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Domain Name Management Agreement

Domain Name Management Agreement


1. Introduction

1.1. This Domain Name Management Agreement ("Agreement") governs the terms and conditions upon which Fabulous.com Pty Ltd ACN 094 218 443 ("Fabulous.com") agrees to provide you with, or procure the provision of, the services described in clause 2 of this Agreement ("Services") in regard to certain internet domain names owned or controlled by you ("Domains").

1.2. By using the Services, you acknowledge and agree that you have read, understood, and agree to be bound by the terms and conditions of this Agreement, as well as our Privacy Policy and Anti-Spam Policy.

1.3. You acknowledge and agree that if you are in breach of this Agreement, Fabulous.com may suspend, cancel, or modify your use of the Services or terminate this Agreement by providing you with notice to your primary email address listed on your Fabulous.com account ("Account").

1.4 Fabulous.com reserves the right to amend the terms and conditions set out in this Agreement or the operation of the Services by notice to your Account. Where we vary the charges applying to the Services, we will give you 14 days prior notice of the change. If you do not agree to the amendment of the terms or conditions of this Agreement or the operation of the Services or the variation in the charges, you may terminate the Agreement by emailing support@fabulous.com.

1.5 For the purposes of this Agreement, Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).

1.6 For the purposes of this Agreement "monetization partners" refers to independent third parties who provide pay per click advertising feeds for use by our clients.

2. Services

2.1. Fabulous.com agrees to provide, or procure the provision of, the following services to you ("Services"):

  1. Hosting of the Domains on Fabulous.com's nameservers;
  2. Redirecting the internet traffic from the Domains ("Domain Traffic Redirection Service") to the websites of third parties who have an existing commercial arrangement with Fabulous.com or its affiliates to purchase domain name traffic ("Fabulous Advertisers") or to the websites of third parties other than Fabulous Advertisers ("Independent Websites");
  3. The tracking, reporting and payment of revenue earned by you as a result of using the Domain Traffic Redirection Service;
  4. Domain name registrations and renewals at a discounted rate;
  5. Free domain name listing and classified service to facilitate the buying and selling of existing registered domain names ("Classified Service"); and
  6. Software, text, images and other content to enable custom websites to be created and hosted on the Domains ("Website Generation Services").

2.2. For the purposes of this Agreement, acceptable internet traffic constitutes traffic resulting from a domain name type-in and/or organic search engine traffic. It is at the sole and absolute discretion of Fabulous.com as to any other forms of traffic that are regarded as acceptable.

2.3. Any website created or modified using the Website Generation Services ("Generated Websites") shall at all times remain the property of Fabulous.com and all copyright and other legal and equitable rights in the Generated Websites shall vest in Fabulous.com.

3. Domain Traffic Redirection Service

3.1. The Domain Traffic Redirection Service shall be provided to you on the following terms and conditions:
(a) You shall not under any circumstances:

  1. provide consideration (whether monetary or otherwise) to any third party (whether directly or indirectly) to procure internet traffic by any means whatsoever to the Domains;
  2. use any frameset, landing page or other similar device when redirecting internet traffic from the Domains to Fabulous Advertisers offering payment for this traffic on a "per click" basis;
  3. attempt to redirect internet traffic to the Domains from any other domain names you own or control;
  4. include hyperlinks to the Domains or sub-domains of the Domains:
    • On or in any websites owned or controlled by you; or
    • On or in any electronic mail message (including both unsolicited and "opt-in" or permission email), newsgroup, message board, banner network, counter, chat room, guest book, IRC channel or on or through any other similar device or facility;
  5. directly or indirectly procure or forward Unqualified Internet Traffic to the Domains. For the purpose of this Agreement, "Unqualified Internet Traffic" means traffic acquired from Incentivized Links or Unauthorised Clicks or from any other source that contains content that does not have a logical and apparent connection with the relevant Domain. "Incentivized Links" means those links accompanied by any representation which encourages individual users to click on the link in order to earn money, points or any other reward. "Unauthorised Clicks" means fraudulently generated clicks or clicks generated by you or your agents and/or your relative (being your spouse, defacto spouse, parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister) to procure internet traffic to the Domains;
  6. "crawl", "spider", index or in any non-transitory manner store or cache information obtained from the Domain Traffic Redirection Service.

(b) Fabulous.com reserves the right to determine in its sole and absolute discretion, that traffic from the Domains is Unqualified Internet Traffic. In the event that such a determination is made, Fabulous.com may immediately upon notifying you (in writing or via email) of its determination, suspend or terminate the Domain Traffic Redirection Service in relation to the offending Domains or suspend or terminate the Services altogether. You will not be entitled to receive any commissions or other amount derived from Unqualified Internet Traffic.

(c) If you agree to use the Fabulous.com Suggested Phrase/Related Links service for the Domains subject to the Domain Traffic Redirection Service, you will be responsible for ensuring that you submit relevant phrases and/or terms. For the purposes of this Agreement, phrases and/or terms shall be relevant only if they relate to goods or services that have a logical and apparent connection with the Domains, so that it could reasonably be expected that individual users comprising the traffic from the Domains would be interested in acquiring the goods or services of the relevant Fabulous Advertisers or the Independent Websites to whom the traffic is sent.

(d) You will be responsible for categorizing each of the Domains to ensure that the traffic from the Domains is sent to the Appropriate Fabulous Advertisers. For the purposes of this Agreement, the "Appropriate Fabulous Advertisers" shall be those Fabulous Advertisers that provide goods or services that have a logical and apparent connection with the relevant Domain, so that it could reasonably be expected that individual users comprising the traffic from the relevant Domain would be interested in acquiring the goods and services of the Fabulous Advertisers to whom the traffic is sent.

(e) Fabulous.com reserves the right to determine in its sole and absolute discretion that the traffic from one or more of the Domains is not being redirected to the Appropriate Fabulous Advertisers. In the event that such a determination is made, Fabulous.com may immediately upon notifying you (in writing or via email) of its determination, redirect the traffic from the relevant Domain to those Fabulous Advertisers it chooses (in its sole and absolute discretion) until such time as you and Fabulous.com reach an agreement (in writing or email) regarding who the Appropriate Fabulous Advertisers for the relevant domain name are.

(f) Fabulous.com reserves the right to determine in its sole and absolute discretion whether the phrases and/or terms submitted by you when utilizing the Fabulous.com Suggested Phrase/Related Links service are relevant. A determination by Fabulous.com that the phrases and/or terms for the Domains are relevant does not necessarily mean that they have been approved by the Fabulous Advertisers or the Independent Websites, and as such, Fabulous.com reserves the right to modify, remove or replace these phrases and/or terms at any time.

(g) You acknowledge and agree that Fabulous.com is paid a proportion of the revenue earned from the redirection of internet traffic from the Domains.

(h) Fabulous.com provides these services in conjunction with third party monetization partners. In order for Fabulous.com to provide the Services:

  1. your personal information will be provided to monetization partners;
  2. you must upon request, verify your identity and provide any other information required by Fabulous.com;
  3. Fabulous.com may send your personal information outside of Australia.

4. Fabulous.com Domain Name Registration Services

4.1. By registering and or renewing domain names with Fabulous.com, you acknowledge that you have read, understood and agree to be bound by the terms and conditions of the Fabulous.com Domain Name Registration Agreement.

5. Prohibited use of Domains

5.1. You warrant and covenant that:

  1. The Domain(s) shall not be used in such a 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" or otherwise ("Misleading Activity");
  2. The Domain(s) shall not be redirected to Independent Website(s) that contain material or content (or links to such content) that:
    1. Is hateful, defamatory, derogatory or bigoted based on racial, ethnic, political grounds or which may otherwise cause injury, damage or harm of any kind to any person or entity;
    2. Is threatening or invades another person's privacy or property rights or is otherwise in breach of a duty owed to a third party;
    3. Depicts minors engaged in any activity of a sexual nature or which may otherwise harm minors;
    4. Infringes the registered trademark, copyright, patent rights, trade secret or other intellectual property rights of a third party;
    5. Violates any applicable local, state, national or international law or regulation;
    6. 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;
    7. Advertises or offers for sale any goods or services that are unlawful or in breach of any national or international law or regulation; or
    8. Advertises or offers for sale any goods or services the advertiser does not have the legal right to sell,
      (collectively referred to as "Illegal Activities").

5.2. Fabulous.com does not condone the use of the Domains for or in connection with any Misleading Activity or 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 the Domains are being used in such manner.

5.3. Domain Names with an Australian connection
In relation to any Domains that are .com.au second level domain names or top level domain names which include any word or phrase which may be reasonably be interpreted as intended to target internet users located in Australia ("Australian Domains"), you warrant and covenant that you will not under any circumstances redirect internet traffic (either directly or indirectly) from any Australian Domains to website(s) that contain content (or links to such content) that involves the provision or promotion of gambling or gaming activities (whether or not such activities are legal or illegal in the jurisdiction in which the activities are conducted).

6. No warranties

6.1 To the maximum extent permitted by law (including the Australian Consumer Law), Fabulous.com disclaims all warranties and guarantees, whether express or implied, regarding the Services. To the extent that such warranties or guarantees cannot be disclaimed by law, you agree that the liability of Fabulous.com shall be limited to the re-supply of the Services (except to the extent that such limitation is in breach of the Australian Consumer Law).

7. Limitation of Liability
7.1. To the maximum extent permitted by law (including the Australian Consumer Law), Fabulous.com and its related companies and affiliates and their directors, officers, employees and agents, will not be liable to you nor any third party for any indirect, incidental, special or consequential loss or loss of income arising out of or relating to this Agreement or your use of the Services.

7.2 To the maximum extent permitted by law (including the Australian Consumer Law), you agree that in no event will the liability of Fabulous.com under this Agreement for any matter exceed the amount of any revenue earned by Fabulous on the Domains during the 12 month period prior to when the liability arose.

8. Indemnity

8.1. You remain solely responsible for and liable in respect of all acts and omissions related to redirecting traffic from the Domains to Independent Websites.

8.2. Under no circumstances shall Fabulous.com be responsible or liable for your acts or omissions in relation to redirecting traffic from the Domains to the Independent Websites, nor for the material or content on the Independent Websites.

8.3. To the maximum extent permitted by law (including the Australian Consumer Law), you agree to indemnify, keep indemnified and forever hold harmless, Fabulous.com and its affiliates, and 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 this Agreement or your use of the Services.

9. Confidentiality

9.1 For the purposes of this clause, "Confidential Information" means information disclosed by (or on behalf of) one party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances in which it is presented. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party.

9.2 The recipient of any Confidential Information will not disclose that Confidential Information except to employees and/or agents who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure those people and entities use Confidential Information only to exercise rights and fulfil obligations under this Agreement and keep the Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving the discloser reasonable notice and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.

10. Monitoring of Traffic Quality

10.1. The traffic generated by the Domains will be continuously monitored by Fabulous.com to ensure that traffic that is being sent through to the advertisers is of an acceptable standard so as to protect advertisers, other domain name owners using the Services and the integrity of the network.

10.2. Fabulous.com reserves the right to immediately suspend, cancel or modify the Services in relation to a particular Domain upon giving notice to you, if it determines in its sole and absolute discretion that the quality of the traffic from the Domain is not of an acceptable standard.

10.3. Fabulous reserves the right to claw back payments made to you up to 90 days old. The payments will be clawed back if it is determined by Fabulous or its upstream provider that the traffic received to the domain name was of a substandard level. You agree that if you have received funds and these funds are clawed back that you will return those payments to the sending party within 7 days of receiving such notification.

11. Prohibited Domain Traffic

11.1. The Domains or links to the Domains whether direct or indirect, shall not be displayed on or in newsgroups, message boards, electronic mail messages (including both unsolicited and "opt-in" or permission based e-mail, banner networks, counters, toolbars, chat rooms, guest books, IRC channels or any similar devices ("Prohibited Traffic").

11.2. Traffic generated by the Domains as a result of adware, spyware, viruses, Trojans or any similar program installed on the visitor's computer shall be deemed to be Prohibited Traffic.

11.3. Fabulous.com reserves the right to immediately suspend, cancel or modify the Services in relation to a particular Domain upon giving notice to you, if it determines in its sole and absolute discretion that any traffic from the Domains is Prohibited Traffic, whether caused by your actions or the actions of a previous owner of the Domains.

12. Suspension, Cancellation or Modification of Services

12.1. If you are in breach of this Agreement, Fabulous.com may suspend, cancel or modify your use of the Services or terminate this Agreement by providing you with notice to the primary email address listed on your Account.

13. Survival

13.1. Clauses 6, 7, 8, 9, 10 and 14 shall survive the termination or expiration of this Agreement.
15. Severability

14.1. 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.

15. Entire Agreement

15.1. To the maximum extent permitted by law (including the Australian Consumer Law), this Agreement constitutes the entire agreement between you and Fabulous.com regarding the provision of the Services and supersedes all prior agreements and understandings, whether established by custom, practice, policy, or precedent.

16. Governing Law

16.1. 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.

17. Relationship

17.1. Nothing in this Agreement shall be construed as creating the relationship of agency, partnership or joint venture between the parties.

18. Force Majeure

18.1. 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.

19. Waiver

19.1. Failure by Fabulous.com 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.

20. Notices

20.1. All notices required to be sent under this Agreement shall be sent via e-mail:
(a) If to Fabulous.com, to support@fabulous.com
(b) If to you, to your primary e-mail address listed on your Account.

20.2. 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.