In
order to become a reseller of Freedomains, or
user of any Freedomains services, you must agree
to the following terms and conditions. Your
agreement to these terms will be indicated to
use by sending to us an application, duly completed
confirmation (if requested) or commencement
of reseller activities or use of any Freedomains
services, whichever occurs first.
The
following terms of business apply to any or
all of the domain name registration, Web site
hosting, email and Secure Web Page services
to be provided by Freedomains to you from time
to time, as well as any services provided by
us under any reseller agreement (Services and
individually Service). Server means the computer
server equipment operated by us in connection
with the provision of the Services. Web Site
means the area on the Server allocated by Freedomains
to you for use by you as a site on the Internet.
Secure Web Page means the Web page operated
and located on the Server which allows you to
collect credit card details in a means that
is difficult for other people to view the page
when it is loaded, because the page is encrypted.
SPECIAL
TERMS OF CONTRACTS
Domain
Name Registration terms
1.
We do not warrant or guarantee that the domain
name applied for will be registered in your
name or is capable of being registered by you.
Accordingly, you should take no action in respect
of your requested domain name(s) until you have
been notified that your requested domain name
has been registered.
2.
Both the registration of the domain name and
its ongoing use are subject to the relevant
naming authority's terms and conditions of use
and you are responsible for ensuring that you
are aware of those terms and conditions and
can and do comply with them. You irrevocably
waive any claims you may have against us in
respect of the decision of a naming authority
to refuse to register a domain name and, without
limitation agree that the administration charge
paid by you to us shall be non-refundable in
any event.
3.
We accept no responsibility in respect of the
use of a domain name by you and any dispute
between you and any other individual or organisation
regarding a domain name must be resolved between
the parties concerned and we will take no part
in any such dispute. We reserve the right, on
our becoming aware of such a dispute, at our
sole discretion and without giving any reason,
to either suspend or cancel the domain name,
and/or to make appropriate representations to
the relevant naming authority.
4.
Registration of .com, .net, .org domain names
a.
Registration agreement
1. AGREEMENT. In this Registration Agreement
("Agreement") "you" and "your" refer to each
customer, "we", us" and " our" refer to Freedomains
Pty Ltd and "Services" refers to the domain
name registration provided by us as offered
through FreedomainsPty Ltd, the Registration Service
Provider ("RSP"). This Agreement explains our
obligations to you, and explains your obligations
to us for various Services.
2.
SELECTION OF A DOMAIN NAME. You represent that,
to the best of the your knowledge and belief,
neither the registration of the SLD name nor
the manner in which it is directly or indirectly
used infringes the legal rights of a third party
and that the Domain Name is not being registered
for any unlawful purpose.
3.
FEES. As consideration for the services you
have selected, you agree to pay to us, or your
respective Reseller Partner who remits payment
to us on your behalf, the applicable service(s)
fees. All fees payable hereunder are non-refundable.
As further consideration for the Services, you
agree to: (1) provide certain current, complete
and accurate information about you as required
by the registration process and (2) maintain
and update this information as needed to keep
it current, complete and accurate. All such
information shall be referred to as account
information ("Account Information"). You, by
completing and submitting this Agreement represent
that the statements in your application are
true.
4.
TERM. You agree that the Registration Agreement
will remain in full force during the length
of the term of your Domain Name Registration.
Should you choose to renew or otherwise lengthen
the term of your Domain Name Registration, then
the term of this Registration Agreement will
be extended accordingly. This Agreement will
remain in full force during the length of the
term of your Domain Name Registration as selected,
recorded, and paid for upon registration of
the Domain Name. Should you choose to renew
or otherwise lengthen the term of your Domain
Name Registration, then the term of this Registration
Agreement will be extended accordingly. Should
you transfer your domain name or should the
domain name otherwise be transferred due to
another Registrar, the terms and conditions
of this contract shall cease and shall be replaced
by the contractual terms in force for the purpose
of registering domain names then in force between
SLD holders and the new Registrar.
5.
MODIFICATIONS TO AGREEMENT. You agree, during
the period of this Agreement, that we may: (1)
revise the terms and conditions of this Agreement;
and (2) change the services provided under this
Agreement. Any such revision or change will
be binding and effective immediately on posting
of the revised Agreement or change to the service(s)
on our web site, or on notification to you by
e-mail or regular mail as per the Notices section
of this agreement. You agree to review our web
site, including the Agreement, periodically
to be aware of any such revisions. If you do
not agree with any revision to the Agreement,
you may terminate this Agreement at any time
by providing us with notice by e-mail or regular
mail as per the Notices section of this agreement.
Notice of your termination will be effective
on receipt and processing by us. You agree that,
by continuing to use the Services following
notice of any revision to this Agreement or
change in service(s), you shall abide by any
such revisions or changes. You further agree
to abide by the ICANN Uniform Dispute Resolution
Policy ("Dispute Policy") as amended from time
to time. You agree that, by maintaining the
reservation or registration of your domain name
after modifications to the Dispute Policy become
effective, you have agreed to these modifications.
You acknowledge that if you do not agree to
any such modifications, you may request that
your domain name be deleted from the domain
name database.
6.
MODIFICATIONS TO YOUR ACCOUNT. In order to change
any of your account information with us, you
must use your Account Identifier and Password
that you selected when you opened your account
with us. Please safeguard your Account Identifier
and Password from any unauthorized use. In no
event will we be liable for the unauthorized
use or misuse of your Account Identifier or
Password.
7.
DOMAIN NAME DISPUTE POLICY. If you reserved
or registered a domain name through us, or transferred
a domain name to us from another registrar,
you agree to be bound by the Dispute Policy,
which is incorporated herein and made a part
of this Agreement by reference. The current
version of the Dispute Policy may be found at
http://www.opensrs.org/legal/udrp.shtml. Please
take the time to familiarize yourself with this
policy.
8.
DOMAIN NAME DISPUTES. You agree that, if the
registration or reservation of your domain name
is challenged by a third party, you will be
subject to the provisions specified in the Dispute
Policy in effect at the time of the dispute.
You agree that in the event a domain name dispute
arises with any third party, you will indemnify
and hold us harmless pursuant to the terms and
conditions contained in the Dispute Policy.
For any dispute, you agree to submit to the
jurisdiction of the courts of The Province of
Ontario.
9.
ICANN POLICY. You agree that your registration
of the SLD name shall be subject to suspension,
cancellation, or transfer pursuant to any ICANN-adopted
policy, or pursuant to any registrar or registry
procedure not inconsistent with an ICANN-adopted
policy, (1) to correct mistakes by Registrar
or the Registry in registering the name or (2)
for the resolution of disputes concerning the
SLD name.
10.
AGENCY. Should you intend to license use of
a domain name to a third party you shall nonetheless
be the SLD holder of record and are therefore
responsible for providing your own full contact
information and for providing and updating accurate
technical and administrative contact information
adequate to facilitate timely resolution of
any problems that arise in connection with the
SLD. You shall accept liability for harm caused
by wrongful use of the SLD, unless you promptly
disclose the identity of the licensee to the
party providing you reasonable evidence of actionable
harm. You also represent that you have provided
notice of the terms and conditions in this Agreement
to the third party and that the third party
agrees to the terms of Disclosure and Use of
Registration Information (sections 18 and 19
of this Agreement).
11.
ANNOUNCEMENTS. We and the RSP reserve the right
to distribute information to you that is pertinent
to the quality or operation of our services
and those of our service partners. These announcements
will be predominately informative in nature
and may include notices describing changes,
upgrades, new products or other information
to add security or to enhance your identity
on the Internet.
12.
LIMITATION OF LIABILITY. You agree that our
entire liability, and your exclusive remedy,
with respect to any Services(s) provided under
this Agreement and any breach of this Agreement
is solely limited to the amount you paid for
such Service(s). We and our contractors shall
not be liable for any direct, indirect, incidental,
special or consequential damages resulting from
the use or inability to use any of the Services
or for the cost of procurement of substitute
services. Because some states do not allow the
exclusion or limitation of liability for consequential
or incidental damages, in such states, our liability
is limited to the extent permitted by law. We
disclaim any and all loss or liability resulting
from, but not limited to: (1) loss or liability
resulting from access delays or access interruptions;
(2) loss or liability resulting from data non-delivery
or data mis-delivery; (3) loss or liability
resulting from acts of God; (4) loss or liability
resulting from the unauthorized use or misuse
of your account identifier or password; (5)
loss or liability resulting from errors, omissions,
or misstatements in any and all information
or services(s) provided under this Agreement;
(6) loss or liability resulting from the interruption
of your Service. You agree that we will not
be liable for any loss of registration and use
of your domain name, or for 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 we have been advised of
the possibility of such damages. In no event
shall our maximum liability exceed five hundred
($500.00) dollars.
13.
INDEMNITY. You agree to release, indemnify,
and hold us, our contractors, agents, employees,
officers, directors and affiliates harmless
from all liabilities, claims and expenses, including
without limitation Network Solutions, Inc.,
and the directors, officers, employees and agents
of each of them, including attorney's fees,
of third parties relating to or arising under
this Agreement, the Services provided hereunder
or your use of the Services, including without
limitation infringement by you, or someone else
using the Service with your computer, of any
intellectual property or other proprietary right
of any person or entity, or from the violation
of any of our operating rules or policy relating
to the service(s) provided. You also agree to
release, indemnify and hold us harmless pursuant
to the terms and conditions contained in the
Dispute Policy. When we are threatened with
suit by a third party, we may seek written assurances
from you concerning your promise to indemnify
us; your failure to provide those assurances
may be considered by us to be a breach of your
Agreement and may result in deactivation of
your domain name.
14.
TRANSFER OF OWNERSHIP. The person named as administrative
contact at the time the controlling user name
and password are secured shall be the owner
of the domain name. You agree that prior to
transferring ownership of your domain name to
another person (the Transferee") you shall require
the Transferee to agree, in writing to be bound
by all the terms and conditions of this Agreement.
Your domain name will not be transferred until
we receive such written assurances or other
reasonable assurance that the Transferee has
been bound by the contractual terms of this
Agreement (such reasonable assurance as determined
by us in our sole discretion) along with the
applicable transfer fee. If the Transferee fails
to be bound in a reasonable fashion (as determine
by us in our sole discretion) to the terms and
conditions in this Agreement, any such transfer
will be null and void. Transfers attract an
AUD $100 administration fee.
15.
BREACH. You agree that failure to abide by any
provision of this Agreement, any operating rule
or policy or the Dispute Policy provided by
us, may be considered by us to be a material
breach and that we may provide a written notice,
describing the breach, to you. If within thirty
(30) calendar days of the date of such notice,
you fail to provide evidence, which is reasonably
satisfactory to us, that you have not breached
your obligations under the Agreement, then we
may delete the registration or reservation of
your domain name. Any such breach by you shall
not be deemed to be excused simply because we
did not act earlier in response to that, or
any other breach by you.
16.
NO GUARANTEE. You agree that, by registration
or reservation of your chosen domain name, such
registration or reservation does not confer
immunity from objection to either the registration,
reservation, or use of the domain name.
17.
DISCLAIMER OF WARRANTIES. You agree that your
use of our Services is solely at your own risk.
You agree that such Service(s) is provided on
an "as is," "as available" basis. We expressly
disclaim all warranties of any kind, whether
express or implied, including but not limited
to the implied warranties of merchantability,
fitness for a particular purpose and non-infringement.
We make no warranty that the Services will meet
your requirements, or that the Service(s) will
be uninterrupted, timely, secure, or error free;
nor do we make any warranty as to the results
that may be obtained from the use of the Service(s)
or as to the accuracy or reliability of any
information obtained through the Service or
that defects in the Service will be corrected.
You understand and agree that any material and/or
data downloaded or otherwise obtained through
the use of Service is done at your own discretion
and risk and that you will be solely responsible
for any damage to your computer system or loss
of data that results from the download of such
material and/or data. We make no warranty regarding
any goods or services purchased or obtained
through the Service or any transactions entered
into through the Service. No advice or information,
whether oral or written, obtained by you from
us or through the Service shall create any warranty
not expressly made herein.
18.
INFORMATION. As part of the registration process,
you are required to provide us certain information
and to update us promptly as such information
changes such that our records are current, complete
and accurate. You are obliged to provide us
the following information: i) Your name and
postal address (or, if different, that of the
domain name holder); ii) The domain name being
registered iii) The name, postal address, e-mail
address, and voice and fax (if available) telephone
numbers of the administrative contact for the
domain name. iv) The name, postal address, e-mail
address, and voice and fax (if available) telephone
numbers of the billing contact for the domain
name. Any other information which we request
from you at registration is voluntary. Any voluntary
information we request is collected such that
we can continue to improve the products and
services offered to you through your RSP.
19.
DISCLOSURE AND USE OF REGISTRATION INFORMATION.
You agree and acknowledge that we will make
domain name registration information you provide
available to ICANN, to the registry administrators,
and to other third parties as ICANN and applicable
laws may require or permit. You further agree
and acknowledge that we may make publicly available,
or directly available to third party vendors,
some, or all, of the domain name registration
information you provide, for purposes of inspection
(such as through our WHOIS service) or other
purposes as required or permitted by ICANN and
the applicable laws. You hereby consent to any
and all such disclosures and use of, and guidelines,
limits and restrictions on disclosure or use
of, information provided by you in connection
with the registration of a domain name (including
any updates to such information), whether during
or after the term of your registration of the
domain name. You hereby irrevocably waive any
and all claims and causes of action you may
have arising from such disclosure or use of
your domain name registration information by
us. You may access your domain name registration
information in our possession to review, modify
or update such information, by accessing our
domain manager service, or similar service,
made available by us through your RSP. We will
not process data about any identified or identifiable
natural person that we obtain from you in a
way incompatible with the purposes and other
limitations which we describe in this Agreement.
We will take reasonable precautions to protect
the information we obtain from you from our
loss, misuse, unauthorized access or disclosure,
alteration or destruction of that information.
20.
REVOCATION. Your willful provision of inaccurate
or unreliable information, your willful failure
promptly to update information provided to us,
or your failure to respond for over fifteen
calendar days to inquiries by us concerning
the accuracy of contact details associated with
the your registration shall constitute a material
breach of this Agreement and be a basis for
cancellation of the SLD registration.
21.
RIGHT OF REFUSAL. We, in our sole discretion,
reserve the right to refuse to register or reserve
your chosen domain name or register you for
other Services within thirty (30) calendar days
from receipt of your payment for such services.
In the event we do not register or reserve your
domain name or register you for other Services,
or we delete your domain name or other Services
within such thirty (30) calendar day period,
we agree to refund your applicable fee(s). You
agree that we shall not be liable to you for
loss or damages that may result from our refusal
to register, reserve, or delete your domain
name or register you for other Services.
22.
SEVERABILITY. You agree that the terms of this
Agreement are severable. If any term or provision
is declared invalid or unenforceable, that term
or provision will be construed consistent with
applicable law as nearly as possible to reflect
the original intentions of the parties, and
the remaining terms and provisions will remain
in full force and effect.
23.
NON-AGENCY. Nothing contained in this Agreement
or the Dispute Policy shall be construed as
creating any agency, partnership, or other form
of joint enterprise between the parties.
24.
NON-WAIVER. Our failure to require performance
by you of any provision hereof shall not affect
the full right to require such performance at
any time thereafter; nor shall the waiver by
us of a breach of any provision hereof be taken
or held to be a waiver of the provision itself.
25.
NOTICES. Any notice, direction or other communication
given under this Agreement shall be in writing
and given by sending it via e-mail or via regular
mail. In the case of e-mail, valid notice shall
only have been deemed to have been given when
an electronic confirmation of delivery has been
obtained by the sender. In the case of e-mail
notification to us at support@Freedomains.com.au
or, in the case of notice to you, at the e-mail
address provided by you in your WHOIS record.
Any e-mail communication shall be deemed to
have been validly and effectively given on the
date of such communication, if such date is
a business day and such delivery was made prior
to 4:00 p.m. EST, otherwise it will be deemed
to have been delivered on the next business
day. In the case of regular mail notice, valid
notice shall be deemed to have been validly
and effectively given 5 business days after
the date of mailing and, in the case of notification
to us or to the RSP shall be sent to:
Support
Department
Freedomains Pty Ltd
PO Box 576 Parramatta
NSW 2124 Australia
and
in the case of notification to you shall be
to the address specified in the "Administrative
Contact" in your WHOIS record.
26.
ENTIRETY. You agree that this Agreement, the
rules and policies published by us and the Dispute
Policy are the complete and exclusive agreement
between you and us regarding our Services. This
Agreement and the Dispute Policy supersede all
prior agreements and understandings, whether
established by custom, practice, policy or precedent.
27.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND INTERPRETED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF PROVINCE OF ONTARIO AND THE
FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT
REFERENCE TO RULES GOVERNING CHOICE OF LAWS.
ANY ACTION RELATING TO THIS AGREEMENT MUST BE
BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT
TO THE JURISDICTION OF SUCH COURTS.
28.
INFANCY. You attest that you are of legal age
to enter into this Agreement.
29.
ACCEPTANCE OF AGREEMENT. YOU ACKNOWLEDGE THAT
YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL
ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY
EVALUATED THE DESIRABILITY OF THE SERVICE AND
ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT.,
GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH
IN THIS AGREEMENT.
b.
Dispute Resolution
1.
Purpose. This Uniform Domain Name Dispute Resolution
Policy (the "Policy") has been adopted by the
Internet Corporation for Assigned Names and
Numbers ("ICANN"), is incorporated by reference
into your Registration Agreement, and sets forth
the terms and conditions in connection with
a dispute between you and any party other than
us (the registrar) over the registration and
use of an Internet domain name registered by
you. Proceedings under Paragraph 4 of this Policy
will be conducted according to the Rules for
Uniform Domain Name Dispute Resolution Policy
(the "Rules of Procedure"), which are available
at www.icann.org/udrp/udrp-rules-24oct99.htm,
and the selected administrative-dispute-resolution
service provider's supplemental rules.
2.
Your Representations. By applying to register
a domain name, or by asking us to maintain or
renew a domain name registration, you hereby
represent and warrant to us that (a) the statements
that you made in your Registration Agreement
are complete and accurate; (b) to your knowledge,
the registration of the domain name will not
infringe upon or otherwise violate the rights
of any third party; (c) you are not registering
the domain name for an unlawful purpose; and
(d) you will not knowingly use the domain name
in violation of any applicable laws or regulations.
It is your responsibility to determine whether
your domain name registration infringes or violates
someone else's rights.
3.
Cancellations, Transfers, and Changes. We will
cancel, transfer or otherwise make changes to
domain name registrations under the following
circumstances:
a.
subject to the provisions of Paragraph 8, our
receipt of written or appropriate electronic
instructions from you or your authorized agent
to take such action;
b.
our receipt of an order from a court or arbitral
tribunal, in each case of competent jurisdiction,
requiring such action; and/or
c. our receipt of a decision of an Administrative
Panel requiring such action in any administrative
proceeding to which you were a party and which
was conducted under this Policy or a later version
of this Policy adopted by ICANN. (See Paragraph
4(i) and (k) below.)
We
may also cancel, transfer or otherwise make
changes to a domain name registration in accordance
with the terms of your Registration Agreement
or other legal requirements.
4.
Mandatory Administrative Proceeding. This Paragraph
sets forth the type of disputes for which you
are required to submit to a mandatory administrative
proceeding. These proceedings will be conducted
before one of the administrative-dispute-resolution
service providers listed at www.icann.org/udrp/approved-providers.htm
(each, a "Provider").
a.
Applicable Disputes. You are required to submit
to a mandatory administrative proceeding in
the event that a third party (a "complainant")
asserts to the applicable Provider, in compliance
with the Rules of Procedure, that (i) your domain
name is identical or confusingly similar to
a trademark or service mark in which the complainant
has rights; and (ii) you have no rights or legitimate
interests in respect of the domain name; and
(iii) your domain name has been registered and
is being used in bad faith. In the administrative
proceeding, the complainant must prove that
each of these three elements are present.
b.
Evidence of Registration and Use in Bad Faith.
For the purposes of Paragraph 4(a)(iii), the
following circumstances, in particular but without
limitation, if found by the Panel to be present,
shall be evidence of the registration and use
of a domain name in bad faith: (i) circumstances
indicating that you have registered or you have
acquired the domain name primarily for the purpose
of selling, renting, or otherwise transferring
the domain name registration to the complainant
who is the owner of the trademark or service
mark or to a competitor of that complainant,
for valuable consideration in excess of your
documented out-of-pocket costs directly related
to the domain name; or (ii) you have registered
the domain name in order to prevent the owner
of the trademark or service mark from reflecting
the mark in a corresponding domain name, provided
that you have engaged in a pattern of such conduct;
or (iii) you have registered the domain name
primarily for the purpose of disrupting the
business of a competitor; or (iv) by using the
domain name, you have intentionally attempted
to attract, for commercial gain, Internet users
to your web site or other on-line location,
by creating a likelihood of confusion with the
complainant's mark as to the source, sponsorship,
affiliation, or endorsement of your web site
or location or of a product or service on your
web site or location.
c.
How to Demonstrate Your Rights to and Legitimate
Interests in the Domain Name in Responding to
a Complaint. When you receive a complaint, you
should refer to Paragraph 5 of the Rules of
Procedure in determining how your response should
be prepared. Any of the following circumstances,
in particular but without limitation, if found
by the Panel to be proved based on its evaluation
of all evidence presented, shall demonstrate
your rights or legitimate interests to the domain
name for purposes of Paragraph 4(a)(ii): (i)
before any notice to you of the dispute, your
use of, or demonstrable preparations to use,
the domain name or a name corresponding to the
domain name in connection with a bona fide offering
of goods or services; or (ii) you (as an individual,
business, or other organization) have been commonly
known by the domain name, even if you have acquired
no trademark or service mark rights; or (iii)
you are making a legitimate noncommercial or
fair use of the domain name, without intent
for commercial gain to misleadingly divert consumers
or to tarnish the trademark or service mark
at issue.
d.
Selection of Provider. The complainant shall
select the Provider from among those approved
by ICANN by submitting the complaint to that
Provider. The selected Provider will administer
the proceeding, except in cases of consolidation
as described in Paragraph 4(f).
e.
Initiation of Proceeding and Process and Appointment
of Administrative Panel. The Rules of Procedure
state the process for initiating and conducting
a proceeding and for appointing the panel that
will decide the dispute (the "Administrative
Panel").
f.
Consolidation. In the event of multiple disputes
between you and a complainant, either you or
the complainant may petition to consolidate
the disputes before a single Administrative
Panel. This petition shall be made to the first
Administrative Panel appointed to hear a pending
dispute between the parties. This Administrative
Panel may consolidate before it any or all such
disputes in its sole discretion, provided that
the disputes being consolidated are governed
by this Policy or a later version of this Policy
adopted by ICANN.
g.
Fees. All fees charged by a Provider in connection
with any dispute before an Administrative Panel
pursuant to this Policy shall be paid by the
complainant, except in cases where you elect
to expand the Administrative Panel from one
to three panelists as provided in Paragraph
5(b)(iv) of the Rules of Procedure, in which
case all fees will be split evenly by you and
the complainant.
h.
Our Involvement in Administrative Proceedings.
We do not, and will not, participate in the
administration or conduct of any proceeding
before an Administrative Panel. In addition,
we will not be liable as a result of any decisions
rendered by the Administrative Panel.
i.
Remedies. The remedies available to a complainant
pursuant to any proceeding before an Administrative
Panel shall be limited to requiring the cancellation
of your domain name or the transfer of your
domain name registration to the complainant.
j.
Notification and Publication. The Provider shall
notify us of any decision made by an Administrative
Panel with respect to a domain name you have
registered with us. All decisions under this
Policy will be published in full over the Internet,
except when an Administrative Panel determines
in an exceptional case to redact portions of
its decision.
k.
Availability of Court Proceedings. The mandatory
administrative proceeding requirements set forth
in Paragraph 4 shall not prevent either you
or the complainant from submitting the dispute
to a court of competent jurisdiction for independent
resolution before such mandatory administrative
proceeding is commenced or after such proceeding
is concluded. If an Administrative Panel decides
that your domain name registration should be
canceled or transferred, we will wait ten (10)
business days (as observed in the location of
our principal office) after we are informed
by the applicable Provider of the Administrative
Panel's decision before implementing that decision.
We will then implement the decision unless we
have received from you during that ten (10)
business day period official documentation (such
as a copy of a complaint, file-stamped by the
clerk of the court) that you have commenced
a lawsuit against the complainant in a jurisdiction
to which the complainant has submitted under
Paragraph 3(b)(xiii) of the Rules of Procedure.
(In general, that jurisdiction is either the
location of our principal office or of your
address as shown in our Whois database. See
Paragraphs 1 and 3(b)(xiii) of the Rules of
Procedure for details.) If we receive such documentation
within the ten (10) business day period, we
will not implement the Administrative Panel's
decision, and we will take no further action,
until we receive (i) evidence satisfactory to
us of a resolution between the parties; (ii)
evidence satisfactory to us that your lawsuit
has been dismissed or withdrawn; or (iii) a
copy of an order from such court dismissing
your lawsuit or ordering that you do not have
the right to continue to use your domain name.
5.
All Other Disputes and Litigation. All other
disputes between you and any party other than
us regarding your domain name registration that
are not brought pursuant to the mandatory administrative
proceeding provisions of Paragraph 4 shall be
resolved between you and such other party through
any court, arbitration or other proceeding that
may be available.
6.
Our Involvement in Disputes. We will not participate
in any way in any dispute between you and any
party other than us regarding the registration
and use of your domain name. You shall not name
us as a party or otherwise include us in any
such proceeding. In the event that we are named
as a party in any such proceeding, we reserve
the right to raise any and all defenses deemed
appropriate, and to take any other action necessary
to defend ourselves.
7.
Maintaining the Status Quo. We will not cancel,
transfer, activate, deactivate, or otherwise
change the status of any domain name registration
under this Policy except as provided in Paragraph
3 above.
8.
Transfers During a Dispute.
a.
Transfers of a Domain Name to a New Holder.
You may not transfer your domain name registration
to another holder (i) during a pending administrative
proceeding brought pursuant to Paragraph 4 or
for a period of fifteen (15) business days (as
observed in the location of our principal place
of business) after such proceeding is concluded;
or (ii) during a pending court proceeding or
arbitration commenced regarding your domain
name unless the party to whom the domain name
registration is being transferred agrees, in
writing, to be bound by the decision of the
court or arbitrator. We reserve the right to
cancel any transfer of a domain name registration
to another holder that is made in violation
of this subparagraph.
b. Changing Registrars. You may not transfer
your domain name registration to another registrar
during a pending administrative proceeding brought
pursuant to Paragraph 4 or for a period of fifteen
(15) business days (as observed in the location
of our principal place of business) after such
proceeding is concluded. You may transfer administration
of your domain name registration to another
registrar during a pending court action or arbitration,
provided that the domain name you have registered
with us shall continue to be subject to the
proceedings commenced against you in accordance
with the terms of this Policy. In the event
that you transfer a domain name registration
to us during the pendency of a court action
or arbitration, such dispute shall remain subject
to the domain name dispute policy of the registrar
from which the domain name registration was
transferred.
9.
Policy Modifications. We reserve the right to
modify this Policy at any time with the permission
of ICANN. We will post our revised Policy at
at least thirty (30) calendar days before
it becomes effective. Unless this Policy has
already been invoked by the submission of a
complaint to a Provider, in which event the
version of the Policy in effect at the time
it was invoked will apply to you until the dispute
is over, all such changes will be binding upon
you with respect to any domain name registration
dispute, whether the dispute arose before, on
or after the effective date of our change. In
the event that you object to a change in this
Policy, your sole remedy is to cancel your domain
name registration with us, provided that you
will not be entitled to a refund of any fees
you paid to us. The revised Policy will apply
to you until you cancel your domain name registration.
Web
Site Hosting/email/Secure Web Page terms
1.
We specifically exclude any warranty as to the
accuracy or quality of information received
by any person via the Server and in no event
will we be liable for any loss or damage to
any data stored on the Server. You are responsible
for maintaining insurance cover in respect of
any loss or damage to data stored on the Server.
You warrant to us that you will only use your
assigned Web Site for lawful purposes. In particular,
you further warrant and undertake to us that:
a.
you will not, nor will you authorise or permit
any other person to, use the Server in violation
of any law or regulation;
b.
you will not knowingly or recklessly post, link
to or transmit any material:
i.
that is unlawful, threatening, abusive, harmful,
malicious, defamatory, violent or teaching violence,
obscene, pornographic, profane or otherwise
objectionable in any way; or
ii.
containing a virus or other hostile computer
program;
iii.
that shall constitute or encourage a criminal
offence, give rise to civil liability or that
violates or infringes any trade mark, copyright,
other intellectual property rights or similar
rights of any person under the laws of any jurisdiction;
and
c.
you will conform to the standards made available
by us from time to time and will not yourself,
and will ensure that none of your end users,
make excessive or wasteful use of the Server
to our detriment or that of our other customers.
2.
You are responsible for sending mail in accordance
with any relevant legislation (including data
protection legislation) and for sending the
same in a secure manner. We will take all reasonable
steps to ensure accurate and prompt routing
of messages but we will not accept any liability
for non-receipt or misrouting or any other failure
of email
3.
You warrant, undertake and agree that:
a.
any transactions within your Web site which
are contracts for the sale of goods or services
will be between you as the merchant and your
end-user customer and you agree that we may
include an exclusion of our liability in respect
of such purchases and transactions in such form
as we deem appropriate;
b.
the information contained within your Web site
will comply with all applicable law, and codes
of practice governing the use of Web sites and
related services, including, without limitation,
those laws and/or codes of practice governing
distance selling and data protection from time
to time in force;
c.
you will keep secure any identification, password
and other confidential information relating
to your account and you will notify us immediately
of any known or suspected unauthorised use of
your account, or any known or suspected breach
of security, including loss, theft or unauthorised
disclosure of your password information. Notwithstanding
such notification you will be liable for any
and all uses of your account (and Web site)
notwithstanding any fraudulent or improper use
of your password or any other access to any
of the facilities we offer which is not unauthorised
use or access by us.
4.
Whilst we shall use reasonable endeavours to
ensure the integrity and security of the Server,
we do not guarantee that the Server will be
free from unauthorised users or hackers.
Reseller
Partner terms
1.
If you are or become a reseller of our Services
you must ensure that you continue to comply
with these terms and conditions by making your
customers bound to no less comprehensive and
protective terms and conditions than these.
2.
You agree that in your capacity as reseller
of our services you will not incur any liability
on our part or in any way pledge or purport
to pledge our credit or purport to make any
contract binding on us.
3.
We do not accept the liability or default of
your own customers as affecting or limiting
your obligations under this agreement and we
suggest that you require your customers to sign
a form of this agreement.
4.
As a reseller of our Services, you are responsible
for ensuring that any promotional, advertising
or other material you distribute to your customers
(whether in paper form or electronically):
a.
does not contain any misrepresentation relating
to Freedomains or the nature of your relationship
with Freedomains;
b.
is in accordance with all applicable advertising
standards;
c.
does not contravene any law of the relevant
jurisdiction;
d.
is appropriate in all the circumstances;>
and
that you otherwise comply with all laws and
regulations governing the exercise of your right
as reseller under this agreement.
5.
We retain the right to require you to cease
distribution of any advertising, promotional
and/or other material which in our view is unacceptable
by reference to the criteria referred to at
paragraph 4 above.
6.
You agree to indemnify, keep indemnified
and hold us harmless from and against any claim
brought against us by a third party resulting
from the provision of our Services by you to
your customers, and in respect of all losses,
costs, actions, proceedings, claims, damages,
expenses (including reasonable legal costs and
expenses) or liabilities whatsoever suffered
and howsoever incurred by us as a consequence
of your breach or non-observance of the Reseller
and PISP Terms.
GENERAL
TERMS AND CONDITIONS
The
following terms and conditions apply to all
reseller and PISP contracts and provision of
all Services, including the registration of
.au.com sub-domains the special terms for which
are set out below:
Service
Availability
We
shall use reasonable endeavours to provide continuing
availability of the Server and the Services
but we shall not, in any event, be liable for
Service interruptions or down time of the Server.
Intellectual
Property Rights and other consents
You
are solely responsible for obtaining any and
all necessary intellectual property rights clearances
and/or other consents and authorisations, including
without limitation, clearances and/or consents
in respect of your proposed domain name and
merchant services agreements between you and
the relevant financial institutions.
Indemnity
You
agree to indemnify and keep indemnified and
hold us harmless from and against any claim
brought against us by a third party resulting
from the provision of Services by us to you
and your use of the Server, and in respect of
all losses, costs, actions, proceedings, claims,
damages, expenses (including reasonable legal
costs and expenses), or liabilities, whatsoever
suffered and howsoever incurred by us in consequence
of your breach or non-observance of these terms.
Termination
1.
We may terminate this agreement forthwith if
you fail to pay any sums due to us as they fall
due.
2.
We may terminate this agreement upon written
notice if you breach any of these terms and
conditions and you fail to correct the breach
within thirty (30) days following written notice
from us specifying the breach, or if you are
a company you go into insolvent liquidation,
or if you are a person you are declared bankrupt.
3.
On termination of this agreement we shall be
entitled immediately to block your Web Site
and to remove all data located on it. We will
hold such data for a period of 14 days and allow
you to collect it, at your expense, failing
which we shall be entitled to delete all such
data. We shall further be entitled to post such
notice in respect of the non-availability of
your Web Site as we think fit.
4.
Canellation of any of our products or services,
at any time, will incur a $99.00 cancellation
fee. A cancellation fee will also be charged
for the relavent fee's associated with any domain
names that have been cancelled.
Payment
1.
All charges payable by you to us for the Services
shall be in accordance with the relevant scale
of charges and rates published from time to
time by us on our Web site and shall be due
and payable within fifteen (15) days of receipt
of our invoice therefore.
2.
The provision by us of the Services is contingent
upon our having received payment in full from
you in respect of the relevant Services. Without
prejudice to our other rights and remedies under
this agreement, if any sum payable is not paid
on or before the due date, we reserve the right,
forthwith and at our sole discretion, to suspend
the provision of Services to you.
Exclusion
and Limitation of Liability
1.
TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY
EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY
SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH
IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE
NO EXPRESS OR IMPLIED WARRANTIES INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING
FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE,
WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED
UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY US,
OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES
SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE
THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN,
AND YOU MAY NOT RELY ON ANY SUCH INFORMATION
OR ADVICE.
2.
Our total aggregate liability to you for any
claim in contract, tort, negligence or otherwise
arising out of or in connection with the provision
of the Services shall be limited to the charges
paid by you in respect of the Services which
are the subject of any such claim and provided
that you notify us of any such claim within
one year of it arising.
3.
In no event shall we be liable to you for any
loss of business, contracts, profits or anticipated
savings or for any other indirect or consequential
or economic loss whatsoever.
IMPORTANT
NOTE: In the event that this agreement constitutes
a supply of goods or services to a consumer
as defined in the Trade Practices Act 1974
(Cth) or any other national, State or Territory
legislation (the Acts) nothing contained in
this agreement excludes, restricts or modifies
any condition, warranty or other obligation
in relation to this agreement and the goods
and you where to do so is unlawful. To the full
extent permitted by law, where the benefit of
any such condition, warranty or other obligation
is conferred upon you pursuant to any of the
Acts, our sole liability for breach of any such
condition, warranty or other obligation, including
any consequential loss which you may sustain
or incur, shall be limited (except as otherwise
specifically set forth herein) to:
a.
in relation to goods
i.
the replacement of the goods or the supply of
equivalent goods or payment of the cost of replacing
the goods or acquiring equivalent goods; or
ii.
the repair of the goods or payment of the cost
of having the goods repaired;
b.
in relation to services
i.
the supplying of the services again; or
ii.
The payment of the cost of having the services
supplied again
as
in each case we may elect.
Notices
Except
where expressly provided otherwise, any notice
to be given by either party to the other may
be sent by either email, fax, post or courier
to the address of the other party as appearing
in this agreement or ancillary application forms
or such other address as such party may from
time to time have communicated to the other
in writing, and if sent by email shall unless
the contrary is proved be deemed to be received
on the day it was sent or if sent by fax shall
be deemed to be served on receipt of an error
free transmission report, or if sent by post
or courier shall be deemed to be served two
days following the date of posting.
Severability
If
any clause of these terms and conditions is
held to be invalid or unenforceable in whole
or in part, the invalid or unenforceable wording
shall be deemed to be omitted.
Assignment
The
benefit of this agreement may be assigned by
us, but not our obligations to you - to do that,
you agree that we may give notice to you in
writing, and your failure to respond will be
deemed acceptance. You may transfer this agreement
provided that you give us notice in the form
we require (setting out the details of the assignee)
accompanied by payment of any transfer fee specified
by us. No other method of transfer by you is
permitted.
Change
to Terms on Renewal
We
may change the terms and conditions of this
Agreement on renewal or assignment/transfer,
by notice in writing to you (or the assignee/transferee,
as the case may be).
Entire
Agreement
These
terms and conditions constitute the entire agreement
between Freedomains and you, and supersede all
prior agreements, understandings and representations
whether oral or written. No oral explanation
or oral information given by any party shall
alter the interpretation of these terms and
conditions. Except as provided above, no variation
may be made to the contract unless it is in
writing and signed by authorised representatives
of you and Freedomains.
Entire
Agreement, Governing Law
This
agreement shall be governed by the laws in force
in the state of New South Wales. Both parties
hereby submit to the exclusive jurisdiction
of the Courts of that State.
