Updated April 2005
These are the standard terms and conditions of supply of the Service offered from time to time by Melbourne IT.
Please read these terms and conditions carefully. It is a condition of your use of the Service that you ("you") comply with these terms and conditions.
In this agreement:
2.1 This agreement begins on the Commencement Date and may be terminated by Melbourne IT or by you as permitted in this agreement.
2.2 We may vary these terms or the terms of the operation of any Service, at any time by a general notice on a page of the Internet referred to on the page of the Melbourne IT Web Site at http://www.melbourneit.com.au/policies/. Changes other than price changes will become effective upon publication of the notice.
Subject to clause 7, where we vary the charges for any Service, we will notify you of these variations either by a general notice on a page of the Internet referred to on the home page of the Melbourne IT Web Site at http://www.melbourneit.com.au/policies/ or such other page notified from Melbourne IT to you from time to time, or, by written notice to you. Where we vary any charges for the Services, we will give at least 30 days notice of the change by either of the preceding means, and the new prices will apply at the end of that period.
2.3 If you use the Service after publication of any change in accordance with clause 2.2, your use will constitute acceptance of the amended terms.
2.4 If this agreement is completed by an agent for you, you are nonetheless bound by this agreement as a principal. In addition, your use of the Service will constitute ratification of any unauthorised act of your agent (if applicable).
2.5 These terms constitute the agreement in its entirety and supersede all prior agreements.
3.1 Melbourne IT will provide the Service to you in connection with any Service Domain Name. By subscribing to the Service with respect to the Relevant Domain Name, you authorise and agree that Melbourne IT may process correspondence (including Communications) and telephone calls in the manner described in this agreement. You acknowledge that authorising Melbourne IT to process such correspondence (including Communications) and telephone calls in the manner described in this agreement will (or may) result in you not receiving all correspondence (including Communications) and telephone calls and you hereby waive, and each Relevant Party specifically disclaims, any Loss and Damage, that you may incur as a result.
3.2 Melbourne IT will substitute the details of itself or any related body corporate of Melbourne IT for your Contact Details for the Relevant Domain Name in the WHOIS. Unless otherwise permitted in this agreement, Melbourne IT will not display your Contact Details in the WHOIS for the term of this agreement.
3.3 Melbourne IT will process any correspondence (including Communications) and telephone calls received regarding the Relevant Domain Name as described below. You must promptly respond to all communications from Melbourne IT (as contemplated below) and at a minimum, in accordance with the time frames specified below.
3.3.1 Email: Melbourne IT will use all reasonable efforts to filter the email for Junk Mail. Any sender of an email that is not otherwise filtered out by Melbourne IT as Junk Mail will be directed to complete a form. If this form is not validly completed by the sender (in Melbourne IT’s sole discretion), you will not be notified of receipt of the email. If the form is validly completed by the sender (in Melbourne IT’s sole discretion), and provided that the sender completes the form in a timely manner, the email message of the sender will be forwarded by Melbourne IT to the administrative contact (as specified in your Contact Details) of the Relevant Domain Name within 3 business days of receipt. If (for whatever reason), the email address of such administrative contact is undeliverable, Melbourne IT will not be required to contact you through any other medium.
3.3.2 Postal: Melbourne IT will sort and open all postal mail. Any postal mail that is not a Communication will be destroyed by Melbourne IT. In addition, Melbourne IT will destroy any Communication that it determines (in its sole discretion) is or could be Junk Mail. Melbourne IT will use all reasonable commercial efforts to scan any reasonable sized Communication that is not Junk Mail and forward the scanned Communication to the email address of the administrative contact (as specified in your Contact Details) of the Relevant Domain Name within 3 business days of receipt. If (for whatever reason), the email address of such administrative contact is undeliverable, Melbourne IT will not be required to contact you through any other medium. The administrative contact will have 5 business days to confirm to Melbourne IT that it wishes to obtain a physical copy of the scanned Communication. If the administrative contact confirms that it wishes to receive a physical copy of the scanned Communication, a physical copy of the Communication will be sent to such administrative contact at the administrative contact’s expense, or, if the physical copy of the scanned Communication is a legal notice or Uniform Dispute Resolution Policy notice or correspondence, at Melbourne IT’s expense. You acknowledge that any scanned Communication forwarded to the administrative contact at the administrative contact’s expense will require the payment of that expense prior to it being provided to the administrative contact. If the administrative contact fails to respond to Melbourne IT within 5 business days or if such email address is undeliverable, Melbourne IT reserves the right to destroy the Communication following the expiration of 30 days from its receipt by Melbourne IT. In addition, if any Communication is unable to be scanned by Melbourne IT, Melbourne IT will use all reasonable commercial efforts to forward that Communication to the administrative contact (as specified in your Contact Details) of the Relevant Domain Name by mail.
3.3.3 Telephone: If a telephone call is received by Melbourne IT, the caller will be informed about how to contact the administrative contact of the Relevant Domain Name.
3.4 You must terminate the Service pertaining to a Relevant Domain Name in accordance with the procedure notified from time to time by Melbourne IT prior to implementing a change of registrant or registrar in relation to the Relevant Domain Name.
4.1 You must provide us with your Contact Details. You must also provide Melbourne IT with any updates to such Contact Details that may be required from time to time.
4.2 In addition to any other rights under this agreement, Melbourne IT may disclose the Contact Details regarding the Relevant Domain Name without any liability to you:
4.2.1 if Melbourne IT considers that disclosure is necessary or desirable to comply with the requirements or directions of any Regulator or Registry, any applicable law, regulation or rule, subpoena, court order or enforcement agency request; or
4.2.2 if any third party institutes proceedings against Melbourne IT, or threatens to take proceedings against any Relevant Party, directly or indirectly, with respect to the Relevant Domain Name.
4.3 If we make any enquiry to you relating to any Contact Details, you must respond and provide any requested information to us within 3 business days.
4.4 You acknowledge that Melbourne IT will only be able to contact you or provide Communications to you (if required) or otherwise provide the Service to you, if you keep your Contact Details up to date. You therefore agree that you will be solely responsible for keeping your Contact Details up to date. You also agree that Melbourne IT will have no liability to you whatsoever if Melbourne IT is unable to contact you or provide Communications to you or otherwise provide the Service to you as a consequence of your Contact Details not being up to date or for whatever reason (including, for example, because you do not respond to our contact in a timely manner).
This agreement is in addition to the applicable Registration Agreement Nothing in this agreement will result in you not needing to continue to comply with the terms of the Registration Agreement, including, the Uniform Dispute Resolution Policy, at all times, or, in Melbourne IT or you not being entitled to exercise any rights under the Registration Agreement with respect to the Relevant Domain Name.
You must not engage in any Prohibited Conduct with respect to the Service. If you engage in any Prohibited Conduct, or if Melbourne IT receives a request from any enforcement agency with respect to your use of the Service, Melbourne IT may disclose any information pertaining to you or the Relevant Domain Name (including, without limitation, if applicable, any payment information), to any enforcement agency, without any liability to you.
7.1 If you manage the Relevant Domain Name (as opposed to its appointment of a Melbourne IT accredited reseller to manage a Relevant Domain Name), payment clauses
7.2-7.6 of this agreement apply to you. If you have appointed a Melbourne IT accredited reseller to manage the Relevant Domain Name, the charges payable for the Service relating to that Relevant Domain Name, and the payment terms for the Service, will be as agreed by you and the Melbourne IT accredited reseller.
7.2 The charges for the Service are as published on the Melbourne IT Web Site from time to time.
7.3 Prices and charges published on the Melbourne IT Web Site are inclusive of any government taxes or charges unless otherwise stated.
7.4 The Service will be automatically renewed with respect to the Relevant Domain Name unless you provide Melbourne IT with 30 days’ prior written notice prior to the expiration date. You agree to pay the costs of such renewal in accordance with clause 7.2.
7.5 You consent to Melbourne IT or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Melbourne IT of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
7.6 You agree that in the event of any action being taken by Melbourne IT to recover any overdue amount due to it under this agreement or the Proposal, as evidenced for example by, without limitation, your credit card company notifying Melbourne IT of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by Melbourne IT in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Melbourne IT) are payable by you to Melbourne IT and shall be recoverable by Melbourne IT as a separate debt.
You warrant that:
8.1 you have not entered into this agreement or obtained the Service on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by Melbourne IT concerning this agreement or the Service, other than any statement or representation contained in this agreement; and
8.2 you are at least 18 years of age; and
8.3 your use of the Service will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary or legal rights of Melbourne IT or any third party; and
8.4 you will otherwise at all times use the Service in accordance with this agreement.
9.1 To the extent permitted by law, no Relevant Party makes any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Service or any equipment provided, and all such warranties are hereby excluded.
9.2 Melbourne IT agrees to use all reasonable efforts to provide the Service to you. However, you acknowledge to, and agree with, Melbourne IT, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party:
9.2.1 that the Service will be uninterrupted, error free or not subject to delays (technical or otherwise);
9.2.2 that the Service will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Melbourne IT;
9.2.3 that all Communications or any important correspondence, which may include legal notices or Uniform Dispute Resolution Policy notices or correspondence or telephone messages will be provided to you, whether because Melbourne IT determines that such Communication or correspondence is Junk Mail, because the postal service or telephony service fails to deliver such Communication, correspondence or telephone message to you, or otherwise;
9.2.4 that all Communications will be stored or remain stored;
9.2.5 that any Contact Details updated by you will be processed by Melbourne IT immediately;
9.2.6 as to the accuracy, reliability, completeness or content of the Service (including, the Melbourne IT Web Site and any systems through which the Service is provided), any information services or merchandise contained in or provided through the Service, or, for the avoidance of doubt, any information provided by Melbourne IT in any advice, report or communication to you or any other party, or
9.2.7 that the Service will not be the subject of an IP Claim. You also waive any Loss and Damage, and, each Relevant Party specifically disclaims any Loss and Damage, that may result from any of the events described above.
You will indemnify and defend each Relevant Party from and against any and all Loss and Damage incurred by any Relevant Party arising out of, or directly or indirectly relating to:
10.1 any breach of this agreement by you; and/or
10.2 the use of the Service and the Relevant Domain Name by you or any agent of yours; and/or
10.3 any action taken by Melbourne IT in connection with a Prohibited Activity (as contemplated by clause 6).
11.1 You agree that Melbourne IT shall not be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if Melbourne IT has been advised of the possibility of such damages.
11.2 Subject to clause 11.1, you further agree that the aggregate liability of Melbourne IT for any Loss and Damage whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such Loss and Damage.
11.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Melbourne IT for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.
11.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Melbourne IT shall be limited to the greatest extent permitted by applicable law.
12.1 You acknowledge that all right, title and interest in any and all:
12.1.1 technology, including the software;
12.1.2 any documentation and material that is part of or provided with the Service; and
12.1.3 any know-how, trademarks or service marks of Melbourne IT, (collectively, “Our Intellectual Property”) is vested in Melbourne IT and/or the licensors of Melbourne IT (as the context requires).
12.2 You have no right, title, claims or interest in or to Our Intellectual Property.
12.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Service, or grant any other person or entity the right to do so.
Melbourne IT will not be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service.
14.1 Melbourne IT may from time to time without notice to you suspend the Service:
14.1.1 if you engage in any Prohibited Conduct;
14.1.2 if you breach any provision of an applicable Registration Agreement;
14.1.3 if you fail to comply with any other provision in this agreement (including failure to pay charges due), until the breach (if capable of remedy) is remedied to the satisfaction of Melbourne IT;
14.1.4 if you do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service;
14.1.5 if Melbourne IT considers suspension will be necessary or desirable to comply with the requirements or directions, request or demand of any Regulator or Registry, any applicable law, regulation or rule, subpoena, court order or enforcement agency request;
14.1.6 If Melbourne IT or any Relevant Party become aware of an IP Claim;
14.1.7 If Melbourne IT considers (acting reasonably) that the provision of the Service is (or could) expose Melbourne IT or any Relevant Party to any liability;
14.1.8 during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Service as soon as reasonably practicable. If Melbourne IT suspends the Service, Melbourne IT may elect to populate the WHOIS with the Contact Details from the date of suspension throughout the period of suspension. You will also remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
14.2 Melbourne IT you may terminate this agreement and cease providing the Service to you at any time on 30 days’ written notice to you. You may terminate this agreement and cease obtaining the Service from us on 30 days’ written notice to us.
14.3 In addition to clause 14.2, Melbourne IT may terminate agreement and cease providing the Service to you at any time on written notice to you if Melbourne IT has at any time suspended the Service under clause 14.1.1-14.1.7.
14.4 On termination of this Agreement or if you terminate the Service, as contemplated by clauses 3.4 or 7.4 (if applicable):
14.4.1 subject to clause 7, you must pay any outstanding charges to Melbourne IT immediately;
14.4.2 you will not be entitled to a refund in connection with any unused portion of the Service;
14.4.3 Melbourne IT will populate the WHOIS with the Contact Details from the date of termination; and
14.4.4 Melbourne IT may delete all data, including Communications from any storage media without any liability to you whatsoever.
15.1 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.
15.2 In the event it is necessary for Melbourne IT to enforce its rights under this agreement, you agree to pay all fees incurred by Melbourne IT (including, but not limited to, legal fees and collection agency fees).
15.3 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
15.4 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.
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