1. Introduction
1.1 Drop.com.au Pty Ltd ACN 135 424 878 ("Drop") is a domain name registrar accredited by .au Domain Administration Limited ACN 079 009 340, the Australian Domain Name Administrator ("auDA") as well as a reseller of Domain Shield Pty Ltd ACN 153 994 506, DNTRADE.COM.AU PTY LTD ACN 152 545 518, NETFLEET.COM.AU PTY LIMITED ACN 134 314 373, HELP.COM.AU PTY LTD ACN 114 868 852, Fabulous.com.au Pty Ltd ACN 139 626 994, Above.au Pty Limited ACN 137 606 172, all auDA accredited domain name registrars (collectively and individually referred to as the "Registrar").
1.2 Drop provides:
(a) domain name registration and associated services as a reseller for the Registrar ("Registration Services");
(b) an auction platform for expiring and deleted .com.au and .net.au third level domain names ("Expiring and/or Deleted Domain Name") that become available for public registration ("Expiring and Deleted Domain Name Auction"); and
(c) a secondary market auction platform for currently registered domain names ("Secondary Market Auction"),
(together the Registration Services, the Expiring and Deleted Domain Name Auction and the Secondary Market Auction are referred to as the "Services").
1.3 In order to give you the best chance of successfully obtaining an ordered Expiring or Deleted Domain Name, Drop has, with the consent of auDA, entered into EPP sharing arrangements with the Registrar. "EPP" means the connection that the Registry Operator allows registrars to have to the Registry. For the definitions of Registry Operator and Registry see clause 1.6. Via the EPP, it is possible for the registrars involved in the EPP sharing arrangement to have access to the registrant information of domain names managed by other participating registrars. For this reason, agreements have been signed by the relevant parties to protect registrant privacy and whois integrity.
1.4 We reserve the right to amend this Customer Agreement at any time by notice to your email address noted in your Drop management account ("Account"). Your continued use of the Services will constitute acceptance of any amended Customer Agreement.
1.5 By using the Services, you acknowledge that you have read, understood, and agree to be bound by:
(a) this Customer Agreement;
(b) all policies published on www.drop.com.au ("Website");
(c) the terms and conditions of the Registrars' domain name registration agreements;
(d) the Expiring and Deleted Domain Names Auction Agreement (if applicable);
(e) all specifications and policies established and published by auDA from time to time at http://www.auda.org.au ("auDA Published Policies")
1.6 In this Customer Agreement, 'we', 'us', and 'our' refers to Drop and/or the Registrar and 'you' or 'customer' means anyone to whom we supply Services. "Registry" means the domain name registry which is operated for .au domains by the registry operator, which is currently AusRegistry ("Registry Operator").
2. auDA Published Policy
2.1 You must comply with all auDA Published Policies, as if they were incorporated into, and form part of, this Customer Agreement. In the event of any inconsistency between any auDA Published Policy and this Customer Agreement, then the auDA Published Policy will prevail to the extent of such inconsistency.
2.2 You acknowledge that under the auDA Published Policies:
(a) there are mandatory terms and conditions that apply to all domain name licenses and such terms and conditions are incorporated into, and form part of, this Customer Agreement; and
(b) you are bound by, and must submit to, the .au Dispute Resolution Policy; and
(c) auDA may delete or cancel the registration of a .au domain name.
3. Payment of Fees
3.1 The applicable fees for the Services are set out on our Website and are inclusive of GST (except where otherwise stated). The applicable fee must be paid in full and any identification or authorisation documents requested shall be provided to us at the time of applying for the Services.
3.2 We reserve the right not to provide you with any Services until all applicable fees have been paid, the funds cleared and any requested identification or authorisation documents have been received by us.
3.3 All payment of fees for the Services provided by us shall be made in Australian dollars.
3.4 You may save your credit card details within your Account. By doing so, you grant us the authority to charge your credit card for any invoices issued by us for Services requested by you. If you do not wish this to occur, you must log-in to your Account and change the preferred payment option from the default "Credit Card" setting to "Bank Transfer" via the client management system. You must repeat this process for each invoice. The setting to modify the "payment type" is available to change at the top of the invoice located at My Account> My Invoices.
4. Registration Service
4.1 Where we provide you with Registration Services, we are acting as a reseller for the Registrar. You must comply with the terms of the relevant Registrar's domain name registration agreement.
4.2 We do not guarantee that you will be able to register or renew a particular domain name, even if a preliminary search or inquiry indicates that the domain name is available.
4.3 We may in our sole and absolute discretion, accept or reject your application for the registration or renewal of a particular domain name.
4.4 We are not responsible or liable in any way for any errors, omissions or any other actions or inactions by the Registry arising out of or in connection with your application for registration or renewal of a particular domain name, or a failure to register or renew a particular domain name.
4.5 You acknowledge and agree that the registration or renewal of a particular domain name through the Services or the subsequent use of that domain name does not confer upon you any proprietary rights in that domain name, nor does it guarantee immunity from and against any challenge to the registration of the domain name by any third party, nor from the cancellation, suspension or transfer of that domain name.
5. Auctions
5.1 If you wish to utilise the Expiring and Deleted Domain Names Auction, you must agree to the terms and conditions of the Expiring and Deleted Domain Names Auction Agreement.
6. Agency
6.1 If the Services are used or accessed by your agent, you shall nonetheless be bound as a principal by all terms and conditions of this Customer Agreement.
6.2 You acknowledge that you remain the responsible contracting party under this Customer Agreement even if you licence a third party to use a domain name registered through the Services.
7. Your warranties
7.1 You warrant and covenant that:
(a) you are a legal entity with the power and authority to enter into this Customer Agreement;
(b) when using the Services, you will at all times comply with the law and auDA Published Policies;
(c) all information provided by you to use the Services (including all supporting documents, if any) is true, complete and correct, and is not misleading in any way;
(d) any domain names registered through the Services will not be used in any way to mislead or deceive minors into viewing sexually explicit material;
(e) any domain names registered through the Services will not be used to redirect internet traffic to any website that contains content (or links to such content) that:
(i) is hateful, defamatory, derogatory or bigoted based on racial, ethnic, political grounds or which otherwise causes injury, damage or harm of any kind to any person or entity;
(ii) is threatening or invades another person's privacy or property rights or otherwise is in breach of a duty owed to a third party;
(iii) depicts minors engaged in any activity of a sexual nature or which may otherwise harm minors;
(iv) infringes the registered trademark, copyright, patent rights, trade secret or other intellectual property rights of a third party;
(v) violates any applicable local, state, national or international law or regulation;
(vi) promotes, is involved in or assists in, the conduct of illegal activity of any kind or promotes business opportunities or investments which are not permitted under law;
(vii) advertises or offers for sale any goods or services that are unlawful or in breach of any national or international law or regulation;
(viii) advertises or offers for sale any goods or services that the advertiser does not have the legal right to sell; or
(ix) attempts to defraud members of the public in any way (for example, "phishing" sites),
collectively referred to as "Illegal Activities".
7.2 We do not condone the use of domain names for or in connection with any Illegal Activity and reserve the right to report such activities to the relevant legal enforcement agencies if we determine in our sole and absolute discretion that a domain name is being used in such manner.
8. Consent to use your information
8.1 Personal information we collect from you will be dealt with in accordance with our Privacy Policy.
8.2 You undertake to provide a copy of this clause and our Privacy Policy to any third party individuals whose personal information is to be supplied to us by you and obtain the consent of such third party before disclosing their personal information to us.
8.3 By using our Services, you agree to us collecting, using and disclosing your personal information, in accordance with our Privacy Policy.
9. auDA's Liabilities and Indemnity
9.1 To the fullest extent permitted by law, auDA will not be liable to you for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by you arising from, as a result of, or otherwise in connection with, any act or omission whatsoever of auDA, its employees, agents or contractors.
9.2 You agree to indemnify, keep indemnified and hold auDA, it employees, agents and contractors harmless from all and any claims or liabilities, arising from, as a result of, or otherwise in connection with, your registration or use of the registered domain name.
9.3 Nothing in this Agreement is intended to exclude the operation of the Trade Practices Act 1974 (Cth).
10. No Warranty or Guarantee
10.1 We are not responsible or liable in any way for any errors, omissions or any other actions or inactions by auDA or the Registry Operator arising out of or in connection with your application for registration or renewal of a particular domain name, or a failure to register or renew a particular domain name.
10.2 To the maximum extent permitted by law, we disclaim all warranties of any kind, whether express or implied, including without limitation any warranty of merchantability, correctness, accuracy, reliability, satisfactory quality, fitness for a particular purpose, non-infringement of third party rights nor that the Website nor the Services will be uninterrupted, secure or free of virus or error. To the extent that such warranties cannot be disclaimed, you agree that our liability shall be limited to the re-supply of the Services.
11. Limitation of Liability
11.1 Notwithstanding anything else contained in this Customer Agreement and to the fullest extent permitted by law, neither we nor the Registry Operator shall be liable to you for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by you arising from, as a result of, or otherwise in connection with any act or omission whatsoever of auDA, the Registry Operator, us, or their/our employees, agents or contractors.
12. Indemnity
12.1 You agree to indemnify, keep indemnified and forever hold harmless, us and our directors, officers, employees and agents, from and against any and all claims, actions, demands, liabilities, obligations, losses, damages, judgments, settlements, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with:
(a) your use of the Services or any other services that we may perform for you from time to time, including but not limited to your application to register or renew a particular domain name, or a failure to register or renew that domain name;
(b) your registration or use of any Registered Name, whether registered in your name or the name of your agent or nominee;
(c) your reliance on information provided on the Website including information in relation to expiring domain names.
13. Suspension, Cancellation, Transfer or Modification
13.1 We reserve the right to:
(a) refuse the provision of Services to any user;
(b) cancel user accounts; and
(c) cancel, change, transfer and modify Services offered to users.
14. Survival
14.1 Clauses 7, 8, 9, 10, 11, 12 and 14 shall survive the termination or expiration of this Customer Agreement.
15. Severability
15.1 The terms of this Customer Agreement are severable. If any term or provision is declared invalid or unenforceable, it shall be severed from this Customer Agreement and shall not affect the interpretation or operation of the remaining terms or provisions, which shall remain in full force and effect.
16. Entire Agreement
16.1 This Customer Agreement supersedes all prior agreements and understandings, whether established by custom, practice, policy, or precedent in relation to the subject matter of this Customer Agreement.
17. Governing Law
17.1 This Customer Agreement is governed in all respects by and construed in accordance with the laws of the State of Victoria, Australia, and you submit to the non-exclusive jurisdiction (without prejudice to other potentially applicable jurisdictions) of the Courts of Victoria.
18. Relationship
18.1 Nothing in this Customer Agreement shall be construed as creating the relationship of agency, partnership or joint venture between the parties.
19. Force Majeure
19.1 No party to this Customer Agreement will be in default or otherwise liable for any delay or failure in its performance under this Customer Agreement where such delay or failure arises by reason of an Act of God, any government or governmental body, acts of war, the elements, strikes or labor disputes, power or system failures, failure of the Internet, computer hacking, or other causes beyond the reasonable control of such party.
20. Waiver
20.1 Failure by us to exercise or enforce any right or provision of this Customer Agreement shall not be deemed to be a waiver of such right or provision and does not affect the right to require any provision to be performed at any time thereafter.
21. Notices
21.1 All notices required to be sent under this Customer Agreement shall be sent via e-mail:
(a) If to Drop, to [email protected];
(b) If to you, to the e-mail address listed on your Account at the relevant time.
21.2 Any notice sent shall be deemed to have been received at the time and date logged by the sender's email server of confirmation of delivery of the email message to the recipient's email server.
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