This agreement ("Agreement") is between the Registrar, Education Services Australia Limited (ABN 18 007 342 421) ("ESA") and the Domain Name Licence Holder or Registrant ("the Licensee") for the licence of any domain name in the edu.au namespace and the edu.au child zones (the "Domain Name"). The parties agree to the following terms and conditions.
- This Agreement comprises these terms and conditions and any applicable Published Policies and constitutes the entire agreement between ESA and the Licensee for the registration of the Domain Name, and supersede all prior agreements, understandings, and representations. In this Agreement, "Published Policies" means those specifications and policies established and published by auDA from time to time at http://www.auda.org.au, and includes the Registrar Rules and the Licensing Rules.
- ESA may amend this Agreement either by obtaining the Licensee's consent or giving notice to the Licensee. This may occur, but is not limited to, where the change is required:
ESA may give notice of a change by posting the new version of the Agreement on its website for Registrar Services located at the URL https://www.domainname.edu.au (the "Registrar Website") and advising via e-mail to the last known e-mail address provided by the Licensee.
- by law;
- by a regulatory body (including auDA, a government department or education authority);
- to implement or enforce recommendations of the edu.au Advisory Committee;
- to protect the integrity, utility, sustainability or security of the .edu.au name space; or
- for technical reasons.
auDA and Registrar's Agency
- In this Agreement: auDA means .au Domain Administration Limited ACN 079 009 340, the .au domain names administrator;
- Registrar Rules means the document titled ".au Domain Administration Rules – Registrar" as ratified by auDA and amended from time to time; and
- Licensing Rules means the document titled ".au Domain Administration Rules – Licensing" released for public consultation on 21 April 2019 and ratified by auDA after that date (as amended from time to time).
- Solely to the extent that this Agreement purports to grant a right or benefit to auDA (who is not a contracting party to this Agreement), if that right or benefit is also granted to ESA, then ESA may (whether on behalf of auDA and/or in its own capacity) enforce the obligation corresponding to auDA's right, for auDA's benefit. For the purposes of such enforcement, the obligation corresponding to auDA's right or benefit is taken to be owed to auDA.
auDA Published Policies
- The Licensee must comply with all Published Policies, as if they were incorporated into, and form part of, this Agreement. In the event of any inconsistency between any Published Policy and these terms and conditions, then the Published Policy will prevail to the extent of such inconsistency.
- The Licensee acknowledges that under the Published Policies:
- there are mandatory terms and conditions that apply to all licences, and such terms and conditions are incorporated into, and form part of, this Agreement; and
- the Licensee is bound by, and must submit to, the .au Dispute Resolution Policy; and
- auDA may delete or cancel the registration of a .au licence.
- The Licensee agrees that they have read, understood, and are bound by all the terms and conditions of this Agreement, in respect of the registration, renewal and use of the Domain Name.
- The Licensee agrees that they will:
- at all times comply with this Agreement;
- ensure that Licensee's Domain Name application is in the form specified in the Published Policies and the procedures published at the Registrar Website;
- provide current, complete, and accurate information as required by the Domain Name registration process or ESA;
- maintain and update this information as needed to keep it current, complete and accurate for the duration of the licence period and this Agreement;
- immediately notify ESA of any change to Domain Name registration details used as the basis to meet the eligibility or allocation criteria prescribed in the Published Policies;
- immediately notify ESA if they cease to meet the eligibility or allocation criteria prescribed in the Published Policies;
- respond within fourteen days to enquiries from ESA concerning the accuracy of this information, the eligibility status of the Licensee or the Licensee's use of the Domain Name; and
- obtain the consent of individuals whose personal information is submitted to the Registry Operator as part of the Domain Name application.
- The Licensee must not, directly or indirectly, through registration or use of their Domain Name or otherwise:
- allow a third party (including a related body corporate) use of the Domain Name, or allocate sub-domains of the Domain Name for use by such third party;
- register a Domain Name for the purpose of diverting trade from another business or website, or registering as a Domain Name misspellings of or names deceptively similar to another entity's name, brand or trademark in order to trade on the reputation of another entity's goodwill;
- cause a person or body accessing the Domain Name to be automatically redirected to a website which is operated by or on behalf of a person or body which does not meet the eligibility criteria prescribed in the Published Policies for the edu.au namespace or the edu.au child zones;
- purport to be operating in a sector or offering educational qualifications or awards such as certificates, diplomas and degrees where the Licensee is not registered or accredited with the relevant government education or training authority in Australia to do so (or is not otherwise operating under third-party contract with such a registered or accredited entity to do so);
- register the Domain Name for the purposes of domain name monetisation, this includes:
- registering the Domain for the primary purpose of selling or transferring the Domain Name to another person;
- passively holding the Domain Name to prevent others from registering it; or
- targeting and registering as a Domain Name keywords to host affiliate links, pay-per-click advertising or service directories; or
- grant or purport to grant a security interest or other encumbrance in the Domain Name.
- The Licensee agrees that as required of ESA by auDA they grant:
- to auDA, the right to provide auDA with all information relating to the Licensee's Domain Names registered with ESA for public disclosure to third parties;
- to ESA, the right to provide the Registry Operator with all information which is reasonably required in order to register the Domain Name in the Registry; and
- to ESA, the right to provide the Registry Operator with all information relating to the Domain Name to enable the Registry Operator to maintain a public WHOIS service for public disclosure to third parties, provided that such disclosure is consistent with:
- the National Privacy Principles specified in the Privacy Act 1988 (Cth); and
- ii. the Published Policies.
- The Licensee acknowledges that all personal information about the Licensee which is supplied by ESA to auDA is held by auDA for the benefit of the Australian public.
- The Licensee agrees that ESA enters into this Agreement as the agent of auDA for the sole purpose, but only to the extent necessary, to enable auDA to receive the benefit of the rights and covenants conferred on auDA under this Agreement.
- The Licensee warrants that, at the time of registration and renewal of the Domain Name,:
- they meet, and will continue to meet for the licence period of the Domain Name, the eligibility and allocation criteria prescribed in the Published Policies; and
- the details in respect to the Domain Name submitted to ESA by the Licensee are true, complete and correct, and not misleading, and that any future additions or alterations to those details will be true, complete and correct, and not misleading.
- An agent making an application to register or renew the Domain Name on behalf of the Licensee, warrants to the ESA that they have been granted the requisite authority by the Licensee to make an application and bind the Licensee to the terms and conditions of this Agreement.
- ESA may rely on instructions received from the Licensee's agent as if they were the Licensee's instructions, and the Licensee is responsible for any errors or breaches of this Agreement made by the agent.
- ESA will provide Registrar Services to the Licensee via the Registrar Website, including:
- services directly related to the registration, delegation, administration, renewal, transfer, modification, and cancellation of the Domain Name and administrative management of related information; and
- any other services or processes, reasonably required under the Published Policies in order to assist with, support and provide for, the efficient management of the Domain Name.
- ESA will process the Licensee's application to register or renew the Domain Name and consider whether to accept or reject it in accordance with the eligibility and allocation criteria specified in the current Published Policies at the time of the application.
- ESA will not accept further applications to register the Domain Name while the decision whether to accept or reject the Licensee's application is under review or pending.
- Where the Domain Name application is accepted, ESA will submit the Domain Name registration details or the licence period for a renewal of the Domain Name to the .au Registry Operator. Upon the application being successfully processed, ESA will notify the Licensee (or the Licensee's agent) via e-mail.
- Where the Domain Name application is rejected, ESA will notify the Licensee (or the Licensee's agent) via e-mail specifying the reason or reasons why. ESA may also advise any remediation that the Licensee must undertake to have the application reassessed, and information on the review, complaint and/or dispute process as appropriate.
- ESA will give written notice to the Licensee if it is no longer operating as an auDA accredited registrar, or if ESA's auDA accreditation is suspended or terminated.
Registration and Renewal of the Domain Name
- ESA reserves the right to determine whether the Licensee meets the eligibility criteria prescribed in the Published Policies relevant to the application to register or renewal the Domain Name.
- There is no hierarchy of or proprietary rights with regards to registering the Domain Name. The use of a trademark or business name does not imply authority to use a Domain Name. Domain Names are registered on a first come, first served basis. If the relevant eligibility and allocation criteria are met, the first application to register the Domain Name may be granted a licence for it.
- It is not possible to pre-register or otherwise reserve Domain Names. The Licensee must be able to meet the relevant eligibility and allocation criteria when applying to register the Domain name. Unless otherwise agreed, the Licensee has 14 days from the date of application to demonstrate that they meet the criteria and supply any supporting documentation requested by ESA before a pending application to register a domain name will be cancelled.
- The eligibility and allocation criteria prescribed in the Published Policies must be met by the Licensee directly and are not transferrable/cannot be inherited from a third party (including a related body corporate).
- Neither ESA nor the Licensee has any right of ownership in a registered Domain Name.
- The parties agree to an initial licence period for use of the Domain Name of two years from the date of registration. Thereafter, the licence may be renewed indefinitely for periods of two years. This is subject to the Licensee:
- applying to renew the Domain Name;
- paying the applicable renewal fee prior to the expiry of the Domain Name; and
- complying with the terms of this Agreement.
- The Licensee may request a different licence period whereby it is seeking to have the expiry date of the Domain Name synchronised with the expiry date of another Domain Name held by the Licensee.
- The Licensee may renew the Domain Name in the period from 90 days before and 30 days after the expiry date of the licence. Where the Licensee does not submit an application to renew the Domain Name:
- before the expiry date, the Registry Operator will automatically suspend the delegation of the Domain Name resulting in any services attached to the domain name no longer resolving; or
- in the 30 days after the expiry date, the Registry Operator will delete the Domain Name and it will become publicly available for applications to register.
- ESA offers an automatic renewal function for the Domain Name. If using this function, the Licensee agrees to:
If the Licensee has not nominated a default credit card, or the payment otherwise fails to process, then the automatic renewal will not be processed and the Domain Name will revert to the standard, opt-in process requiring the Licensee to manually submit an application to renew.
- the renewal being processed 30 days prior to the expiry date (subject to the Licensee continuing to meet the eligibility and allocation criteria prescribed in the Published Policies); and
- ESA charging the renewal fees to the default credit card nominated by the Licensee;
- The Licensee acknowledges that:
- it is their responsibility to ensure that the Domain Name is renewed;
- ESA will issue reminder notices via e-mail to the e-mail address provided by the Licensee, and the Licensee must update this information to keep it accurate for the duration of the licence period; and
- they release and hold harmless ESA against any claim for damage or loss arising from any failure of the Licensee's Domain Name to be renewed.
- The Licensee may transfer the Domain Name to another entity via a request in the manner specified on the Registrar Website.
- The fees for the registration or renewal of a Domain Name or any related Registrar Services are set out in a pricing notice on the Registrar Website. The Licensee agrees to pay the relevant fees when the Licensee's Domain Name application for registration or renewal is submitted to ESA.
- The Licensee's application for the registration or renewal of a Domain Name will not be processed until ESA receives all applicable fees from the Licensee.
- Post-paid invoicing for the registration or renewal of a Domain Name is subject to prior written approval. The Licensee agrees to pay such fees in accordance with the payment terms set out on the associated invoice or in a separate agreement between the parties. Failure to pay the associated fees within these terms may result in suspension and cancellation of the Domain Name registration.
- The reselling of Domain Names is prohibited. Where an agent of the Licensee submits an application to register or renew the Domain Name, the invoice will be issued in the name of the Licensee. Any administration, support or auxiliary services provided to the Licensee by the agent must be invoiced separately to the Licensee by the agent.
- Licensees may request cancellation of that the Domain Name registration within 72 hours of registration or renewal. The Licensee will then receive a full refund of the fees. Requests to cancel the licence after 72 hours are not eligible for a refund.
Cancellation or Suspension of the Domain Name
- The Licensee may make a written request for cancellation of their Domain Name licence during the licence period.
- The registration of a Domain Name is subject to cancellation or suspension by ESA or auDA under the circumstances and associated procedures prescribed in the Published Policy.
- ESA may cancel or suspend the Licensee's Domain Name, or reject an application to renew the Domain Name if as reasonably determined by ESA in its sole discretion:
- the Licensee no longer meets the eligibility or allocation criteria prescribed in the Published Policies;
- the Licensee breaches the terms and conditions of this Agreement;
- the Licensee's use of the Domain Name demonstrates that a warranty provided by the Licensee is false, incomplete and incorrect, or misleading; or
- where services attached to the Domain Name:
and the Licensee either fails to remediate the effected services, or the risk/harm posed to potential users accessing the affected services is deemed to warrant urgent suspension of the domain name before the Licensee can be contacted.
- have been compromised;
- are being used for phishing, spamming, or the distribution of malicious software;
- are being used to host or disseminate obscene or adult materials; or
- are otherwise being used for illegal or fraudulent activity;
Expiry or Termination of Agreement
This Agreement will expire when the Licensee's Domain Name licence expires and is not renewed by the Licensee within the renewal period.
This Agreement will terminate on the effective date of cancellation of the Licensee's Domain Name.
If the Licensee transfers its Domain Name to another person then this Agreement will terminate on the date of such transfer.
Complaints/Third Party Disputes
The Licensee acknowledges and is bound to the complaints handling processes and procedures prescribed in the Published Policies and published on the Registrar Website.
In the first instance, a Licensee should submit all complaints/requests for review of decisions relating to the allocation and management of a Domain Name to ESA, including:
- the registration of the Domain Name;
- the renewal of the Domain Name;
- the delegation of / changes to a Domain Name;
- the transfer of a Domain Name licence to another party;
- possible breaches of this Agreement; and
- a party's eligibility to hold a Domain name licence.
Where the Licensee is not satisfied with the response received from ESA, or has a complaint regarding the Published Policies themselves, the Licensee may request that the complaint or decision be escalated to auDA.
ESA is unable to handle complaints relating to:
- internet access or email services;
- web hosting, website management, website design or other related third party services;
- whether a Domain Name infringes upon or otherwise violates the rights of any third party (for example, trademark or copyright matters); or possible breaches of the Telecommunications Act 1997 (Cth), the Broadcasting Services Act 1992 (Cth), the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth) or any other legislation.
Indemnification and Limitation of Liability
The Licensee agrees that notwithstanding any other provision of this Agreement and to the fullest extent permitted by law, neither auDA, the Registry Operator nor ESA will be liable to the Licensee for direct, consequential or indirect loss or damages of any kind (including, without limitation, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by the Licensee as a result of any act or omission of auDA, the Registry Operator or ESA, or any act or omission of the officers, employees, agents or sub-contractors of auDA, the Registry Operator or ESA.
If any legislation implies a term or warranty in this Agreement, the Licensee agrees that ESA's liability under this Agreement for a breach of that term or warranty is limited to, in the sole discretion of ESA, the re-supply of the goods or services again, or the payment of the cost of having the goods repaired or replaced, or the services supplied again.
The Licensee indemnifies ESA against any claim that the registration of the Domain Name or the manner in which the Domain Name is directly or indirectly used infringes the legal rights of any third party (except for claims arising from ESA's negligence or breach of the terms of this contract), and indemnifies ESA against the costs and expenses, however they may arise, incurred in defending or dealing with such a claim.
To the fullest extent permitted by law, auDA is not liable to the Licensee for any Consequential Loss or damage suffered by Registrant arising from, as a result of, or otherwise in connection with, any wrongful or negligent act or omission of auDA, its officers, employees, agents or contractors, sub-contractors and professional advisers. In this clause "Consequential Loss" means any indirect, incidental, special or consequential loss or damage, pure economic loss damages and exemplary or punitive damages, including loss or damage in relation to loss of use, loss of production, loss of revenue, loss of profits or anticipated profits, loss of business, loss of business opportunity, loss of contract, loss of reputation or opportunity, business interruptions of any nature, loss of data, data corruption rectification costs or loss or damage resulting from wasted management time.
ESA indemnifies each of auDA and its officers, employees or agents against any liability, loss, damage, charge, expense, outgoing or cost arising out of, and in connection with, the Licensee's registration or use of its .au licence.
Nothing in this Agreement is intended to exclude the operation of the Competition and Consumer Act 2010 (Cth).
If any clause of this Agreement is held to be invalid or unenforceable in whole or part, the invalid or unenforceable wording shall be deemed to be omitted.
The contract is governed by Victorian law, and the parties submit to the non-exclusive jurisdiction of the Victorian courts.
The failure of a party at any time to insist on strict performance of any provision of this Agreement is not a waiver of its right at any later time to insist on strict performance of that or any other provision of this Agreement.
Clauses 13, 48, 49, 50, 51, 52 and 53 survive the expiry or termination of this Agreement.