registrant arising from as a result of, or otherwise in connection with, any act or omission whatsoever of auDA, its employees, agents or contractors. |
| 33 |
Registrant agrees to indemnify, keep indemnified and hold auDA, its employees, agents and contracts harmless for all and any claims arising from, as a result of, or otherwise in connection with, Registrant's registration or use of its .au domain name. |
| 34 |
Nothing in this document is intended to exclude the operation of Trade Practices Act 1974. |
| DISPUTES |
| 35 |
The Licensee agrees to be bound by the auDA dispute
resolution policy, auDRP (the .au Dispute Resolution Policy) in
the event of disputes between Melbourne IT and the Licensee, or
between the Licensee and a third party, in relation to a party's
entitlements to register or maintain a Domain Name registration. |
| 36 |
The Licensee acknowledges that auDA may develop and implement
other dispute resolution policies. The Licensee agrees to be bound
by such dispute resolution policies where notified to the Licensee
by auDA. |
| SUSPENSION, CANCELLATION AND TRANSFER |
| 37 |
Registrant agrees that registration of its domain name shall be subject to suspension, cancellation or transfer by any auDA procedure, or by any registry administrator procedure approved by auDA policy:
| (a) |
to correct mistakes by Registrar or the registry administrator in registering the domain name; |
| (b) |
for the resolution of disputes concerning the domain name; or |
| (c) |
in case of arbitration or court proceedings being commenced with respect to the rights to the domain name. |
In addition to the above rights, Melbourne IT may suspend or cancel the registration of Registrant's domain name, or, suspend the delegation of Registrant's Domain Name, if as reasonably determined by Melbourne IT in its sole discretion, the Registrant or any other person uses the domain name in connection with any:
| (d) |
activity that infringes the intellectual property rights or other rights of any third party; |
| (e) |
activity that defames or disparages any third party; or |
| (f) |
otherwise illegal or fraudulent activity, or otherwise in accordance with Melbourne IT's Acceptable Use Policy. |
|
| LIABILITY |
| 38 |
The parties agree that notwithstanding any other provision of
this Agreement and to the fullest extent permitted by law, neither
auDA, the Registry Operator nor Melbourne IT will be liable to the
Licensee for direct, consequential or indirect loss or damages of
any kind (including, without limitation, loss of profit, loss or
corruption of data, business interruption or indirect costs)
suffered by the Licensee as a result of any act or omission of
auDA, the Registry Operator or Melbourne IT, or any act or omission
of the officers, employees, agents or sub-contractors of auDA, the
Registry Operator or Melbourne IT. |
| 39 |
If any legislation implies in this Agreement a term or warranty,
the Licensee agrees that Melbourne IT's liability under this
Agreement for a breach of that term or warranty is limited to, in
the sole discretion of Melbourne IT, the re-supply of the goods or
services again, or the payment of the cost of having the goods
repaired or replaced, or the services supplied again. |
| 40 |
The parties agree that clauses 38 and 39 survive the expiry or
termination of this Agreement. |
| GENERAL |
| 41 |
If any clause of these terms and conditions is held to be
invalid or unenforceable in whole or part, the invalid or
unenforceable wording shall be deemed to be omitted. |
| 42 |
Any notice to be given under the contract is be deemed to be
served if delivered by hand or sent by pre-paid post, by fax or
e-mail, to the party to whom it is given at its last known postal
or e-mail address or fax number. |
| 43 |
The contract is governed by Victorian law, and the Licensee
and Melbourne IT submit to the non-exclusive jurisdiction of the
Victorian courts. |
| 44 |
The parties agree that Melbourne IT may assign this Agreement
to a third party on prior written notice to the Licensee. |
| 45 |
The failure of a party at any time to insist on strict
performance of any provision of this Agreement is not a waiver
of its right at any later time to insist on strict performance of
that or any other provision of this Agreement. |
