1. Introduction
These Terms of Service, together with the applicable general Top Level Domain (gTLD) and country code Top Level Domain (ccTLD) Policies constitutes the entire Domain Portfolio Management agreement between Sapo Blue Pty Ltd and domain name registrant (owner of the registration).
Prior to registration or renewal of a Domain Name, or any other domain management activities, including the transfer of any Domain Name to Sapo Blue Pty Ltd as the Registrar and/or Manager of record, Sapo Blue Pty Ltd requires you to have accepted these terms and the applicable gTLD and ccTLD Policies.
2. Definitions
Unless the context otherwise requires:
“Agreement” means the acceptance of these Domain Portfolio Management Terms & Conditions, either by a signed Managed Services Agreement, or by registering through, or transferring your domains to Sapo Blue Pty Ltd;
“Fees” means the charges payable as specified in the Managed Services Agreement and/or as listed on the Sapo Blue website;
“Service” means the service(s) referred to in the Managed Services Agreement and defined by the service inclusions as defined at Domain Portfolio Management, Managed Services and/or Managed Hosting that we have agreed to supply to you;
“we” or “us” or “Sapo Blue” means Sapo Blue Pty Ltd; and
“our” or “ours” means pertaining or belonging to “us”;
“you” means the Customer;
“your” or “yours” means pertaining or belonging to “you”;
“Domain Name” means any domain name registered through, or transferred to Sapo Blue Pty Ltd as the Registrar of record, and/or any domain name managed by Sapo Blue Pty Ltd;
“Domain Name Services” means any Domain Name registration, renewal, transfer and/or any other services associated with a Domain Name;
“DNS” or “Domain Name Server” means any RFC 1034 or RFC 1035 compliant DNS server;
“Drop Catch” means registering Domain Names for which previous registrations have expired or have been cancelled;
“Registrant” means an individual or organisation whose Domain Name is registered with or through Sapo Blue Pty Ltd.
“Restricted Domain Name” means a top-level domain (gTLD or ccTLD) whose registration is limited to people or entities that satisfy certain criteria.
“Name Holder of the Domain Name” means the Registrant of a Domain Name;
“Register” means the central listing of Domain Names managed and maintained by the relevant Registry;
“Registrar” means any company authorised to resell domain names by the relevant Registry;
“Initial Term” or “Contract Period” means the minimum term for which we will provide the Service to you as indicated in the Managed Services Agreement, if the minimum term is not specifically defined, a 12 Month term applies;
“Renewal Term” means any service term following the Initial Term, as specified below;
“Domain Expiry Date” means the date of the domain expiry as recorded by the Register or Registrar.
3. Supply of Services
3.1 By signing the Managed Services Agreement, or using Sapo Blue’s services, or by registering through, or transferring your domains to Sapo Blue Pty Ltd, you agree to take and pay for the Service during the Initial Term and for any Renewal Term.
3.2 And by signing the Managed Services Agreement, we agree to provide the Service during the Initial Term and for any Renewal Term.
4. Term
4.1 The Agreement will commence on the 1st day of the month following the date we set up your Service and, unless terminated pursuant to clause 15, continue on a month by month basis.
- 4.1.1 The Agreement will continue automatically for additional terms equal to one (1) month (“Renewal Term”), and for the relevant fees applicable to the Renewal Term, which may be different from the Fees during the Initial Term, unless you notify us in writing at least fourteen (14) days prior to the end of the Initial Term or a Renewal Term, that you have elected to terminate the Service, in which case the Service will terminate at the end of the Term.
- 4.1.2 Additions or changes to the Service, including monitoring services, drop-catching services, increased management services, and any term with related fees after the Initial Term, if any, shall initiate a new Initial Term applicable to the modified Service.
5. Payment
5.1 You must pay us the Fees within fourteen (14) days of our invoice, except where specified to the contrary in the Agreement. Each payment is non-refundable.
5.2 If you dispute any part of an invoice you must notify us within 7 days of its receipt and pay that part which is not in dispute.
5.3 We reserve the right to charge additional Fees where your supply of information, access or contribution necessary to provide the Service is delayed by you.
5.4 We reserve the right to suspend any or all of the Service if payment of the Fees within thirty (30) days of our invoice is not received.
5.5 We reserve the right to cancel the domain registration if payment of the Fees within sixty (60) days of our invoice is not received.
6. Taxes
6.1 You must pay and indemnify us against all taxes and duties payable in respect of this Agreement, any supply made under the Agreement and the Fees (excluding any income tax payable by us).
6.2 In this clause, “GST” means the tax imposed by The New Tax System (Goods and Services Tax) Act 1999 (Cth) and related imposition Acts of the Commonwealth.
6.3 If GST is imposed on any supply made by us under the Agreement, you must pay, in addition to any Fees (unless those fees already include GST), an additional amount equivalent to the GST payable.
6.4 We will provide you with a valid tax invoice for the amount of GST which we require you to pay to us.
7. Your Obligations
7.1 You agree that:
7.1.1 You have read and understand these Terms of Service and the relevant gTLD and ccTLD Policies, and agree to be bound by them.
7.1.2 You have and will satisfy yourself that the use (whether directly or indirectly) of the Domain Name will not infringe the legal rights (including, without limitation, the intellectual property rights) of any third party. You agree to protect each Relevant Party from any such claim.
7.1.3 You will make sure all information you give Sapo Blue Pty Ltd is accurate and complete, keep Sapo Blue Pty Ltd informed of changes to any information you give us, and that you have the authority to enter in to this agreement.
7.1.4 You will only use the Services for lawful purposes.
7.1.5 You will ensure that any Domain Name registered by you does not interfere with other users of the Internet.
7.1.6 You will comply with any orders of any authority having jurisdiction in relation to the Services.
7.1.7 You will not knowingly use the Service for any illegal or fraudulent activities including activities which breach the Telecommunications Act 1997 (Cth), the Copyright Act 1968 (Cth), the Australian Broadcasting Services Act 1992 (Cth) as amended 2000 (Cth), or other applicable laws, whether relating to crime, intellectual property, censorship, defamation or otherwise.
7.1.8 If the you elect to manage your own Domain Name Servers, all registered Domain Names must be hosted on at least two pre-configured domain name servers and you are responsible for at all times meeting this obligation.
7.1.9 You will keep the Registrant ID, and any passwords associated with the Domain Name, together with any other security provided to you in connection with the Domain Name (Password Information), confidential, safe and secure. Sapo Blue Pty Ltd is not responsible for the misuse of any Password Information whether by yourself, or, by any other person (including, without limitation, any employee or contractor of Sapo Blue Pty Ltd ).
7.2 You warrant that:
7.2.1 You are an identifiable individual over the age of 18, or a legally constituted organisation.
7.2.2 You meet the eligibility conditions relevant to the gTLD or ccTLD at all times, wether upon registration or renewal. You will inform us within 14 days if you no longer meet the eligibility conditions.
7.2.3 Any person or legal entity which uses the Domain Name complies with the obligations set out in Clause 7.1.
7.2.4 In respect of a Restricted Domain Name, you meet and will continue to meet for the duration of the Restricted Domain Name registration, the eligibility criteria contained in the Restriction Policies.
7.3 You acknowledge that:
7.3.1 Sapo Blue Pty Ltd must adhere to the relevant registry Policies and any instructions received from time to time from the relevant gTLD or ccTLD Register. Accordingly, you agree that Sapo Blue Pty Ltd is entitled to take all actions that may be reasonably necessary or prudent to comply with the relevant gTLD or ccTLD Policies or any such instructions received from time to time from the registries without incurring any liability to you or any person for whom you are responsible.
8. Our Obligations
8.1 When providing any Domain Portfolio Management Services, Sapo Blue Pty Ltd will:
8.2 Comply with all relevant gTLD and ccTLD Policies and accurately represent these Policies to you.
8.3 Disclose accurately and completely all the terms and conditions (including price and billing information) associated with the provision of the registration of a Domain Name to you, and the maintenance of the Domain Name sought to be used by you.
8.4 Comply with your lawful directions in a diligent and timely manner regarding the Domain Name (including, without limitation, relating to registration, cancellation, amendment, deletion and associated technical support and billing).
8.5 Process any Domain Name registrations with the Register within 5 business days from the time that Sapo Blue Pty Ltd receives all the information required to complete the registration.
8.6 Notify you of the registration of the Domain Name.
8.7 Arrange for correction of any error in the information in the register about the registered Domain Name when requested by you.
8.8 Use your personal information only as authorised by you and otherwise, in accordance with these Terms of Service.
8.9 Take all reasonable commercial steps to safeguard and protect all information about you stored in Sapo Blue Pty Ltd databases and systems.
8.10 Comply with any order or authority having jurisdiction regarding the Domain Name registered to you.
8.11 Use best endeavours to deal with any complaints you may have about the Domain Name Services.
9. Fees
9.1 You agree that:
9.1.1 You have appointed Sapo Blue Pty Ltd to manage your Domain Name Portfolio, and the fees payable for any Domain Name Service are as set out in the relevant ‘pricing’ pages of the Sapo Blue Pty Ltd website;
9.1.2 Sapo Blue Pty Ltd charges you a monthly fee for the Domain Name services provided as part of the Domain Portfolio Management service; you are liable to pay the monthly fee on an ongoing monthly basis. Sapo Blue automatically renews to Domain Name on or before the Domain Expiry Date as recorded in the Registry database. You agree to pay the monthly fees for the Domain Name until the Domain Expiry Date, unless the domain name is cancelled pursuant to Clause 11.
9.1.3 You will pay the fees for any Domain Name Service or any associated service to Sapo Blue Pty Ltd in accordance with the payment terms set out on the Sapo Blue Pty Ltd Website at the time the Domain Name and/or associated service application is submitted to Sapo Blue Pty Ltd, or, as otherwise specified on the Sapo Blue Pty Ltd Website or these Terms of Service;
9.1.4 Sapo Blue Pty Ltd may alter any fees set out in this clause 9 at any time on 30 days prior written notice; and the payment terms related to any Domain Name Service and/or Sapo Blue Pty Ltd Service including the following:
9.1.5 All monthly fees are payable in advance unless specified otherwise.
9.1.6 All fees are non-refundable.
9.1.7 Sapo Blue Pty Ltd has no obligation to record the registration of any Domain Name if Sapo Blue Pty Ltd has not received the applicable fees for that Domain Name.
9.1.8 Failure to pay the domain name renewal fee in respect of a Domain Name registration will result in cancellation of that domain name registration.
9.1.10 If you select to transfer the Domain Name to another entity or Registrar all charges owing to Sapo Blue Pty Ltd as at the date of the transfer, including any transfer fees as set out in clause 12, are immediately due for payment. Sapo Blue Pty Ltd is under no obligation to assist with the transfer of a domain name or any other service unless full payment for any outstanding service has been received by us.
10. Registration of a Domain Name
10.1 You agree that:
10.1.1 Registration of a Domain Name by Sapo Blue Pty Ltd is carried out on a “first come, first served” basis.
10.1.2 Registration of a Domain Name confers no property or ownership rights to that Domain Name.
10.1.3 Upon the registration of a Domain Name for you, your contact details, the Domain Name, its commencement and expiry date, the address and details of the nameservers for the Domain Name and Sapo Blue Pty Ltd name becomes publicly available to any member of the public.
10.1.4 The Domain Name is registered in your name only because no other person has it according to the records of the Register.
10.1.5 The entry of a domain name in the whois database will not be taken as evidence of anything other than the registration of the Domain Name.
10.1.6 Sapo Blue Pty Ltd will not become involved (whether directly or indirectly) in any dispute pertaining to the Domain Name and where a conflict arises between Name Holders or prospective Registrants about the Domain Name registration, those parties must resolve the issue independently of Sapo Blue Pty Ltd.
10.1.7 The details held in the Register shall be treated as correct and as the authoritative record.
10.1.8 Sapo Blue Pty Ltd does not accept any responsibility for the content of a Name Holder website and Sapo Blue Pty Ltd shall not be obliged to enforce the removal of content from a website unless it has been instructed by a Court Order to do so.
11. Cancellation of a Domain Name
11.1 You may cancel a Domain Name or any associated service at any time by notifying Sapo Blue Pty Ltd in writing.
11.2 You agree that:
11.2.1 On receipt of such notice, Sapo Blue Pty Ltd will cancel the relevant Domain Name and/or associated service; and Sapo Blue Pty Ltd will have no liability to you whatsoever in relation to such deletion and/or cancellation.
11.2.2 Sapo Blue Pty Ltd may, in its sole discretion and without prior notice, cancel a Domain Name and any additional services provided to you by Sapo Blue Pty Ltd in respect of that Domain Name where you fail to pay any fees that are due to Sapo Blue Pty Ltd, pursuant to clause 5.5.
11.2.3 Either party may terminate this agreement and cancel the Domain Name on one month written notice to the other party.
11.2.4 In case either party decides to cancel the Domain Name, Sapo Blue Pty Ltd may, in its sole discretion, opt to retain or drop catch the Domain Name for its own benefit.
12. Transfer of a Domain Name
12.1 You may transfer a Domain Name or any associated service to another entity or Registrar at any time by notifying Sapo Blue Pty Ltd in writing.
12.2 You agree that:
12.2.1 On receipt of such notice, Sapo Blue Pty Ltd will invoice you the Transfer Fee, as set out in Clause 12.2.2, for the relevant Domain Name and/or associated service; and Sapo Blue Pty Ltd will have no liability to you whatsoever until full payment for the Transfer Fee has been received by us.
12.2.2 The Domain Transfer Fee is calculated as follows:
- Remaining unpaid months until Domain Name Expiry Date * Domain Name Monthly Fee
12.2.3 Sapo Blue Pty Ltd will not unlock & release the domain name, provide domain authentication key/password, until the Domain Transfer Fee payment and any other outstanding fees have been received in full.
12.2.4 Sapo Blue Pty Ltd may, in its sole discretion and without prior notice, cancel a Domain Name and any additional services provided to you by Sapo Blue Pty Ltd in respect of that Domain Name where you fail to pay any fees that are due to Sapo Blue Pty Ltd, pursuant to clause 5.5.
13. Confidentiality, Security and Workplace Policies
13.1 Each of us agrees to keep the other’s information confidential and use it only for the purposes of the Agreement. A recipient shall use at least the same degree of care to protect and prevent unauthorized disclosure of any confidential information as it, he, or she would use to protect and prevent unauthorised disclosures of its, his or her own confidential information. This obligation will not apply to any information that a recipient already knew before disclosure or information that comes into the public domain (except by breach of confidentiality).
13.2 Except as may be required by law, none of the parties is authorised to disclose confidential information without the prior written consent of the other party.
13.3 Neither party shall be liable for disclosure of confidential information if made in response to a valid order of a court or authorised agency of government; provided, that ten (10) business days notice is first given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order and/or engage in other efforts to minimize the required disclosure. The receiving party shall cooperate the the disclosing party in seeking the protective order and engage in such other efforts as directed by the disclosing party at the latter’s expense.
13.4 Any previous Confidentiality Agreement between us which applies to information disclosed under this Agreement will prevail over this clause to the extent of any inconsistency. The obligations under this Paragraph shall apply during the Initial Term and for a period of five (5) years after the expiration of an Agreement.
14. Liability
14.1 The only terms implied into the Agreement are those which cannot be lawfully excluded. Where the Agreement involves the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at our option as the case may be, to any one or more of: the replacement, repair or payment of the cost of replacement or repair of the goods; and supplying the services again or payment of the cost of the services being supplied again.
14.2 Subject to clause 14.1 and otherwise to the maximum extent permitted by law, our liability to you for all loss or damage suffered or incurred by you in connection with the Agreement, or the Services (including all loss arising from any breach by us of the Agreement, our negligence or any breach of statute) is limited as follows:
14.2.1 we will not be liable to you for any indirect or consequential loss (including loss or corruption of data or loss of profit); and
14.2.2 we will be liable to you for other types of loss or damage but our entire liability to you for each claim will be limited to the Fees paid to us by you under the Agreement in the 12 months prior to the date the cause of the loss or damage occurred, less:
14.2.2.1 all GST paid in relation to those Fees; and
14.2.2.2 any fees which were paid more than 7 days past the due date stated on the invoice;
14.2.2.3 all amounts already paid or payable to you by us during that period for any other claims made by you relating to this Agreement.
14.3 You have not relied on any representations made by us which are not set out in the Agreement.
14.4 You indemnify us and our related bodies corporate and their officers and employees from and against all losses, damages, claims, actions, expenses and other liability arising from your performance, non-performance or breach of the Agreement or your use of the Service.
15. Termination
15.1 Either of us may terminate the Agreement:
15.1.1 on 30 days notice. If you terminate under this sub-clause you must pay us in full for those parts of the Fees that have not been paid for the Term except where we are in breach of this agreement.
15.1.2 immediately if the other is in material breach and does not remedy or commence to remedy the breach within 14 days written notice or if the other becomes or is in jeopardy of becoming subject to any form of insolvency administration (including receivership, administration or liquidation). Without prejudice to our other rights, you will immediately pay us all amounts due as of termination for those services or parts of the Fees that have been provided but are unpaid, with no obligation to pay for services or parts beyond the date of termination.
15.2 On any termination each party must return to the other party or destroy all our confidential information and certify in writing to that effect.
15.3 If the agreement is terminated for any of the above clauses except where We are in breach of this contract for any reason including for subclause 15.1.2, the fees outstanding for the remainder of the Initial Term or the Renewal Term, plus any Domain Name Transfer fees as per clause 12, must be paid to us in full without delay.
15.4 Please note that services are billed in whole months and that 30 days’ notice is required for service termination.
16. Force Majeure
16.1 Notwithstanding any other provision of this agreement, neither party will be liable for any failure to fulfil any term of the Agreement if such fulfilment is delayed, prevented, restricted or interfered with for any reason outside that party’s control, including without limitation any act of god, terrorism, inclement weather, failure or shortage of power supplies, floods, drought, lightening or fire strike, lock-out, trade dispute or labour disturbance, any act or omission of any governmental agency, highways or authorities.
16.2 The party unable to perform its obligations must:
16.2.1 notify the other party promptly of any delay; and
16.2.2 use its best efforts to resume performance in accordance with the Agreement as soon as possible.
16.3 If any event referred to in this clause 15 continues for more than 1 month, then the Agreement may be terminated forthwith by either party giving notice to the other party and you will have no obligation to pay for services or parts beyond the date of termination. Any pre-payment by you will be reimbursed by us.
17. Disputes
17.1 If a difference between the parties under or in connection with the Agreement cannot be resolved within 30 days, then the matter is defined as a ‘dispute’ for the purposes of the Agreement (Dispute).
17.2 If a Dispute arises between the parties, either party may deliver to the other party a notice of dispute in writing, which notice shall identify and provide reasonable details of the Dispute (Notice of Dispute).
17.3 Within 10 Business Days of the delivery of the Notice of Dispute, the representatives of both parties (signatories to the Agreement or their nominated proxies) must meet or hold discussions and use their reasonable endeavours, acting in good faith, to resolve the Dispute, or else to agree a process for the resolution of the Dispute, which may include but is not limited to mediation or expert determination (Dispute Meeting).
17.4 If the Dispute is not resolved, or a process for the resolution of the Dispute has not been agreed, within 10 Business Days of the date of the Dispute Meeting, either party may refer the dispute to mediation by the Australian Commercial Disputes Centre (ACDC) for resolution in accordance with its guideline for commercial dispute resolution.
17.5 Either party may, at its sole discretion, determine that the findings made in clause 13.4 are not satisfactory and may then proceed to legal action within sixty (60) days of the finding made in clause 13.4, by giving written notice of their intention to the other party.
17.6 The party that raised the Dispute may withdraw the Dispute at any time by giving written notice (Notice of Dispute Withdrawal).
17.7 If the parties resolve the Dispute, a countersigned declaration of the Dispute’s resolution must be delivered to each party (Notice of Dispute Resolution).
17.8 Subject to clause 10, notwithstanding any Dispute or difference, the parties must continue to perform their obligations under the Agreement.
18. Changes to these Terms and Conditions
18.1 We reserve the right to change the Terms, Conditions and Service Inclusions and Limitations pertinent to the Service from time to time, where these changes are substantive we will give you 14 days’ notice.
18.2 Substantive changes in Clause 18.1 refer to modifications that materially affect your rights, obligations, or the core nature of the service provided. Minor changes, such as typographic corrections or formatting adjustments, will not require prior notice.
18.3 If you do not agree to the revised Terms, Conditions or Service Inclusions and Limitations, you may terminate the Agreement pursuant to Clause 15.