Whois Privacy Services Agreement
1.1 Whois Privacy Services Pty Ltd ACN 133 058 741 ("Whois Privacy") is in the business of helping you protect your privacy by providing a domain name privacy registration service ("Whois Privacy Service" or "Service"). When you subscribe to the Whois Privacy Service, any domain name ("Registered Name") that you wish to register with Fabulous.com Pty Ltd ("Registrar") may be registered in the name of Whois Privacy.
1.2 This Agreement governs the terms and conditions upon which Whois Privacy agrees to provide you with the Whois Privacy Service.
1.3 Whois Privacy reserves the right to amend the terms and conditions contained in this Agreement at any time by posting the amended Agreement in full, to www.Fabulous.com ("Website") without further notice to you, effective immediately upon such posting.
1.5 You agree to comply at all times with the rules and policies adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") including the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the terms, conditions and policies imposed by the Registrar.
1.6 You acknowledge and agree that Whois Privacy may in its sole and absolute discretion, suspend, cancel, or modify the Whois Privacy Service or your use of the Service at any time in accordance with clause 6 of this Agreement, without notice to you.
2. Description of the Service
2.1 When you subscribe to the Service, the following data will either be submitted to the relevant Registry Operator in respect of .org and .info top level domains ("TLDs") or retained by the Registrar in respect of .com and .net TLDs, and included in the publicly available Whois directory in respect of the Registered Name:
(a) Whois Privacy's name and postal address as registrant of the Registered Name, together with your unique customer identifier (which is only known to Whois Privacy);
(b) Whois Privacy's name, postal address, e-mail address, voice telephone number and fax number as technical contact for the Registered Name;
(c) Whois Privacy's name, postal address, e-mail address, voice telephone number and fax number as administrative contact for the Registered Name;
(d) The names of the primary and secondary name servers nominated by you for the Registered Name;
(e) The identity of the Registrar; and
(f) The original creation date and expiration date of the registration.
2.2 Whois Privacy may modify its information from time to time in such a way which may constitute a “Change of Registrant” under ICANN’s Transfer Policy (the “Transfer Policy”).
In such a case, you and Whois Privacy explicitly opt out of any 60-day inter-registrar transfer lock that would otherwise be imposed under the Transfer Policy due to any such Change of Registrant. In addition, you and Whois Privacy explicitly authorize the registrar of the Registered Name to act as its “Designated Agent” (as defined in the Transfer Policy) to approve each “Change of Registrant” (as defined in the Transfer Policy) on its behalf.
3. Your Rights
3.1 Even though you will not be listed as the registrant of the Registered Name, subject to clause 6 of this Agreement, you retain the benefits attributed to a registrant of a domain name, including the right to sell, transfer or assign the Registered Name, the right to renew or cancel your Registered Name and the right to designate the primary and secondary name servers.
3.2 You may elect to cancel your subscription of the Service, at which time you will become the official registrant of the Registered Name. The personal information that you have provided pursuant to clause 4 will be included in the publicly available Whois Directory.
4. Warranties and Obligations
4.1 You shall provide to Whois Privacy, accurate and reliable contact details and promptly correct and update them during the term of your subscription of the Service in respect of the Registered Name, including:
(a) your full name, postal address, e-mail address, voice telephone number, and fax number (if available); the name of the authorized person for contact purposes if you are an organization, association, or corporation;
(b) the names of the primary and secondary nameservers for the Registered Name;
(c) the name, postal address, e-mail address, voice telephone number, and (where available) fax number of the technical contact for the Registered Name; and
(d) the name, postal address, e-mail address, voice telephone number, and (where available) fax number of the administrative contact for the Registered Name.
4.2 Your wilful provision of inaccurate or unreliable information, your wilful failure to promptly update information provided to Whois Privacy, or your failure to respond for over fifteen calendar days to inquiries by Whois Privacy concerning the accuracy of contact details associated with your registration shall constitute a material breach of this Agreement and be a basis for termination of this Agreement.
4.3 You warrant that the registration or renewal of the Registered Name and your use of the Whois Privacy Service is made in good faith and that, to the best of your knowledge and belief, neither the registration nor renewal of the Registered Name nor the manner in which it is or shall be used, either directly or indirectly, infringes the intellectual property rights or other legal rights of any third party. A breach of this warranty shall constitute a material breach of this Agreement.
4.4 You warrant and covenant that:
(a) The Registered Name shall not be used in such way as to mislead or deceive minors into viewing sexually explicit material, whether in breach of the provisions of H.R.939 Truth in Domain Names Act (United States) or otherwise ("Misleading Activity");
(b) The Registered Name shall not be used to redirect internet traffic to any website that contains content (or links to such content) that:
(i) is hateful, defamatory, derogatory or bigoted based on racial, ethnic, sexual preference, age, disability or political grounds or that may otherwise cause injury, damage or harm of any kind to any person or entity;
(ii) that is threatening or invades another person's privacy or property rights or is otherwise in breach of a duty owed to a third party;
(iii) depicts minors engaged in any activity of a sexual nature or which may otherwise be harmful to minors;
(iv) infringes the registered trademark, copyright, patent right, trade secret or other intellectual property right of a third party;
(v) violates any applicable local, state, national or international law or regulation;
(vi) promotes, is involved in or assists in, the conduct of illegal activity of any kind or promotes business opportunities or investments which are not permitted under law;
(vii) advertises or offers for sale any goods or services that are unlawful or in breach of any national or international law or regulation;
(viii) advertises or offers for sale any goods or services that the advertiser does not have the legal right to sell;
(ix) breaches the Anti-spam Policy; or
(x) attempts to defraud members of the public in any way (for example, "phishing" sites),
(collectively referred to as "Illegal Activities").
4.5 Whois Privacy does not condone the use of a Registered Name for or in connection with any Misleading Activity or any Illegal Activity and reserves the right to report such activities to the relevant legal enforcement agencies if it determines in its sole and absolute discretion that a Registered Name is being used in such manner.
5. Collection of Personal Information
5.1 In order to subscribe for the Whois Privacy Service, you must provide to Whois Privacy the information set out in all of the fields of the subscription form ("Personal Information"). You warrant that all Personal Information provided is complete, accurate, reliable and not otherwise misleading. You undertake to ensure that the Personal Information remains correct and current at all times and to notify us immediately if there has been a change in the Personal Information. Failure to comply with this clause shall constitute a material breach of this Agreement.
5.2 You may access the Personal Information provided to Whois Privacy by logging in to your Fabulous.com Account.
5.7 Whois Privacy undertakes to use all reasonable precautions to protect Personal Information from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
6. Rights of Whois Privacy
6.1 Whois Privacy has the right at its sole discretion to suspend, cancel or modify the Service or to cancel your subscription of the Service (which would result in you becoming the official registrant of the Registered Name and your Personal Information becoming available on the publicly available Whois Directory) at any time.
6.2 Whois Privacy has the right to disclose your identity and your other Personal Information:
(a) If required by law or government rules or requirements;
(b) If required by any of ICANN's standards, policies, procedures or practices, including the UDRP;
(c) To comply with any legal process served upon Whois Privacy;
(d) If necessary to avoid any financial loss or legal liability (whether civil or criminal) on the part of Whois Privacy or any of its related companies and their directors, officers and employees; or
(e) If deemed necessary at the sole discretion of Whois Privacy.
6.3 Whois Privacy may resolve any and all third party claims, whether threatened or made, arising out of your registration or use of the Registered Name.
6.4 Whois Privacy may take any action that it deems necessary:
(a) Where you have breached this Agreement, including any of the warranties;
(b) To protect the integrity and stability of the applicable Registry Operator;
(c) To comply with any laws or government rules or regulations;
(d) To comply with any legal process served upon Whois Privacy;
(e) To comply with ICANN's standards, policies, procedures or practices;
(f) To avoid any financial loss or legal liability (whether civil or criminal) on the party of Whois Privacy or any of its related companies and their directors, officers and employees, or otherwise in its sole discretion.
7. Forwarding Communications
7.1 As the official registrant of your Registered Name, Whois Privacy will receive communications relating to your Registered Name.
7.2 Whois Privacy may decide not to forward a communication to you if it appears to be junk or unsolicited mail, and you hereby waive any and all claims arising from your failure to receive communications directed to your Registered Name but not forwarded to you by Whois Privacy, including a failure arising from an incorrect judgement of Whois Privacy that the communication is of an unsolicited nature. You hereby authorise Whois Privacy to delete communications of an unsolicited nature.
7.3 For mail or faxes sent to your Registered Name that are not of an unsolicited nature, Whois Privacy may decide to scan the mail or fax and send to your e-mail address notified to Whois Privacy, or send the mail or fax by Fedex to the address notified to us by you. Emails sent to your Registered Name will be forwarded to your e-mail address notified to Whois Privacy. Telephone messages will be taken for your Registered Name using a unique code and the message recordings will be forwarded to your e-mail address.
7.4 You hereby authorise Whois Privacy to read or listen to all communications received in relation to your Registered Name, including telephone messages.
7.5 You agree that a handling fee of US$25 will be charged to you by Whois Privacy whenever physical action is required on the part of Whois Privacy to forward mail or fax to you. This does not apply to the automatic forwarding of email or telephone messages., This handling fee is in addition to the postage cost (together referred to as the "Forwarding Charge") and you hereby authorise Fabulous.com Pty Ltd to deduct the amount of the Forwarding Charge from your Fabulous.com Account.
7.6 If you are an Australian resident for taxation purposes, then in addition to the fees referred to in this clause 7, Whois Privacy is entitled to charge and collect from you an amount equal to 10% of those fees on account of the Goods and Services Tax ("GST") payable by Whois Privacy under the A New Tax System (Goods and Services Tax) Act 1999.
8. No Warranty
8.1 To the fullest extent permitted by law, Whois Privacy disclaims all warranties, whether express or implied, regarding the Services, including but not limited to merchantability and fitness for purpose. To the extent that such warranties cannot be disclaimed, you agree that the liability of Whois Privacy shall be limited to the re-supply of the Services.
9. Limitation of Liability
9.1 To the greatest extent permitted by law, Whois Privacy and its related companies and their directors, officers, employees and agents, shall have no responsibility and shall not be liable to you for any and all direct, indirect, incidental, special, exemplary, or consequential loss or damage, whether caused by breach of contract, breach of statutory duty, tort (including but not limited to negligence, conversion or trespass to chattels), wilful acts or omissions, strict liability, the unauthorized or illegal activity of a third party, or otherwise, that arises out of or in connection with the provision or use of the Services, including disclosure of your identify or other Personal Information.
10.1 You agree to indemnify, keep indemnified and forever hold harmless, Whois Privacy and its related companies, their directors, officers, employees and agents, from and against any and all claims, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) arising out of or in connection with the use of the Services or your registration or use of the Registered Name.
11.1 Either party may terminate this Agreement by giving notice to the other party.
11.2 This Agreement will automatically terminate if the Registrar ceases to be the registrar of your Registered Name.
12.1 Clauses 4, 5, 8, 9 and 10 shall survive the termination or expiration of this Agreement.
13.1 The terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, it shall be severed from this Agreement and shall not affect the interpretation or operation of the remaining terms or provisions, which shall remain in full force and effect.
14. Entire Agreement
14.1 This Agreement constitutes the entire agreement between you and Whois Privacy regarding the provision of the Services and supercede all prior agreements and understandings, whether established by custom, practice, policy, or precedent.
15. Governing Law
15.1 This Agreement is governed in all respects by and construed in accordance with the laws of the State of Queensland, Australia, and you submit to the non-exclusive jurisdiction (without prejudice to other potentially applicable jurisdictions) of the Courts of Queensland.
16.1 Nothing in this Agreement shall be construed as creating the relationship of agency, partnership or joint venture between the parties.
17. Force Majeure
17.1 Neither party will be in default or otherwise liable for any delay or failure in its performance under this Agreement where such delay or failure arises by reason of an Act of God, any government or governmental body, acts of war, the elements, strikes or labor disputes, power or system failures, failure of the Internet, computer hacking, or other causes beyond the reasonable control of such party.
18.1 Failure by Whois Privacy to exercise or enforce any right or provision of this Agreement shall not be deemed to be a waiver of such right or provision and does not affect the right to require any provision to be performed at any time thereafter.
19.1 All notices required to be sent under this Registration Agreement shall be sent via e-mail:
(a) If to Whois Privacy, to email@example.com;
(b) If to you, to the e-mail address listed on your Fabulous.com account at the relevant time.
19.2 Any notice sent shall be deemed to have been received at the time and date logged by the sender's email server of confirmation of delivery of the email message to the recipient's email server.