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 IntaServe
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 IntaServe 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.
This
is an agreement between you and IntaServe. IntaServe
regarding your use of IntaServe's computer, interactive
information, communication and server management service.
This Agreement governs the terms and conditions under
which IntaServe makes the services offered by IntaServe
available to individual consumers through a personal
computer or similar access, or to individual consumers
or small businesses in connection with the " IntaServe
" webhosting or similar services.
Under
this Agreement, you must comply with IntaServe's then
current "Acceptable Use Policy," as updated from time
to time by IntaServe, which can be viewed below.
1.
IntaServe will host an account for you, the purchaser
(hereafter referred to as the Account Holder), for the
Account Holder's chosen domain name, for the period
of time (the Term) corresponding with the payment plan
chosen by the Account Holder. This contract will be
automatically renewed at the end of the Term and each
successive renewal term, unless terminated. We require
notification of non-renewal by fax or postal mail, with
a minimum of 30 days notice prior to your renewal date.
Phone or e-mail notification is not acceptable. If you
do not provide this notice, your account will be renewed.
There are no refunds on a la carte services, dedicated
servers or server colocation.
2.
IntaServe's services are provided on an as is, as available
basis without warranties of any kind, either express
or implied, including, but not limited to, warranties
of merchantability, fitness for a particular purpose
or non-infringement. IntaServe expressly disclaims any
representation or warranty that the IntaServe services
will be error-free, secure or uninterrupted. No oral
advice or written information given by IntaServe, its
employees, licensors of the like, will create a warranty;
nor may you rely on any such information or advice.
The terms of this Section will survive any termination
of this Agreement.
3.
The Virtual Web Server Internet account and/or related
electronic services can only be used for legal purposes
under all applicable international, federal, provincial,
and municipal laws. Further, the Account Holder agrees
not to store, transmit, link to, advertise or make available
any images containing pornography.
Violations of these or any other provisions of
this Agreement may result in termination of the services
provided by IntaServe, with or without the grant of
a notice or cure period, such notice or cure period
to be granted at the sole discretion of IntaServe based
upon the severity of the violation. IntaServe reserves
the right to refuse service if any of the content within,
or any links from, the Account Holder's website is deemed
illegal, misleading, or obscene, or is otherwise in
breach of IntaServe's then current Acceptable Use Policy,
in the sole and absolute opinion of IntaServe. Notwithstanding
anything in this Agreement, the content of the Account
Holder's website is the sole responsibility of the Account
Holder. The Account Holder agrees to indemnify and hold
harmless IntaServe from any and all claims, losses,
damages, liabilities, judgments, or settlements, including
reasonable attorney's fees, costs, and other expenses
incurred by IntaServe, (collectively, Claims) related
to or in connection with the content of the Account
Holder's website. The terms of this Section will survive
any termination of this Agreement.
4.
IntaServe reserves the right to change, at any time,
the prices charged to the Account Holder for the services
provided by IntaServe
5.
The Account Holder agrees to follow generally accepted
rules of "Netiquette" when sending e-mail messages or
posting to newsgroups. Account Holder is responsible
for security of its password. IntaServe will not change
passwords to any account without proof of identification,
which is satisfactory to IntaServe, which may include
written authorization with signature. In the event of
any partnership break-up, divorce or other legal problems
that includes Account Holder, Account Holder understands
that IntaServe will remain neutral and may put the account
on hold until the situation has been resolved. Under
no circumstances will IntaServe be liable for any losses
incurred by Account Holder during this time of determination
of ownership, or otherwise. The Account Holder agrees
to indemnify and hold harmless IntaServe from any and
all Claims arising from such ownership disputes. The
terms of this Section will survive any termination of
this Agreement.
6.
The Account Holder agrees not to harm IntaServe, its
reputation, computer systems, programming and/or other
persons using IntaServe's services. IntaServe reserves
the right to select the server for Account Holder's
website for best performance. The Account Holder understands
that the services provided by IntaServe are provided
on a shared server. This means that one website cannot
be permitted to overwhelm the server with heavy CPU
usage, for example from the use of highly active CGI
scripts or chat scripts. If the Account Holder's website
overwhelms the server and causes complaints from other
users, the Account Holder has outgrown the realm of
shared servers, and will need to relocate it's website.
IntaServe will refund any unused portion of prepaid
services. If the Account Holder refuses to comply with
this Section, then IntaServe has the right to terminate
the services provided to the Account Holder without
any refunds of the unused portion prepaid by the Account
Holder. The Account Holder agrees to indemnify and hold
harmless IntaServe and any other Account Holder from
any and all Claims resulting from the Account Holder's
use of the services provided by IntaServe The terms
of this Section will survive any termination of this
Agreement.
7.
The Account Holder's rights and privileges under this
Agreement cannot be sold or transferred without the
prior written consent of IntaServe.
8.
If the Account Holder sells or resells advertising or
webspace to a third party then the Account Holder will
be responsible for the contents of that advertising
and the actions of that third party. IntaServe has the
absolute right to reject any advertising or other third
party content that is illegal, offensive or otherwise
in breach of the then current IntaServe Acceptable Use
Policy. The e-mail distribution by the Account Holder
of "SPAM", "JUNK MAIL", or "UNSOLICITED COMMERCIAL E-MAIL",
is expressly prohibited. If the Account Holder refuses
to remove any advertising or other third party content
deemed objectionable by IntaServe, IntaServe may terminate
the services being provided to the Account Holder.
9.
IntaServe will use its best efforts to maintain a full
time Internet presence for the Account Holder. The Account
Holder hereby acknowledges that the network may, at
various time intervals, be down due, but not restricted
to, utility interruption, equipment failure, natural
disaster, acts of God, or human error. In no event shall
IntaServe be liable to the Account Holder for any damages
resulting from or related to any failure or delay of
IntaServe in providing access to the Internet under
this Agreement. In no event shall IntaServe be liable
to the Account Holder for any indirect, special or consequential
damages or lost profits arising out of or related to
this Agreement or the performance or breach thereof.
The aggregate, total liability of IntaServe under this
Agreement, if any, shall in no event or circumstance
exceed the total amount actually paid by the Account
Holder hereunder. The terms of this Section will survive
any termination of this Agreement.
10.
This Agreement applies to all accounts, sub-accounts,
and alternative account names associated with your principal
account. The Account Holder is responsible for the use
of each account, whether used under any name or by any
person, and for ensuring full compliance with this Agreement
by all users of that account. A IntaServe account may
not be transferred without prior written approval from
IntaServe. The Account Holder is responsible for maintaining
the confidentiality of his/her password. In the event
of a breach of security through the Account Holder's
account, the Account Holder will be liable for any unauthorized
use of the IntaServe services, including any damages
resulting therefrom, until the Account Holder notifies
IntaServe's customer service.
11.
If IntaServe assigns the Account Holder an Internet
Protocol address in connection with the Account Holder's
use of the IntaServe services, the right to use that
Internet Protocol address will remain with and belong
only to IntaServe, and the Account Holder will have
no right to use that Internet Protocol address except
as allowed by IntaServe in its sole and absolute discretion.
12.
This Agreement constitutes the entire agreement between
the Account Holder and IntaServe with respect to the
IntaServe services and supersedes all prior agreements
between the Account Holder and IntaServe. IntaServe's
failure to enforce any provision of this Agreement shall
not be construed as a waiver of any provision or right.
In the event that a portion of this Agreement is held
unenforceable, the unenforceable portion will be construed
in accordance with applicable law as nearly as possible
to reflect the original intentions of the parties, and
the remainder of the provisions will remain in full
force and effect. The terms of this Section will survive
any termination of this Agreement.
13.
The parties shall attempt to resolve all disputes arising
out of this Agreement in a spirit of cooperation and
with a problem-solving mindset, without formal proceedings.
Any dispute, which cannot be so resolved, shall be subject
to binding arbitration upon the written demand of either
party. Should any legal action permissible under this
Agreement be instituted to enforce the terms and conditions
of this Agreement, in particular the right to collect
money due on unpaid invoices, the prevailing party shall
be entitled to recover reasonable solicitors, attorney's,
and or legal fees and expenses incurred at both the
trial and appellate levels. The terms of this Section
will survive any termination of this Agreement.
14.
The Account Holder agrees to indemnify and hold IntaServe
harmless from any and all Claims resulting from or connected
with any activities conducted by the Account Holder.
The Account Holder and IntaServe will promptly notify
the other upon receipt of any Claim or legal action
arising out of activities conducted pursuant to this
Agreement. The rights and responsibilities established
in this paragraph will survive any termination of this
Agreement.
15.
Notices required by this Agreement shall be in writing
and shall be delivered either by personal delivery or
by mail. If delivered by mail, notices shall be sent
by any express mail service; or by certified or registered
mail, return receipt requested; with all postage and
charges prepaid. All notices and other written communications
under this Agreement shall be addressed to the individuals
in the capacities indicated below, or as specified by
subsequent written notice delivered by the party whose
address has changed.
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 IntaServe Pty Ltd and "Services" refers
to the domain name registration provided by us as offered
through IntaServePty 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@IntaServe.com
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
IntaServe 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.
IntaServe's
Internet Acceptable Use Policy
Intaserve
and its affiliates provide to business and consumer
users several information technology related services,
including such service as various electronic mail (email)
packages and services, World Wide Web hosting arrangements,
and other online and Internet-related services. It is
contrary to IntaServe policy for any user of any of
these services to effect or participate in any of the
following activities through a IntaServe-provided service:
- To
post messages substantially similar in content to
ten (10) or more Usenet or other newsgroups, forums,
listservs or other similar groups or lists (each a
"List");
-
To intentionally post to any List articles which are
off-topic according to the charter or other owner-published
FAQ or description of the group or list;
-
To send Unsolicited E-mail to more than twenty-five
(25) e-mail users, if such Unsolicited E-mail could
reasonably be expected to provoke complaints. Except
as otherwise defined under applicable law, "Unsolicited
E-mail" does not include any message addressed to
an individual (i) with whom the sender has a preexisting
and ongoing business or personal relationship, (ii)
from a non-commercial organization or entity of which
the individual is a pre-existing member or (iii) a
posting to a List that does not otherwise violate
this Policy;
-
To falsify user information provided to IntaServe
or to other users of the service in connection with
use of a IntaServe service;
-
To engage in any of the foregoing activities by using
the service of another provider, but channeling such
activities through a IntaServe account, remailer,
or otherwise through a IntaServe service or using
an IntaServe account as a maildrop for responses or
otherwise using the services of another provider for
the purpose of facilitating the foregoing activities
if such use of another party's service could reasonably
be expected to adversely affect a IntaServe service;
-
To engage in any other activity which is either in
violation of law, threatens the integrity of any computer
system, or violates generally accepted standards of
Internet conduct and usage including but not limited
to denial of service attacks; web page defacement;
port and network scanning and unauthorized system
penetrations.
IntaServe
considers the above practices to constitute abuse of
our service and of the recipients of such unsolicited
mailings and/or postings, who often bear the expense.
Therefore, these practices are prohibited by IntaServe's
terms and conditions of service. Engaging in one or
more of these practices will result in termination or
suspension of the offender's account and/or access to
IntaServe services in accordance with the customer's
agreement with IntaServe. In addition, IntaServe reserves
the right, where feasible, to implement technical mechanisms
which block postings and messages as described above
before they are forwarded or otherwise sent to their
intended recipients.
This
policy addresses only the kinds of network abuse specifically
enumerated above. In addition to these activities, IntaServe's
terms and conditions of service also prohibit other
forms of abuse such as harassment and the posting of
illegal or unlawful materials, and IntaServe will respond
as appropriate to these other activities as well. Nothing
contained in this policy shall be construed to limit
IntaServe's actions or remedies in any way with respect
to any of the foregoing activities, and IntaServe reserves
the right to take any and all additional actions it
may deem appropriate with respect to such activities,
including without limitation taking action to recover
the costs and expenses of identifying offenders and
removing them from the IntaServe service, and levying
cancellation charges to cover IntaServe's costs in the
event of disconnection of dedicated access for the causes
outlined above. In addition, IntaServe reserves at all
times all rights and remedies available to it with respect
to such activities at law or in equity.
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
IntaServe or the nature of your relationship with
IntaServe;
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 a domain name after the 48
hour initial registration period will incur a $99.00
cancellation fee. There is no fee involved with the
cancellation of any other products or services.
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 seven (7 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 IntaServe 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
IntaServe.
Entire
Agreement, Governing Law
This
agreement shall be governed by the laws in force in
the state of New South Wales, Australia. Both parties
hereby submit to the exclusive jurisdiction of the Courts
of that State.
