1.    Term

1.1   Term

This Agreement commences on the Effective Date and continues for a period of 12 months, for the Initial Term. Following the Initial Term, unless one party gives at least thirty (30) days’ written notice to the other party prior to the expiry of the Initial Term, this Agreement will automatically be renewed for a further term equal to the Renewal Period.

1.2.  Further Term

Following the Renewal Period, unless one party gives at least thirty (30) days’ written notice to the other party prior to the expiry of a Renewal Period, this Agreement will automatically be renewed for further terms equal to a Renewal Period.

2.    Services

2.1.  Services

(a).   Brandsec will perform the Services for the Customer under the terms of this Agreement and each party will comply with the services description and the Service Schedule.

(b)  The Customer agrees that where it requires Brandsec to register, transfer or renew domain names in its Domain Portfolio as part of the Corporate Domain Management Services:

(i)   Brandsec will ensure that such domain names are registered to the Customer by a relevant Registrar or Registry (as required) in the relevant domain space.

(ii)  The Customer acknowledges that it will be bound by the Registration Agreements of the relevant Registrar or Registry in respect of those domain names. The Customer acknowledges that a number of these Registration Agreements are located at Brandsec.com.au. Brandsec will provide the Customer with copies of any other relevant Registration Agreements upon receipt of the Customer’s written request.

(c)  The Customer will provide such information and instructions to Brandsec as is reasonably required by Brandsec, and acknowledges that:

(i)   Brandsec will not be liable for any failure in the performance of the Internet Services if any failure is the result of inaccurate or untimely information or advice provided to it by the Customer;

(ii)   any Services will be subject to such limitations as are notified to the Customer by Brandsec, for example, in relation to the parameters of such monitoring or audit services; and=

(iii)   Brandsec makes no warrant or representation that it will find all such information publicly accessible on the internet (subject to its warranties in clause 6.1 of this Agreement) in relation to internet monitoring or audit services (including any domain name, brand, trade mark, fraudulent activity or other content infringement monitoring or audit services).

(d)  Unless otherwise confirmed in writing, domain name services are provisioned through the Brandshelter environment, including the transfers of domain names.

(e) Where the Customer orders Trade Mark Clearing House (TMCH) services, the customer authorises Brandsec to perform any other obligation under the Clearinghouse Validation Terms and Conditions for Trademark Agents.

(f) Where the Customer orders the Domains Domains Protected Marks List (DPML) Services, this is a service provided by Donuts in conjunction with the TLDs. It is applied for under ICANN’s new gTLD program) and enables the Customer to submit a DPML Block which prevents the registration of certain Second Level Domains (SLDs) in all TLDs owned and operated by Donuts. The DPML Service utilizes the TMCH and SMD Files generated for validated trademarks in the TMCH to determine which second-level domain names the Customer is able to apply for under this Agreement. Brandsec’s to provide the DPML Service is subject to change, including without limitation, complete discontinuation of the DPML Service by Donuts (including where based on any decision of ICANN or pursuant to applicable law or regulation).

3.    Payment

3.1.  The Customer will pay Brandsec the fees for each of the Services as set out in the Services description and Service Schedule in accordance with the time frames set out therein.

3.2.  For billing purposes, Brandsec shall invoice the Customer: 

(a)   annually in advance for Premium Domain name registrations and renewals; and

(b)   quarterly in arrears for other domain name registrations and renewals. 

3.3.  Domain name pricing is outlined in the Client Proposal and may include additional fees for transfer renewal fees where the Registry imposes a charge. As we allocate resources to the set up and migration of a domain name portfolio, the minimum amount the Customer will be liable for will be the total annual amount listed in the Client Proposal. Following the first annual anniversary of this Agreement and thereafter annually in January in each subsequent year Brandsec may increase its fees with one month’s written notice. Brandsec may at any time increase fees by the amount of any increase in any third party fees which Brandsec is required to pay to provide and/or perform the Services.

3.4.  If there are no time frames for payment set out in Services description or the relevant Service Schedule, Brandsec will invoice the Customer for fees under this Agreement and payment must be made by Customer within thirty (30) days of the receipt of invoice.

3.5.  If the Customer fails to pay in full any invoice which it does not reasonably dispute in good faith within 90 days of the date of invoice, Brandsec may suspend the performance of its obligations under this Agreement and will not be liable in any way for not performing those obligations, until that invoice has been paid in full.

3.6.  Words and expressions used in this clause that are not defined in this Agreement have the defined meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Unless expressly stated otherwise, all consideration payable under this Agreement in relation to any supply is exclusive of GST. The Customer will be responsible for the prompt payment of any taxes, duties or levies that may be imposed on Brandsec or the Customer in relation to the Services supplied by Brandsec to the Customer under this Agreement, including without limitation, any GST.

3.7   Where Brandsec provides Corporate Domain Management Services to the Customer under this Agreement, Brandsec grants the Customer a non-exclusive, non-transferable, royalty-free licence (with no right to sub-licence) to use and access the Online Portal on the terms of this Agreement.

4.    Confidentiality and Privacy

4.1.  Each party (Recipient) must keep confidential, and maintain proper and secure custody of, all Confidential Information of the other party (Owner) and must use and reproduce Confidential Information of the Owner only to exercise its rights and perform its obligations under this Agreement.

5.    Intellectual Property

5.1.  Brandsec intellectual property

(a)    Brandsec retains all copyright and other rights in any monitoring results, analysis, reports, written advice, UDRP or other claims, information or work performed for or provided to the Customer under this Agreement. 

(b)   The parties agree that notwithstanding clause 5.1(a), Brandsec licenses the Customer to use the materials described in clause 5.1(a) on a non-exclusive, non-transferable, royalty-free basis (with no right to sub-licence) for its internal business purposes and in the manner contemplated by, and otherwise in accordance with, the terms of this Agreement.

(c)    The Customer acknowledges that its use of or reliance on any monitoring, analysis, reports, written advice, UDRP or other claims, information or work performed for or provided to Customer by Brandsec under this Agreement is the sole responsibility of the Customer, and that Brandsec accepts no liability in relation to such use or reliance, or any matter arising from the Customer’s use or reliance, subject to Brandsec’s warranties in clause 6.1 of this Agreement.

(d)   Each party acknowledges that this Agreement does not transfer to it any intellectual property rights in any of the other party’s materials.

5.2.  The parties acknowledge and agree that:

(a)   the Customer does not acquire any rights to the Online Portal other than as are necessary for it to manage the Customer’s Domain Portfolio; and

(b)   the Online Portal is confidential and its disclosure to third parties could cause loss to Brandsec and its partners. The Customer will ensure that the Online Portal is not copied, disclosed or supplied to any third party other than such of the Customer’s employees who require access to the Online Portal to manage the Customer’s Domain Portfolio.

5.3.  Third-party intellectual property

The parties agree that where Brandsec uses third-party supplied software to perform the Services, Brandsec does not make any warranty or representation as to the merchantability or suitability for any particular purpose of such software, or that it will not infringe any third person’s rights. All such warranties and representations are excluded to the extent permitted by law.

6.    Warranty

6.1.  Brandsec warranty

(a)   Brandsec warrants that it will provide the Services in accordance with the degree of skill, care and diligence exercised by corporate domain management firms in Australia which supply services of a similar nature to the Services and on similar terms to those stated in this Agreement.

(b)   Brandsec agrees to perform the Services in accordance with the requirements of all applicable laws and regulations.

(c)   To the maximum extent permitted by law, all other terms and warranties expressed or implied by any legislation, the common law, equity, trade, customer usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded. If any legislation implies in this Agreement a term or warranty and also prohibits Brandsec from modifying the application of or exercise of, or liability under that term or warranty, then the Customer agrees that Brandsec’s liability under this Agreement for a breach of that term or warranty is limited to, in the sole discretion of Brandsec, 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.

6.2.   Customer warranty

Where the Customer receives Corporate Domain Management Services from Brandsec, the Customer warrants that:

(a)    none of the domain names in its Domain Portfolio nor any of the domain names that it requests of Brandsec to be registered, transferred or renewed in its name, infringes the rights of any third party; and

(b)    each related body corporate for which it acts has agreed with the Customer to place its domain names under the management of the Customer as if the Customer were the licensed holder of the Relevant Domain Names.

7.   Indemnity

7.1   The Customer agrees to indemnify, keep indemnified and hold Brandsec, harmless from and against all and any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether directly or indirectly incurred by Brandsec in respect of any claim by a third party arising in connection with this Agreement, except to the extent that such third party claim arises as a result of Brandsec’ negligence, wilful misconduct or breach of this Agreement.

7.2.  An indemnified party must take reasonable steps to mitigate its recovery under an indemnity.

8.   Liability

8.1.  To the fullest extent permitted by law, Brandsec has no liability to the Customer for any loss or damage (whether direct, indirect, consequential, loss of profits or otherwise) the Customer may incur (whether by negligence or fault of the Company or otherwise) in connection with the supply of the Services to the Customer or this Agreement generally.

9.   Termination

9.1    Either party may terminate this Agreement by giving ten (10) days written notice to the other party if:

(a)   the other party breaches any term of this Agreement and (if the breach is capable of remedy) the breach has not been remedied within fourteen (14) days after delivery of a notice in writing describing the breach and requiring it to be remedied; or

(b)   the other party:

(i)    has stopped or suspended or threatened to stop or suspend payment of all or a class of its debts;

(ii)   is insolvent or must at law be presumed by a court to be insolvent;

(iii)   has had an administrator or similar officer appointed in respect of it or its assets or has had any step preliminary to the appointment of an administrator or such officer taken;

(iv)   has had proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them; or

(v)   has suffered any event or similar event to those set out in paragraphs (i) to (iv) above which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.

9.2.  On termination of this Agreement:

(a)    all fees incurred by the Customer in respect of Services performed by Brandsec prior to the date of termination will become immediately due and payable, and

(b)    The minimum payable on early termination will be the annual total fees outlined in Schedule 3, the Proposal.

(c)    the Customer’s licence to use and access the Online Portal or any other system, tool, technology or know-how of Brandsec as supplied to the Customer in connection with the Services under this Agreement, is immediately terminated.

10.   General Provisions

10.1.  Brandsec will during the term of this Agreement and for 12 months afterwards maintain an IT liability or similar policy with an insurer authorised by the Australian Prudential Regulation Authority or its successor with a limit of liability of at least $5m.  Brandsec will provide a certificate of currency within 7 days of the Customer’s written request.

10.2.  Governing Law

This Agreement is governed by the laws of New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales in connection with matters concerning this Agreement.

10.3.  Entire Agreement

This Agreement and any documents referred to in, or executed in connection with this Agreement, contain the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications. Each party warrants that it has not entered into this Agreement relying on any representations made by or on behalf of the other, other than those expressly made in this Agreement.

10.4.  Assignment

Either party may assign their rights and transfer obligations under this Agreement as part of a solvent corporate restructure involving a Related Body Corporate by giving the other party thirty (30) days’ written notice.

10.5.  No waiver

No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.

10.6.  Survival

 Clauses 4, 5, 6, 8, 9, 10 and 11 shall survive the termination or expiry of this Agreement.

10.7.   Inconsistency with Registration Agreements

To the extent of any inconsistency between the terms of this Agreement and the terms of any Registration Agreement, the terms and conditions of this Agreement prevail.

10.8.   Definitions

In this Agreement:

Brandsec means Brandsec Pty Ltd (ABN 81636937678), an Australian company and Internet domain name reseller.

BrandShelter means BrandShelter Inc, a US Registered company File no 44272176F and a
Internet domain name registrar.

Client Proposal means the last commercial proposal provided to the client from Brandsec.

Confidential Information means, in respect of a party to this Agreement, any information in any form whatsoever (including oral, written, and electronic information and whether disclosed or created before, on or after the date of this document) all customer lists, trade secrets, marketing and technical information, ideas, concepts, know-how, technology, processes and knowledge and any other information relating to the business of that party which is marked or expressly stated to be confidential or which a reasonable person would, given the nature of the information, regarded as being confidential.

Corporate Domain Management Services means the Services (if any) described in the services description.

Customer means the person or organisation who orders a service through Brandsec.

DNS means the hierarchical naming system for computers, services, or any resource connected to the Internet or private networks.

Domain Portfolio means all corporate domain names licensed to the Customer which are managed by Brandsec on behalf of the Customer under the terms of this Agreement.

Effective Date has the meaning given to that term by Schedule 1. Where Schedule 1 is not completed, the date the Customer orders the service.

ICANN means the Internet Corporation for Assigned Names and Numbers.

Initial Term has the meaning given to that term by Schedule 1. Where Schedule 1 is not completed, the date the Customer orders the service and will run for a period of 12 months, including any additional products or services ordered.

Internet Services means the Services (if any) described in the services description.

Online Portal means the corporate domain management system provided by Brandsec to provide certain corporate domain management services by Brandsec to the Customer.

Premium Domains are domain names that are deemed ‘Premium’ by the Registry and as such these domains will incur additional charges.

Registrar means an entity authorised by the Registry and/or Regulator to register domain names for a particular domain space.

Registry means the entity authorised to operate the registry for a particular domain space.

Registration Agreement means the terms and conditions of a Registrar or Registry which governs the license of domain names to its registrants.

Relevant Domain Name means any domain name in the Customer’s Domain Portfolio.

Renewal Period has the meaning given to that term by Schedule 1. Where Schedule 1 is not completed, then the renewal period will be a further term of 12 months.

Reseller means the entity authorised by a Registrar to resell domain names to the Customer.

Service Schedule means a schedule (if any) which is attached to a service order, setting out specific services to be performed by Brandsec for the Customer under the terms of this Agreement and any additional terms and conditions which apply in respect of those services.

Services means services described (if any) in the services description and each Service Schedule.

UDRP means the “Uniform Domain-Name Dispute-Resolution Policy” published by ICANN and any substantially similar policy for the resolution of disputes concerning domain names published by any authority responsible for the administration and management of domain name policy under an agreement with ICANN.

UltraDNS means DNS services provided by Nuestar Inc.