Domain Registration Agreement
This Domain Registration Agreement between Above.com Pty Ltd. (hereinafter referred to as "Above.com") AND you (hereinafter referred to as "Registrant"), of the Domain Name that you have registered or transferred to Above.com. (Above.com and the Registrant may be referred to individually as a "Party" and collectively as the "Parties").
WHEREAS Above.com provides various Products and Services;
AND WHEREAS the Registrant wishes to purchase Above.com Products and Services
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Above.com and the Registrant, intending to be legally bound, hereby agree as follows:
"Above.com" has meaning as per Section 1.
"Agreement" refers to this Domain Registration Agreement along with all its appendices, extensions and amendments at any given point in time.
"Customer" refers the Registrant of Domain Name Services registered with Above.com
"Domain Name" refers to a unique website address registered with Above.com.
"Product and Services" refers to the Above.com Products or Services which it has offered/provided/sold, or is offering/providing/selling.
"Registrant" refers to any Customer that has used Above.com to register a Domain Name.
4. OBLIGATIONS OF REGISTRANT
The Customer shall comply with all terms or conditions established by Above.com and/or its Service Providers from time to time.
The Registrant agrees to provide, maintain and update, current, complete and accurate information for all the data elements about the Registrant in the Above.com Database.
The Registrant acknowledges that all information of the Registrant in the Above.com Database, including authentication information is accessible to Above.com and its Third Party Service Providers.
The Above.com Registrar Service relies on many Service Providers, including but not limited to: Verisign, Neustar, PIR, Afilias, Nominet and others. We can not accept liability for any cases of website functions, data skews and/or quality levels, or any other website issues that are due to third party faults.
We also warrant that Above.com will not violate any third party contractual obligations in relation to service providers.
6. RIGHTS OF ABOVE.COM AND SERVICE PROVIDERS
Above.com may change any information, including Authentication Information of the Registrant upon receiving authorization from the Registrant in any form as maybe prescribed by Above.com from time to time.
Above.com may provide/send any information, about the Customer, including Authentication information to (i) the Customer Contact Details, (ii) any authorised representative, agent, employee of the Customer upon receiving authorization in any form as maybe prescribed by Above.com from time to time and (iii) to the Service Providers.
Above.com in its own discretion can at any point of time temporarily or permanently cease to sell Products and Services.
Above.com reserves the right to change pricing, minimum order levels, and discounts of any Above.com Products and Services, at any time.
Above.com in its sole discretion, without notice, expressly reserve the right to modify, upgrade, cancel, suspend the Above.com Products and Services offered/provided/sold on the Above.com Website.
7. PRICING / FEES / RENEWALS / REFUNDS / TRANSFERS
Above.com will charge a non-refundable fee for Domain Registration Services unless stated otherwise. The applicable fees will be displayed on the Above.com website and during the Ordering Process.
Above.com reserves the right to make pricing change displayed on our website without notice. Existing customers will be given at least 30 days notice prior to any pricing changes taking effect.
During the 30 days notice period, existing customers have the ability and right to cancel or unsubscribe Services before the new pricing is set.
Above.com offers an optional automatic renew billing service, where ongoing Domain Name Registration Services are provided in exchange for yearly fees. You have the ability to unsubscribe or cancel Registrar Services provided at anytime. Cancellations need to be made at least 2 day before the current subscription expiry date to avoid renewal charges.
Above.com agrees to refund within thirty (30) days from receipt of a refund request from Customer, of any positive balances, prepaid and unused, less direct Bank fees associated with making such refund payments. Refunds will be made in the same manner as payments were received by Customer and if possible in the same currency. Above.com will not be responsible for any differences in the reimbursement amount due to Fluctuation in International Currency rates. Above.com uses spot rates as set by the Banking institution used at the time. Above.com will credit all payments received to the Customers Account after deducting all bank charges, processing charges and any other finance charges incurred in the process of receiving payment from Customer.
In the event that the Customer charges back a payment made via Credit Card or the payment instrument sent by the Customer bounces due to Lack of Funds or any other Reason, then Above.com (i) may immediately suspend customers access to their account, (ii) has the right to terminate this agreement with immediate effect and without any notice, or (iii) may if a replacement payment has not been received within fourteen 14 days, in its ABSOLUTE and UNFETTERED SOLE DISCRETION may delete, suspend, deny, cancel, modify, take ownership of or transfer any or all of the Orders placed by the Customer, as well as stop / suspend / delete / transfer any Orders currently being processed.
Registrant acknowledges that it is the Customer's responsibility to keep records and maintain reminders regarding the expiry of any Domain Name. As a convenience to the Customer, and not as a binding commitment, we may notify the Customer of any expiring Domain Names, via an email message sent to the contact information associated within the Customer account management section of the Above.com website. These emails are sent weekly for all domains expiring within 60 days. Should renewal fees go unpaid for a Domain Name, the Domain Name will expire. Information on how to renew a domain can be found in the FAQ section.
Registrant acknowledges that after expiration of the term of a Domain Name, Registrant has no rights on such Domain Name, or any information associated with such Domain Name and that ownership of such Domain Name now passes on to Above.com. Above.com may make any modifications to said Domain Name or any information associated with said Domain Name. Above.com may choose to monetize such Domain Names in any fashion at their sole discretion. Above.com may choose to delete said Domain Name at anytime after expiry upon their sole discretion. Above.com may choose to transfer the ownership of the Domain Name to any third party in their sole discretion. Registrant acknowledges that Above.com shall not liable to Registrant or any third party for any action performed under this clause.
Above.com at its sole discretion may allow the renewal of the Domain Name after expiry, and such renewal term will start as on the date of expiry of the Domain Name, unless otherwise specified. Such process may be charged separately. Such renewal after the expiry of the Domain Name may not result in exact reinstatement of the Domain Name in the same form as it was prior to expiry.
Above.com makes no guarantees about the number of days, after deletion of an Domain Name, after which the same Domain Name will once again become available for purchase.
8. ABOVE.COM WHOIS DOMAIN PRIVACY SERVICE
General & Pricing
Above.com's WHOIS Privacy Service ("Privacy Service") is a service privided at no cost to Above.com Registrar clients. Above.com reserves the right to make pricing change for this service without notice. Existing customers will be given at least 30 days notice prior to any pricing changes taking effect. During the 30 days notice period, existing customers have the ability and right to cancel or unsubscribe Services before the new pricing is set.
A list of TLDs supporting our privacy service and domain pricing can be obtained here: http://domains.above.com/domain-pricing.html. Above.com's Privacy Service consists of the display of alternate contact information in the public WHOIS database for the applicable domain name registration and provides for certain types of communication to be forwarded by us to you, the domain registrant. When you subscribe to the Privacy Service, you authorize Above.com Pty Ltd, to display alternate contact information in the public WHOIS database for the applicable domain name registration.
You remain in full and complete control of your domain name and retain the right to sell, transfer, convey, or assign your domain name registration, control the use of your domain name registration, and renew, cancel, or terminate your domain name registration. You also remain fully responsible for your domain name and remain liable under any disputes arising from your use of your domain name or your domain name registration. The purpose of the Privacy Service is to shield your personal information from the general public to prevent unwanted or unsolicited communications and other inquiries. The purpose of the Privacy Service is NOT to assist you in avoiding responsibility should your domain name registration infringe any third party's legal rights or in engaging or seeking to engage in any act or activities that are prohibited by law or this Agreement.
WHOIS Record Information
The following information will be provided in the WHOIS database for each domain name registration subject to the Privacy Service, and you hereby agree that such information be provided:
- The name and postal address in the registrant, administrative contact, billing contact, and technical contact will be that of Above.com Pty Ltd;
- The e-mail address, telephone number, and facsimile number in each of the administrative contact, billing contact, and technical contact will be that of Above.com Pty Ltd; and
By subscribing to the Privacy Service, you authorize and direct Above.com Pty Ltd to process communications directed to you at the contact information displayed in the public WHOIS database as follows:
- E-Mail Address. Messages received at the e-mail address posted in the public WHOIS database will be forwarded to the domain contact email address provided in your Above.com Domain Registrar account. This forwarding address is not filtered in any way, so we suggest a level of spam email filtering at the destination email address.
- Postal Address. You hereby authorize Above.com Pty Ltd to receive, sort, open, and destroy any and all mail sent to the address posted in the public WHOIS database at its sole discretion. Above.com Pty Ltd may in its sole discretion destroy all third class and "junk" mail upon receipt and will either discard all such other communications received or return the same to the sender unopened. No postal mail will be forwarded to you.
- Phone/Fax. The telephone and fax numbers posted in the public WHOIS database of the applicable domain name are answered and monitored by Above.com Pty Ltd. Third parties attempting to contact you using either of these means are informed that the domain name owner does not wish to receive communication in this manner and prefers e-mail. No messages or faxes will be forwarded to you.
You acknowledge and agree that Above.com may decline to offer the Privacy Service on certain TLDs in order to comply with regulations specific to that TLD. You further agree that Above.com may terminate an existing Privacy Service subscription if it, in its sole discretion, determines that termination is necessary in order to comply with regulations specific to a TLD.
You hereby waive any and all claims arising from your failure to receive any type of communications — whether by e-mail or postal mail — directed to the domain name contact information posted in the public WHOIS database, but not forwarded to you by Above.com Pty Ltd. You hereby acknowledge that it is your sole obligation to respond to any and all legal inquiries or challenges made with respect to any of your domain names that utilize the Privacy Services. You hereby agree that Above.com Pty Ltd is not responsible for any loss or liability resulting from, any claim arising out of, or related to, a domain name that utilizes the Privacy Service by or before any judicial, administrative, or governmental body.
Domain name registrants using Above.com Privacy can be contacted via the WHOIS contact email address. All disputes, domain sales inquires and any other communications directed to the domain registrant should be sent via email. Postal mail, facsimiles and telephone calls are not forwarded to the domain registrant. Any emails sent to the WHOIS Privacy Service email address, eg. <domain>@privacy.above.com will be forwarded to the domain contact email as provided to us. WHOIS lookups can be performed at this link: http://domains.above.com/whois.html
Our disputes policy and additional information can be obtained at this link: http://domains.above.com/domain-dispute-policy.html
Disclosure of Contact Data; Right to Terminate the Privacy Service
You acknowledge and agree that Above.com Pty Ltd has the absolute right, as it deems necessary in its sole discretion, to reveal to third parties, including to any UDRP or other official dispute arbitration provider, the Contact Data provided by you to Above.com Pty Ltd in connection with the applicable domain name and to suspend, cancel or terminate the Privacy Service if we reasonably perceive that:
- The domain name violates or infringes a third party's trademark, trade name, or other legal rights or that you are utilizing the domain name to engage in activities prohibited by this Agreement;
- The action is necessary to comply with any applicable laws, government rules or requirements, ICANN policies or requirements, including UDRP and official dispute arbitration providers, subpoenas, court orders, requests of law enforcement or government agencies; or
- Any third party threatens legal action against Above.com Pty Ltd, or any of their affiliates that is related in any way to the domain name, or who claims that you are using the domain name registration in a manner that violates any law, rule or regulation, including the terms of this Agreement, or is otherwise infringing a third party's legal rights.
In accordance with your obligations to indemnify Above.com Pty Ltd, you hereby agree to release, indemnify, defend, and hold harmless Above.com Pty Ltd, from any and all claims, actions, proceedings or demands and all liabilities, claims, damages, losses, costs and expenses, including reasonable attorneys' fees and expenses, of third parties, relating to or arising out of your domain name registration or your use of the Privacy Services, including without limitation (i) infringement of or dilution by you, or someone else using our Privacy Services from your computer or on your behalf, of any intellectual property or other proprietary right of any person or entity; (ii) your failure to perform any of your obligations to us or others relating to the Privacy Services; or (iii) a violation of the terms of this Agreement or of policies and procedures incorporated herein. If we are threatened with lawsuit or are sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide such assurances may be considered by us to be a material breach of this Agreement providing us any and all remedies provided herein, including without limitation suspension or termination of your account with us and confiscation of your domain names
Termination for Cause. This Agreement may be terminated by one of the parties for cause immediately by providing notice upon the occurrence of any of the following events; (i) If the other ceases to do business, or otherwise terminates its business operations; or (ii) If the other shall fail to promptly secure or renew any license registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within thirty (30) days; or (iii) If the other breaches any material provision of this Agreement and fails to fully cure such breach within thirty (30) days (ten (10) days in the case of failure to pay) of written notice describing the breach; or (iv.) If the other becomes insolvent or seeks protection under any bankruptcy receivership trust deed, creditor's arrangement composition or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within thirty (30) days.
Termination for Convenience. You may terminate and cancel your service at any time with the discontinued use of this website.
10. DOMAIN NAME DISPUTES
Domain Name Disputes will be subject to the Above.com Domain Dispute Policy as published on the Above.com website: http://domains.above.com/domain-dispute-policy.html
11. NAMING AND REGISTRATION RESTRICTION POLICIES
Above clients are encouraged to check in advance the various Naming Policies and Registration Restriction Policies as set by each respective domain registry before registering a domain name.
Additionally, ICANN has provided a Registrant Educational Information webpage which summarizes Registrant Rights and Responsibilities under the Registrar Accreditation Agreement (RAA) between ICANN and Above.com Pty Ltd: http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm
ADDITIONAL TERMS AND RESTRICTIONS FOR .DIET, .HIPHOP AND .JUEGOS
- For the .DIET, .HIPHOP and .JUEGOS domains, the Registered Name Holder will abide by all applicable laws regarding privacy, data collection, consumer protection (including in relation to misleading and deceptive conduct), fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.
- For the .DIET, .HIPHOP and .JUEGOS domains, the Registered Name Holder further agrees that if it collects or maintains sensitive health and financial data that it will implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law.
12. GENERAL PROVISIONS
Governing Law - This Agreement shall be governed by Australian Law and the State of Victoria shall have exclusive jurisdiction in connection herewith. Above.com will comply with all applicable laws under this jurisdiction.
Severability - If a court of law or other tribunal of competent jurisdiction finds any provision of this Agreement invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement as expressed herein.
Inconsistent terms - The parties agree that the terms and conditions of this Agreement shall prevail over any contrary or additional terms in any purchase order (unless agreed to in writing by both parties), sales acknowledgment, confirmation or any other document issued by either party.
Changes and Modifications - Above.com reserves the right to make technical, interface and service changes without notice. Recourse available to you in cases of any modifications is to cancel the relevant service Agreement. Continued use of the Service following changes and modifications will constitute your binding acceptance.
Service Levels and Access - We will use our best endeavors to make our website available at all times, but cannot guarantee it will operate without interruptions or be error free. We can not accept liability for any cases of its unavailability.
Access to the website is free to all. Access to password protected sections of the website is limited and can be accessed with a valid Above.com user account.
Automated solutions, including tools, software applications and online systems used to access Above.com user accounts can only be used with permission. Please contact us to obtain permission.
We reserve the right to (i) refuse the provision of Registrar Services to any user, (ii) cancel user accounts and (iii) cancel, change and modify Registrar Services offered to users.
Limitation of Liability - UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
If for any reason we are held liable, Above.com liability is limited to the amount paid by the Registrant for applicable products and services concerned.
Release and Indemnification - Above.com customers releases and forever discharges Above.com and any related entities from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Above services. Confidentiality - Each party will treat all information received or gained from the other party in confidence. Only by way of mutual agreement between the parties can information about any aspect of the agreements, pricing, relationships, products, services, plans or details of the other party's business be divulged to a third party. Information shall not be deemed confidential for the purposes of this Agreement that (i) is already known to the non-disclosing party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act of the non-disclosing party, including by public announcement by the disclosing party; (iii) is received from a third party without similar restrictions and without breach of this Agreement; (iv) is independently developed by the non-disclosing party; or (v) is lawfully required to be disclosed by any governmental agency or otherwise required to be disclosed by law.
Above.com customers that register any domain extention that is governed by Verisign Inc. including but not limited to .com & .net, also agrees to release, indemnify, defend and hold harmless Verisign Inc., and its directors, officers, employees, agents, and affiliates from and against any and all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or relating to the Registered Name holder's domain name registration.
Notices - Notices shall be in the form an email, system message alerts or as a post on the Above.com forum/blog.
By opening an Above.com account you agree to receive emails from Above.com and related entities. You have the ability to unsubscribe at anytime.
Taxes - The Registrant shall be responsible for sales tax, consumption tax, transfer duty, custom duty, octroi duty, excise duty, income tax, and all other taxes and duties, whether international, national, state or local, however designated, which are levied or imposed or may be levied or imposed, with respect to this Agreement and Above.com Products and Services.
Force Majeure - Neither party shall be liable for the failure to perform any of its obligations under this Agreement, except for payment obligations, if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including without limitation, fire, flood, strikes and other industrial disturbances, failure of raw materials suppliers, failure of transport, accidents, riots, insurrections, acts of God or orders of governmental agencies.
Right to Substitute Updated Agreement - During the period of this Agreement, the Registrant agrees that Above.com may (i) revise the terms and conditions of this Agreement; and (ii) change the services provided under this Agreement. Any such revision or change will be binding and effective immediately on posting of the revision in the Above.com website. The Customer agrees to review the Above.com website, including the agreements, periodically, to be aware of any such revisions. If the Customer does not agree with any revision, the Customer may terminate this Agreement according to Section 8 of this Agreement. The Customer agrees that, continuing use of the services under this Agreement following notice of any revision, will constitute as an acceptance of any such revisions or changes.
Registrant - Registrant Transfer - Above.com may transfer the Domain Name of the Registrant to another Person, Organization or any other Legal entity under the following circumstances: (i) Authorization from the Registrant and/or their Agent or Authorized Representative in a manner prescribed by Above.com from time to time; or (ii) on receiving orders from a competent Court, Law Enforcement Agency, or recognized Regulatory body.
Disclaimer of Warranties - EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND PRODUCTS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Headings - The division of this Agreement into Sections, Subsections, Appendices, Extensions and other Subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement.