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21 Domain Names

This entire clause 21 relates to the Domain Name Product. For this clause, the following terms shall be defined as follows:

Registrant The current licensee of a domain name.
.auDA .au Domain Administration Limited ACN 079009340.
.auDA policy Any policy listed by auDA. http://www.auda.org.au/
Domain name license A license for the use of a particular domain name.
Domain name license terms The terms and conditions which apply to a domain license.
gTLD domain Global Top Level Domain. A domain that ends in .com, .net, .org, .info or .biz.
ICANN Internet Corporation for Assigned Names and Numbers.
Member A person who registers with us as a member and is provided with a member / client ID.
Published Policies The specifications and policies established and published by auDA from time to time at http://www.auda.org.au/
Registrar Entity responsible for the provision of domain name licenses.
Registrar of record Entity by which a specific domain name is licensed through.
Registration fee Current charge in respect of a domain name license.
Registration period The period that a domain name license lasts for.
Registry operator The entity which issues domain name licenses and maintains their respective records.
Renewal fee Current charge in respect of renewing a domain name license.
Registrant Transfer The transfer of a domain name license from one registrant/member to another. We refer to this as a transfer of ownership.
Registrar Transfer The transfer of a domain name license from one registrar to another.
Nominet Domain name administration body for .uk domain names (Nominet UK - Company Number 3213859).
DNC Domain Name Commission Limited.
NZRS New Zealand Domain Name Registry Limited.

21.1 Representations by us

We do not operate any part of the domain name systems, or grant licensing for domain names. Those actions are maintained by the relevant registry(s) who are independently run beyond our control

The domain name registrar's obligations include:

  • The arrangement of domain name licenses to be granted to you by the relevant registry operators, subject to their rules, license terms, policies and any other requirements as listed by them and their governing bodies
  • Carrying out limited functions on behalf of the registry operators
  • Serving as a registrar of record
  • Provision of online facilities for the management of domain names
  • Provision of other, related services

This document contains the terms and conditions that apply between you, us and the services provided by the registrar.

This document indicates the terms and conditions that are imposed by the relevant registry operators and the governing bodies to which they are associated.

For so long as the registrar remains are the registrar of record for a domain name there is a service agreement between them and its registrant on these terms and those imposed by the registry operators and their governing bodies.

21.1.1 Application of these Terms in respect of representations

You acknowledge and irrevocably agree that

  1. Any reliance you place on any representation(s) on other pages of the Site are subject to the terms and clarification specified in this Agreement;
  2. You can only expect Services in accordance with the terms of this Agreement, and
  3. In the event of any inconsistency between the representation(s) on other pages of the Site, and this Agreement, the terms of this Agreement shall prevail over the representations - and your expectations of the Service shall be limited to the representations in this Agreement.
  4. Ensure the product is appropriate and compatible for your needs and you supply a valid and accurate domain name.

21.1.2 Terms/Representations

Please see clause 21.17.

21.2 Refunds

21.2.1 Agreement

You expressly and irrevocably agree that:

  1. It is your responsibility to ensure that Services are utilized to their full potential;
  2. It is your responsibility to ensure the appropriateness and compatibility of Services that you are purchasing;
  3. You have ensured that Services that you are purchasing are appropriate and compatible to your needs prior to making the purchase;
  4. You have provided us with an accurate and complete domain name that cannot be changed at a later date, therefore you must ensure the spelling and grammar are accurate and appropriate for your needs;
  5. We cannot provide refunds or indemnify you for the cost of purchase for any domain name Service. It is sold at cost price from and cannot be a dysfunctional service;
  6. We may choose, on your request to downgrade an account however no refund will be applied;
  7. Deposit/Cheque order cancellations will result in a credit being applied to your account or result in a surcharge to be taken from the refunded amount offered;
  8. Direct Deposit overpayments will either be returned via full account credit or transaction reversal minus surcharge;
  9. We take no responsibility for any mistakes in application either on the advice of our staff or your sole decision; and
  10. You are liable for the costs we incur (including legal costs on a full indemnity basis) if you make any claim in connection with or arising from Services, and you have breached your agreement with clause 21.1 of these Terms in any way whatsoever at any time after indicating your agreement to these Terms.

21.2.2 Process of claiming refund

In order to claim a refund, you undertake to clearly request a refund (and provide reasons for the request) via email to us within 72 hours from the date that the Service was provisioned as defined by the invoice creation date, or within 72 hours of the dispute occurring. You understand that it is your responsibility to ensure that we have received your email within this timeframe. Generally, a response will be sent to you within a fortnight of us receiving your request, but we may convey a response earlier. You also understand that your eligibility for refund is subject to clause 21.1.1 of this Agreement.

21.3 Suspension & cancellation

You expressly and irrevocably agree that we reserve the right to suspend/cancel any/all Service if:

  • You have any outstanding invoice or account.
  • Your account is in dispute or dispute resolutions procedure, court order, judgement, findings or determination.
  • You fail to comply with any provision in this agreement or those referenced in this agreement.
  • There is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party's rights.
  • We deem your use of our services may jeopardize the operation of the service, us or our suppliers.
  • We deem any other reason as satisfactory to protect us, our staff and/or our suppliers.

Any suspension or cancellation is subject to clause 21.2.

If your account is cancelled under this agreement:

  • You must pay all outstanding charges to us immediately.
  • We may revoke/terminate any license issued to or by you in relations to the services as of the date of cancellation.
  • We may immediately delete all data held prior to cancellation.
  • We may perform any action without notice.

21.4 Registry requirements

Each registry operator has terms and conditions, policies and requirements covering the registration, renewal, dispute resolution, and transfer of domain name licenses.

Each registry operator may impose new or amended terms and conditions, policies or requirements that take effect immediately.

Some registry requirements are set out in this service agreement, others are cross-referenced. A registry operator may have or introduce new ones.

You are responsible for familiarizing yourself with all registry requirements, whether or not they are included or referenced in this service agreement.

You apply for, and accept, registration for any domain name subject to all applicable registry requirements from time to time.

You release us from any claim arising from registry requirements or anything we do under them.

We are unable us to enforce registry requirements against third parties.

21.5 Domain name application

In order to apply for a domain name license, you must:

  • Complete our application form in full.
  • Read and agree with our service agreement.
  • Submit the appropriate registration fee.
  • Satisfy any requirements pertaining to the domain name license being applied for, and any other requirements notified by us.

Submission of an application does not assure you of a domain name license, even if a preliminary check indicates domain availability.

Your application's success is fulfilled only if:

  • Full registration fee has been paid and all cheques honoured by your bank and confirmed by our accounts department.
  • Your application complies with the association requirements and policies of the applicable registry operator.
  • The applicable registry operator approves your application and permits the issue of domain name license.
  • We have notified you in writing of the final approval of your application.

You acknowledge that the registry operator reserves the right to reject registrations at any time. You may not assume the success of your application nor take any steps or outlay any further investment on the assumption that your application was successful. In any event, we shall not be responsible for any losses and damages that you may have suffered in reliance of your belief that your application would be successful.

21.6 Domain name licensing

The issue of a domain name license entitles you to status of licensee for the domain name. A domain name is not an item of property and has no 'owner'. It is classed as an entry on the database of the registry operator.

The terms application, registration, activation, transfer of (and so on) a domain name merely reflect the application, registration, activation, transfer of (and so on) a domain name license.

A domain name license is subject to its license terms. It may not be used in breach of those license terms, many of which are registry operator (and their relating bodies) requirements, beyond our control.

Ownership of all copyright and database rights is kept by the registry operator.

You should not rely on the continued provision of a domain name license as evidence of a grant or renewed grant of permission to the use of the same. It is your responsibility to ensure a domain name license is within bounds of registry operator (and their relating bodies) requirements. You hold full responsibility for the renewal of domain name licenses.

21.7 Domain name registration period

A domain name license has a fixed period once activated.

Some domain name licenses have a choice of periods, some are fixed. Our application form will indicate the periods available for application. The domain name license period (pending its approval) will be that applied for.

21.8 Registration renewal

You may renew your domain name license in accordance with these terms and those of the relevant registry operator.

You are solely responsible for renewing your domain name license. If you fail to do so prior to the end of previous license term your domain may become available for registration by third parties.

You release us from any potential claim arising from your failure to renew a domain name license.

We may elect to send notification of pending renewal as a courtesy, however:

  • You irrevocably agree that you will have no claim against us if we do not provide notification, or if notification does not reach you. It is your sole responsibility to ensure your electronic contact method is correct, active and fully functional.

We will make an effort to advise the registrant of the need to renew a domain name, preferably at least 30 days prior to expiry, by at least:

  • sending an email to the registrant's email address, and/or
  • sending a notice to the registrant's postal address as recorded in the WHOIS information for that domain name.

You are not obliged to renew your domain name license, nor pay any fees associated, unless you choose to do so.

If you choose to renew your domain name license you shall:

  • Agree to any fees required as directed.
  • Agree to the latest service agreement as well as any related policies or requirements listed by the relevant registry operator.
  • Indicate the period for renewal from the available renewal periods as specified by us.

A renewal is only successful if:

  • The renewal fee has been paid and honoured.
  • Your renewal complies with the services agreement, polices and requirements of us and the relevant registry operator.
  • The relevant registry operator approves the renewal request.
  • We have notified you in writing that your application for renewal has been approved.

The period of your renewed domain name license is taken to commence from the date of expiry of your previous license.

21.9 Registration transfer

You are able, at various times to process a change of your domain name license. These times are strictly limited to those mentioned within this document which includes the policies and requirements of the relevant domain registry(s).

21.10 Registrant transfer

A registrant transfer transfers ownership of a domain name license from one registrant to another. A registrant transfer consists of a transferor (old registrant) and a transferee (new registrant).

In order to successfully complete registrant transfer you must:

  • Provide to us a complete Domain Transfer of Ownership form, as available on our website. The information on this form must be correct, valid and satisfy the requirements set out by the related registry operator.
  • Ensure that the transferor pays any outstanding fees owing to us.
  • Pay any specified fee's relating to the process of a registrant change.
  • Supply satisfactory documentation identifying both the transferor and transferee.
  • Ensure that the Transferee, in accordance with the Domain Transfer of Ownership form acknowledges the entry of this service agreement, our policies, and any requirements/policies of the related registry operator.

The transferor releases us from any claims arising under or in relation to this agreement, their domain name license or its transfer as soon as the transfer is affected.

21.11 Registrar transfer in

You are able (subject to policy of the relevant registry operator) apply for the transfer of a domain name license from another domain registrar (company) to ours. A registrar transfer to us is treated as an application for registration in that all clauses in this document are equally applicable. By applying for registrar transfer you agree with this service agreement and any policies as listed by us or the relevant registry operator.

21.12 Registrar transfer out

As you are able to process a registrar transfer to us, you are also able to apply for a registrar transfer to another company. A transfer out is governed by the clauses of this document with reference to the specific section which pertains to the domain name which you are applying to transfer (.e.g. .com, .au, etc).

21.13 Privacy & WHOIS Service

When a domain name license is registered, certain information is collected for use on the WHOIS service. The WHOIS service allows internet users to query a domain name to find out the identity and contact details of the registrant. The public WHOIS service is a standard feature of domain name systems around the world and is subject to the relevant registry operator's policies and requirements.

For .au domain registrations please see auDA's WHOIS policy at http://www.auda.org.au/policies/current-policies/2110-06/

All Private Registration applications are subject to relevant policies and requirements of the Private Registry Authority and based on your agreement to such policy. By applying and making use of Services provided either directly or through a third party of Private Registry Authority, you understand and agree to all policies, both provided and referred by Private Registry Authority.

21.14 Domain name cancellation

If your domain name license is cancelled for any reason, under these terms or registry operator requirement; a third party may register the domain name instead of you and you release us from any claim arising from the cancellation.

21.15 Back Order Service

The Back Order service is supplied with the intention to monitor your back ordered domain name, and register the back ordered domain name on your behalf upon it becoming available through the respective registry. The domain will only become available if it is no longer registered - either because the previous registration has expired without renewal, or the domain name was deleted. All Back Order applications are subject to the full terms and conditions contained within this document.

Placing a Back Order does not in any way guarantee that the specified domain name will be registered to you at any time. We will make every effort to secure domain registration, subject to these terms (or the terms contained within this entire document). It is possible that the specified domain name will never become available for registration. This means that your Back Order may never be successful, no matter how long you retain the Back Order.

Upon application, the specified domain name will enter our Back Order system. Back Orders will be placed on a first come, first serve basis. Other clients of ours may place Back Orders for the same domain name. The first application will be treated with 100% priority. We may, or may not disclose that there is an existing Back Order for the specified domain name.

Cancellation - A Back Order can be cancelled at any time however no refund for funds paid, either in full or pro rata shall be given where the service supplied to you is functioning.

By placing a Back Order application you agree to:

  • Indemnify and refrain from holding us responsible or liable in any way whatsoever if we are unable to register your Back Order application and specified domain name; and
  • Abide by all terms, conditions, process and policies described within our full Service Agreement

Your Back Order is only valid for the period which commences from the date that your Back Order request is accepted by us and terminates on the expiration date of your Back Order service. It is entirely your responsibility to ensure the renewal of your Back Order service. Failing to renew your Back Order service prior to the expiration date may forego any priority for a domain name Back Order in the situation where several Back Order applications have been made for the same domain name.

21.16 Domain Pre-Registration

The Domain Pre-Registration service is available to register your intent to register a domain name. The domain will only become available once the TLD is available from TDA Webdesign. We do not guarantee registration of your domain name at any stage of the pre-registration. Once the TLD becomes available from TDA Webdesign you will be contacted via email regarding pricing and registration terms.

Once you domain is available for registration, registrations will be placed on a first come, first serve basis. Other clients of ours may place pre-registrations for the same domain name. The first application will be treated with 100% priority. We may, or may not disclose that there is an existing pre-registration for the specified domain name.

You understand other companies may have the same domain name on backorder in which case the domain may be taken. You understand we will try and get this domain name but there is no guarantee the domain will be available.

You understand we cannot guarantee if and when your domain will become available. Once the TLD becomes available in the future we will notify you via email.

Upon pre-registering a domain name you agree to compfy with all of the associated registry rules and conditions once your domain is purchased.

Cancellation - A pre-registration can be cancelled at any time. Pre-registration is a free service so no refunds will be issued.

21.17 Releases and indemnities

This clause is in addition to any other release or indemnity that you give us under this agreement and any of the relevant registry operators' policies and agreements.

You indemnify us against any dispute between you and any third party with respect to any service offered by us.

You must indemnify, defend and hold us harmless in relation to all disputes on any domain name, its registrar, registry operator (e.g. AusRegistry for .au domains, Verisign Inc for .com domains)

You must indemnify, defend and hold all of our directors, officers, employees, agents and affiliates from and against any/all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or relation to the provision and use of our services

Each indemnity and release given to us or any other party under this agreement survives the termination or expiration of any service agreement.

21.17.1 Limitation on liabilities

This agreement does not exclude some laws. Such laws may provide rights and remedies that cannot be changed or excluded by this agreement;

  • We exclude all implied conditions and warranties, except any implied conditions and warranties, except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this Agreement to be void ("Non-excludable Condition").
  • The liability of us to you for breach of any express provision of this Agreement or any Non-excludable Condition is limited, at the option of us, to refunding the price of the services in respect of which the breach occurred or to providing those services again (except for services of a kind ordinarily acquired for personal domestic or household use or consumption, in respect of which the liability of us is not limited under this Agreement).
  • We are not liable for any failure to perform, or delay in performing, its obligations under this Agreement due to anything beyond its reasonable control. If that failure or delay exceeds 48 hours, you may terminate this Agreement with immediate effect by notice in writing to us.
  • You shall not hold us liable for any loss of privacy, provision of inaccurate information of advice, or damage to your computer systems or files, which may at any time result from your use of the Services. You understand that the email can be read in transit.
  • You accept sole legal responsibility for any messages, file, data or other form of communication which you may from time to time add to or transmit via the Services or receive in any manner whatsoever, and absolve us from any such legal responsibility in this regard.

You understand and agree that opinions, advice, services and all other information expressed on the Internet are those of the provider and not of us. We exercise no control whatsoever over the content of the information passing through the Services.

21.17.2 Registrant Authority

We may act on instructions or requests from a person who to us appears to be the registrant or person acting under authority of the registrant, without being under any obligation to do so having lodged notice of dispute as to the authority of that person.

You release use from any claim arising from action affected with relation to this clause.

21.18 General terms for domain names

21.18.1 Registry requirements

Each registry operator has terms and conditions, policies and requirements covering the registration, renewal, dispute resolution, and transfer of domain name licenses.

Each registry operator may impose new or amended terms and conditions, policies or requirements that take effect immediately.

Some registry requirements are set out in this service agreement, others are cross-referenced. A registry operator may have or introduce new ones.

You are responsible for familiarizing yourself with all registry requirements, whether or not they are included or referenced in this service agreement.

You apply for, and accept, registration for any domain name subject to all applicable registry requirements from time to time.

You release us from any claim arising from registry requirements or anything we do under them.

We are unable us to enforce registry requirements against third parties.

21.18.2 Domain name licensing

The issue of a domain name license entitles you to status of licensee for the domain name. A domain name is not an item of property and has no 'owner'. It is classed as an entry on the database of the registry operator.

The terms application, registration, activation, transfer of (and so on) a domain name merely reflect the application, registration, activation, transfer of (and so on) a domain name license.

A domain name license is subject to its license terms. It may not be used in breach of those license terms, many of which are registry operator (and their relating bodies) requirements, beyond our control.

Ownership of all copyright and database rights is kept by the registry operator.

You should not rely on the continued provision of a domain name license as evidence of a grant or renewed grant of permission to the use of the same. It is your responsibility to ensure a domain name license is within bounds of registry operator (and their relating bodies) requirements. You hold full responsibility for the renewal of domain name licenses.

21.18.3 Domain name application

In order to apply for a domain name license, you must:

  • Complete our application form in full.
  • Read and agree with our service agreement.
  • Submit the appropriate registration fee.
  • Satisfy any requirements pertaining to the domain name license being applied for, and any other requirements notified by us.

Submission of an application does not assure you of a domain name license, even if a preliminary check indicates domain availability.

Your application's success is fulfilled only if:

  • Full registration fee has been paid and all cheques honoured by your bank and confirmed by our accounts department.
  • Your application complies with the association requirements and policies of the applicable registry operator.
  • The applicable registry operator approves your application and permits the issue of domain name license.
  • We have notified you in writing of the final approval of your application.

You acknowledge that the registry operator reserves the right to reject registrations at any time. You may not assume the success of your application nor take any steps or outlay any further investment on the assumption that your application was successful. In any event, We shall not be responsible for any losses and damages that you may have suffered in reliance of your belief that your application would be successful.

21.18.4 Domain name registration period

A domain name license has a fixed period once activated.

Some domain name licenses have a choice of periods, some are fixed. Our application form will indicate the periods available for application. The domain name license period (pending its approval) will be that applied for.

21.18.5 Registration renewal

You may renew your domain name license in accordance with these terms and those of the relevant registry operator.

You are solely responsible for renewing your domain name license. If you fail to do so prior to the end of previous license term your domain may become available for registration by third parties.

You release us from any potential claim arising from your failure to renew a domain name license.

We may elect to send notification of pending renewal as a courtesy, however:

  • We are never obliged to do so.
  • You have no claim against us if we do not provide notification, or if notification does not reach you. It is your sole responsibility to ensure your electronic contact method is correct, active and fully functional.

You are not obliged to renew your domain name license, nor pay any fees associated, unless you choose to do so.

If you choose to renew your domain name license you shall:

  • Agree to any fees required as directed.
  • Agree to the latest service agreement as well as any related policies or requirements listed by the relevant registry operator.
  • Indicate the period for renewal from the available renewal periods as specified by us.

A renewal is only successful if:

  • The renewal fee has been paid and honoured.
  • Your renewal complies with the services agreement, polices and requirements of us and the relevant registry operator.
  • The relevant registry operator approves the renewal request.
  • We have notified you in writing that your application for renewal has been approved.

The period of your renewed domain name license is taken to commence from the date of expiry of your previous license.

21.18.6 Registration transfer

You are able, at various times to process a change of your domain name license. These times are strictly limited to those mentioned within this document which includes the policies and requirements of the relevant domain registry(s).

21.18.8 Registrant transfer

A registrant transfer transfers ownership of a domain name license from one registrant to another. A registrant transfer consists of a transferor (old registrant) and a transferee (new registrant).

In order to successfully complete registrant transfer you must:

  • Provide to us a complete Domain Transfer of Ownership form, as available on our website. The information on this form must be correct, valid and satisfy the requirements set out by the related registry operator.
  • Ensure that the transferor pays any outstanding fees owing to us.
  • Pay any specified fee's relating to the process of a registrant change.
  • Supply satisfactory documentation identifying both the transferor and transferee.
  • Ensure that the Transferee, in accordance with the Domain Transfer of Ownership form acknowledges the entry of this service agreement, our policies, and any requirements/policies of the related registry operator.

The transferor releases us from any claims arising under or in relation to this agreement, their domain name license or its transfer as soon as the transfer is affected.

21.18.9 Registrar transfer in

You are able (subject to policy of the relevant registry operator) apply for the transfer of a domain name license from another domain registrar (company) to ours. A registrar transfer to us is treated as an application for registration in that all clauses in this document are equally applicable. By applying for registrar transfer you agree with this service agreement and any policies as listed by us or the relevant registry operator.

21.18.10 Registrar transfer out

As you are able to process a registrar transfer to us, you are also able to apply for a registrar transfer to another company. A transfer out is governed by the clauses of this document with reference to the specific section which pertains to the domain name which you are applying to transfer (.e.g. .com, .au, etc).

21.18.11 Domain Redemption

Upon expiry of a domain name, the registrant is able to renew the domain within 30 days of expiry, stopping it from deleting any DNS records. In the event the domain name is not renewed within 30 days, the domain may be stored for a Redemption period by the domain name registry. A registry may store a domain name for a 30 day Redemption period. In order to recover a domain name during the Redemption period, registrants must apply to TDA Webdesign to have the domain name reinstated at least 7 days prior to the end of the Redemption period. Upon expiry of the Redemption period domain names enter a PENDINGDELETE phase for 5 days where they cannot be recovered by registrants or registrars. The domain name is then deleted and made available for re-registration. Application to renew a domain name during the Redemption period incurs a fee which is collected by TDA Webdesign on behalf of the registry. This fee includes the first year renewal of the domain name. Some registries do not have a Redemption period. To enquire whether a Redemption period applies contact TDA Webdesign.

For more information on the lifecycle of a domain name, see http://www.icann.org/en/resources/registrars/gtld-lifecycle

21.19 Search engine optimisation

You acknowledge that we do not have direct control over search engine placement. We use our best endeavours to maintain a high position for your web site, no ongoing guarantee of placement position is made or implied.

We guarantee a Google listing within 8 weeks of application to our SearchBooster product. This guarantee is dependent on:

  • The provision of valid, correct and up to date information
  • The satisfactory completion of the forms, steps and recommendations

We reserve the rights to deny refund should we deem unsatisfactory completion of the above.

21.20 Liability and indemnity

You expressly and irrevocably 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 or use of Services, 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.

TO THE MAXIMUM 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 OR REPRESENTATIONS 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.

You expressly and irrevocably agree that our total aggregate liability to you for any proven losses, damages and claims in connection with the provision or use of Services or this Agreement, including liability for breach of contract, negligence, tort, or any other common law or statutory action, shall be limited to the charges paid to us by you in respect of the Services which are the subject of any such claim. You agree to defend, indemnify and keep indemnified and hold us harmless from any:

  • loss of business, contracts, profits or anticipated savings;
  • other indirect or consequential or economic loss whatsoever;
  • loss of data or inability to retrieve data resulting from delays, software incompatibility, hardware or software issues, outages, failed deliveries, and any service interruption not caused by us;
  • injury to person or property allegedly caused by any products sold or otherwise distributed in connection with us;
  • negligence, misconduct, or breach of this agreement by you;
  • incomplete, inadequate or otherwise problematic use of any Services by you;
  • omission or failure by you to obtain appropriate advice, including legal advice, in respect of any Services or this Agreement prior to making a purchase;
  • incomplete, inadequate or lack of knowledge and experience necessary for use of any Services;
  • allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets due to the information you have provided us, and
  • damages including but not limited to indirect, special, incidental, consequential or exemplary damages allegedly arising out of, resulting from, incidental to, or in connection with this Agreement or Services.

You understand that should we be notified of pending legal action, we may seek written confirmation from you concerning your obligation to indemnify us under this Agreement in accordance with these terms, and you expressly and irrevocably agree that failure to provide such confirmation may be considered a further breach of this Agreement.

Where to do so is unlawful under any Act falling under the governing law of this Agreement, nothing contained in this Agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this Agreement and the Services and you. To the full extent permitted by law, where the benefit of a non-excludable condition, warranty or other obligation is conferred upon you pursuant to an Act falling under the governing law of this Agreement, 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 either the supplying of the service/product again or payment of the cost of having the service/product supplied again.

You expressly and irrevocably agree that this clause survives the expiry and/or termination of Services or this Agreement.

Should any part of these terms be made invalid by relevant legislation, that wording shall be deemed to be omitted and the remainder of the terms shall remain in force.

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