Web.Associates Terms and Conditions of Business
This Web.Associates Terms and Conditions of Business together with the Domain Name Registration Buy Order Proposal and the Web.Associates Hosting Terms and Conditions governs the contractual relationship between Web.Associates and the Client under which the Client has agreed to place an order with Web.Associates for the Designated Registrant to become the registrant of the Domain Name(s) and upon which Web.Associates has agreed to use its best endeavours to procure that registration and host websites on the Domain Name(s). The registration and any renewal of the Domain Name(s) shall be also governed by the provisions of this Agreement and any Applicable Domain Name Rules and Applicable Laws.
1. Definitions and Interpretation
1.1. Definitions
In this document, any word starting with a capital letter that is not otherwise defined in this document, shall have the meaning given to it in the Domain Name Registration Buy Order Proposal. In addition, in this document the following words have the following meanings:
Agreement means these Terms and Conditions of Business together with the Domain Name Registration Buy Order Proposal and the Web.Associates Hosting Terms and Conditions.
Applicable Domain Name Rules means any rules and policies applicable to the registration, eligibility for registration and/or use of the Domain Name(s), including all applicable terms and conditions, standards, policies, procedures, and practices set in place by ICANN, any applicable registrar and/or registry operator. A list of registry operators and links to the policy documents of those registry operators is set out at Appendix A hereto.
Applicable Laws means any applicable laws and regulations including the Corporations Act 2001 (Cth) and the Australian Consumer Law.
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in Western Australia.
Business Hours means 9:00am – 5:00pm on Business Days.
Commencement Date means as set out in the Domain Name Registration Buy Order Proposal.
Confidential Information means as defined in clause 10.
Domain Acquisition Fees means as set out in the Domain Name Registration Buy Order Proposal.
Domain Name Renewal Fees means as set out in the Domain Name Registration Buy Order Proposal.
Domain Name Registration Buy Order Proposal means the document issued by Web.Associates to the Client entitled “Domain Name Registration Buy Order Proposal”.
Domain Name Services means as set out in the Domain Name Registration Buy Order Proposal.
Domain Name(s) means as set out in the Domain Name Registration Buy Order Proposal.
Domain Name Use Requirements means as set out in the Domain Name Registration Buy Order Proposal.
End Date means as set out in the Domain Name Registration Buy Order Proposal.
Fees means as set out in the Domain Name Registration Buy Order Proposal.
Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God, or other circumstances beyond the reasonable control of Web.Associates.
GST has the meaning given by the A New Tax System (Goods and Domain Name Services Tax) Act 1999 (Cth)).
Initial Term means the Commencement Date to the End Date.
Insolvency Event means: (a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency; (b) where the party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is unable to pay its debts as and when they fall due.
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Payment Terms means as set out in the Domain Name Registration Buy Order Proposal.
Personnel or personnel, in the case of Web.Associates, means all employees, agents and subcontractors of Web.Associates and including: (a) Web.Associates’ directors, employees and agents; (b) Web.Associates’ sub-contractors; and (c) Web.Associates’ sub-contractors’ directors, employees and agents.
Renewal Term has the meaning given in clause 5.2 of this document.
Term means the Initial Term and any Renewal Terms.
Terms and Conditions of Business means this document.
Web.Associates Hosting Terms and Conditions means the terms and conditions published online at https://webassociates.com.au/hostingtermsandconditions
1.2 Interpretation
In this Agreement:
(a) Headings and underlinings are for convenience only and do not affect the construction of this Agreement.
(b) A provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(c) Currency refers to Australian dollars unless expressly provided otherwise.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a party in this Agreement is a reference to Web.Associates or the Client (as the context dictates) and a reference to the “parties” is a reference to both Web.Associates and the Client.
(f) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of this Agreement.
(g) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(h) A reference to a party is to a party to this Agreement unless specified otherwise.
(i) The recitals are correct and form part of this Agreement.
(j) A reference to time is to time in Western Australia.
(a) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(b) The words “includes”, “including” and similar expressions are not words of limitation.
2. Engagement of Web.Associates to provide Domain Name Services
2.1. The Client engages Web.Associates as an independent contractor, and subject to receipt of payment by Web.Associates of the Domain Acquisition Fees strictly in accordance with the Payment Terms Web.Associates accepts the engagement, to use its best endeavours to procure the registration of the Domain Name(s) in the name of the Designated Registrant.
2.2. If Web.Associates is unable to facilitate the registration of the Domain Name(s) in the name of the Designated Registrant by the Commencement Date:
(a) either party may terminate this Agreement; and
(b) the Client’s sole remedy, and Web.Associates’ sole liability, shall be to refund any Domain Acquisition Fees paid to Web.Associates by the Client (if any).
2.3. The Client agrees and acknowledges that the registration of the Domain Names in the name of the Designated Registrant does not give the Client or the Designated Registrant actual or beneficial ownership of the Domain Names and gives the Designated Registrant only a limited licence to be the registrant of the Domain Names for the Initial Term subject to the provisions of this Agreement and any Applicable Domain Name Rules and Applicable Laws.
2.4. The engagement of Web.Associates under this Agreement is non-exclusive. Web.Associates may at any time provide any Domain Name Services and any other services to any third party in Web.Associates’ absolute discretion.
3. Compliance with Applicable Domain Name Rules and Applicable Laws
3.1. The Client must at all relevant times comply with, and procure that the Designated Registrant complies with, and continues at all relevant times to comply with, all Applicable Domain Name Rules and Applicable Laws as applicable to the registration, eligibility for registration, use and renewal of the Domain Name(s).
3.2. The Client must ensure prior to entering into this Agreement that the Designated Registrant is eligible to be the registrant of the Domain Name(s).
3.3. The Client agrees and acknowledges that Web.Associates does not make any representation or guarantee that the Designated Registrant is eligible to be the registrant of the Domain Name(s).
3.4. The Client shall not be entitled to bring any claim against Web.Associates directly or indirectly related to any failure of the Designated Registrant to satisfy any Applicable Domain Name Rules and/or Applicable Laws, including any applicable domain name eligibility criteria.
3.5. Web.Associates may freeze, delete, suspend, deny, cancel, modify, take ownership of or transfer any Domain Name, in order to comply with any Applicable Domain Name Rules and/or Applicable Laws, including any applicable dispute policies or recognised dispute processes or law enforcement requests. Web.Associates shall not be liable for loss or damages that may result from any such action and the Client hereby irrevocably releases Web.Associates from all such liability.
4. Web.Associates Domain Name Use Requirements
4.1. The Client must procure that the Designated Registrant complies with the Domain Name Use Requirements at all times during the Initial Term and any Renewal Terms.
4.2. The Client agrees that clause 4.1 is a material term of this Agreement and that if at any time the Designated Registrant fails to comply with the Domain Name Use Requirements, Web.Associates shall be entitled to at any time:
(a) procure the deregistration of the Designated Registrant as the registrant of the Domain Name(s);
(b) procure the transfer of the registration of the Domain Name(s) to Web.Associates or any third party determined by Web.Associates; and/or
(c) terminate this Agreement.
5. Domain Name Renewals
5.1. The registration procured by Web.Associates under clause 2.1 shall be for the duration of the Initial Term.
5.2. Subject to payment by the Client to Web.Associates of the Domain Name Renewal Fees strictly in accordance with the Payment Terms, upon expiry of the Initial Term, Web.Associates shall use its best endeavours to renew the registration of the Domain Names in the name of the Designated Registrant for subsequent consecutive 12 month periods (each a Renewal Term), until and unless: either party notifies the other party in writing of its intent not to renew this Agreement at least 90 days prior to the expiry of the Initial Term or then current Renewal Term (as applicable), in which case if such notice is provided Web.Associates shall be entitled to at any time upon expiry of the Initial Term or then current Renewal Term (as applicable):
(a) procure the deregistration of the Designated Registrant as the registrant of the Domain Name(s);
(b) procure the transfer of the registration of the Domain Name(s) to Web.Associates or any third party determined by Web.Associates; and/or
(c) terminate this Agreement.
5.3. If Web.Associates fails to facilitate the renewal of the registration of the Domain Name(s) in the name of the Designated Registrant in accordance with clause 5.2 with respect to any applicable Renewal Term (Failed Renewal):
(a) either party may terminate this Agreement; and
(b) the Client’s sole remedy, and Web.Associates’ sole liability, shall be to refund any Domain Name Renewal Fees paid to Web.Associates by the Client (if any) for that Failed Renewal.
6. Indemnification for claims by Designated Registrant
6.1. The Client must indemnify Web.Associates for any claims, losses, proceedings, allegations, complaints and other legal action brought by or in the name of the Designated Registrant against Web.Associates and/or Web.Associates’ personnel associated with the registration or deregistration of the Domain Name(s) and/or the performance or non-performance of this Agreement.
7. Fee
7.1. The Client must pay Web.Associates the Fees in accordance with the Payment Terms.
7.2. The Fees are exclusive of all taxes, duties and customs including GST and the Client agrees to pay Web.Associates all taxes, duties and customs, including GST, in respect of any Supply (as that term is defined in the A New Tax System (Goods and Domain Name Services Tax) Act 1999 (Cth)) made by Web.Associates under this Agreement. The Client must pay all such taxes, duties and customs, including GST, at the same time as the Fees .
8. Ownership of Intellectual Property
8.1. As between the Client and Web.Associates, Web.Associates owns all Intellectual Property Rights in any documents, materials and records (including software) developed by Web.Associates or any of Web.Associates’ personnel in the course of performing the Domain Name Services for the Client as each part comes into existence. The Client may only use those documents, materials and records (including software) as permitted in writing by Web.Associates.
9. Liability
9.1. Neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
9.2. For any loss that is not otherwise excluded by this Agreement, Web.Associates is only liable for loss directly incurred by the Client as a result of one or more breaches by Web.Associates of its obligations under this Agreement. However, Web.Associates’ liability for all such loss is capped, in the aggregate, at an amount equivalent to the value of the Fees paid by the Client under this Agreement, and which cap is reduced to the extent the Client or any Force Majeure Event caused or was responsible for such loss.
9.3. All conditions, warranties and guarantees implied in this Agreement are excluded, to the extent possible by law.
9.4. If the goods or services supplied by Web.Associates to the Client are supplied to the Client as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended the Client will have the benefit of certain non-excludable rights and remedies in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, Web.Associates limits its liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Web.Associates to the Client, in respect of each of the goods and services, at the option of Web.Associates, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
10. Confidentiality
10.1. The Client agrees and acknowledges that it may receive information from Web.Associates during the Term of this Agreement that is marked as confidential or is deemed confidential information of Web.Associates by law (“Confidential Information”)
10.2. The Client agrees and acknowledges that the Confidential Information of Web.Associates will be received and held by the Client and the Client’s personnel in strict confidence and will not be disclosed by the Client and/or the Client’s personnel, except:
(a) with the prior written consent of Web.Associates;
(b) where disclosed to the personnel or professional advisors of the Client on a strictly confidential basis;
(c) as required by the rules of any stock exchange; or
(d) as required by law or a court of competent jurisdiction, and then, only to the extent required, and provided that the Client promptly notifies Web.Associates of such requirements of disclosure as soon as such requirements becomes known to the Client and the Client provides full particulars to Web.Associates of those requirements and the disclosure.
10.3. Confidential Information does not include any information:
(a) that is independently developed, obtained or known by the Client, without any obligation of confidence to Web.Associates; or
(b) that is in the public domain, except where due to a breach of this Agreement or any breach of any obligation of confidence.
11. Termination
11.1. Either party may terminate this Agreement if the other party (the “defaulting party”) is in material breach of this Agreement and the breach is not capable of remedy, or where the breach is capable of remedy and the defaulting party fails to remedy the breach within thirty (30) days of notice.
11.2. Web.Associates may terminate this Agreement at any time by written notice to the Client.
11.3. Either party may terminate this Agreement by notice to the other party if the other party suffers an Insolvency Event.
11.4. Termination does not affect any accrued rights of either party.
12. Notices
12.1. A notice under this Agreement shall be sent by hand delivery, post or email, using the address specified in the Domain Name Registration Buy Order Proposal or the email address for the recipient’s representative specified in the Domain Name Registration Buy Order Proposal.
12.2. Any notice issued by hand shall be deemed delivered upon delivery.
12.3. Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
12.4. Any notice issued via email shall be deemed to be delivered upon the email being sent, provided that if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.
13. Dispute Resolution
13.1. If a dispute arises between the parties out of or relating to this Agreement (Dispute), any party to the Dispute must seek to resolve it strictly in accordance with the provisions of this clause. Compliance with the provisions of this clause is a condition precedent to seeking relief in any court in respect of the Dispute, except as otherwise provided in this clause.
13.2. A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party (Notification). Upon receipt of a Notification, each party must refer resolution of the Dispute to their chief executives (or nominees).
13.3. If the Dispute has not been resolved within one (1) calendar month of the Notification, then each party will be entitled to pursue such course of action as it determines.
13.4. Nothing in this clause shall limit either party’s right to seek urgent interlocutory relief from any court of competent jurisdiction at any time.
14. General
14.1. Amendment: This Agreement may only be amended by a written document signed by the parties.
14.2. Assignment: Neither party may assign, transfer, license or novate its rights or obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing provisions, Web.Associates may assign or novate its rights or obligations under this Agreement at any time without the Client’s consent to: (a) any third party to which Web.Associates has assigned or otherwise disposed its business or all or substantially all of its assets; or (b) any successor corporation resulting from any merger or consolidation of Web.Associates; or (c) any wholly owned subsidiary of Web.Associates.
14.3. Severability: If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain enforceable.
14.4. Relationship: The parties are independent contractors and this Agreement does not create any relationship of partnership, joint venture, or employer and employee or otherwise.
14.5. Australian Consumer Law: The exclusions and limitations of liability set out in this Agreement shall apply to the fullest extent permissible at law, but the parties do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, Web.Associates does not exclude liability under the Australian Consumer Law which is prohibited from being excluded. The parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement constitute an allocation of risks that form part of the negotiated commercial terms of this Agreement.
14.6. Counterparts: This Agreement may be executed in counterparts provided that no binding agreement shall be reached until the executed counterparts are exchanged.
14.7. Entire Agreement: This Agreement constitutes the entire agreement between the parties and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.
14.8. Jurisdiction: This Agreement will be interpreted in accordance with the laws in force in Western Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts situated in Western Australia.