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DOMAIN NAME SERVICES AGREEMENT
This Domain Name Registration and Administration Services Agreement (Agreement) between the Customer and
Web Access Pty Ltd, trading as WebAccess governs the Customer's use of the WebAccess domain name registration and
administration services (Services). By submitting a request for services, the Customer acknowledges that the
Customer has read, understood and agrees to be bound by all terms and conditions of this Agreement.
This Agreement as well as any additional rules and policies, together with all modifications thereto, constitutes the
complete and exclusive agreement between the Customer and WebAccess concerning the Customer's use of the Services, and
supersedes and governs all prior proposals, agreements, representations or other communications.
WebAccess reserves the right to modify this Agreement periodically and will use its best endeavours to notify the
Customer of any such changes as published on www.webaccess.com.au
Domain Name Registration, Administration, and Renewal Services
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1
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WebAccess is an accredited Registrar by the Australian Domain Name Regulator, .au Domain Administration Limited (auDA),
for domain names ending in .com.au, .net.au, .org.au, .asn.au, id.au (Australian Domain Names).
WebAccess is also currently an Australian Domain Name Reseller of ENETICA PTY. LIMITED (ENETICA) an accredited Registrar
by the Australian Domain Name Regulator, .au Domain Administration Limited (auDA), for domain names
ending in .com.au, .net.au, .org.au, .asn.au, id.au (Australian Domain Names).
WebAccess will only remain an Australian Domain Name Reseller of ENETICA until such time that all domains previously managed by
ENETICA on our Customers behalf have been transferred to WebAccess directly as per auDA policy, any new .au Domain registrations
or renewals will be completed directly by WebAccess and not processed through ENETICA unless technical or other reasons
make this not feasible.
Australian Domain Names registered, renewed, transferred or managed through WebAccess are subject to:
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2
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WebAccess also provides domain name registrations, renewals, transfers and management for generic top-level
domain names ending in .com, .net, .org, .info and .biz (gTLDs). WebAccess processes gTLDs through
TUCOWS INC. (TUCOWS), an Internet Corporation for Assigned Names and Numbers (ICANN) accredited
registrar. All gTLDs registered, renewed, transferred or managed through WebAccess are subject to:
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3
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3. Subject to the terms and conditions as set out herein, WebAccess will accept applications to register and
renew Australian Domain Names and gTLDs (collectively domain names) in Roman-alphabet languages, letters
A through Z, numbers 0 through 9 and hyphens. WebAccess will not accept applications to register and renew
domain names that begin or end with a hyphen.
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4
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Upon accepting the Customer's application to register or renew a gTLD , WebAccess essentially acts as the
Customer's sponsor for that application. All gTLD applications will be processed through TUCOWS. The
registration and renewal applications WebAccess process are not effective until the gTLD registration or
renewal information the Customer provides WebAccess is delivered to the registry administrator for the .com,
.net, .org, .biz or .info gTLDs, as applicable, and the registry administrator puts into effect the Customer's
gTLD registration or renewal.
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5
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The Customer acknowledges and agrees that WebAccess does not guarantee that the Customer will be able to
register or renew a desired domain name. Even if WHOIS or other enquiry indicates that domain name is
available, the Customer acknowledges that WebAccess cannot know with certainty whether or not the domain name
which the Customer is seeking to register is simultaneously being sought by a third party, or whether there
are any inaccuracies or errors in the domain name registration or renewal process or related databases,
including the various WHOIS databases.
The Customer further acknowledges and agrees that WebAccess may, at its sole discretion, elect to accept or
reject the Customer's application for registration or renewal for any reason, including, but not limited to,
requests for registration or renewal of a prohibited domain name or domain name which a third party has any
proprietary rights.
The Customer also acknowledges and agrees that, although WebAccess will use all reasonable endeavours,
WebAccess is not liable or responsible in any way for any errors, omissions or any other actions by any
registry administrator arising out of or related to the Customer's application for and registration of,
renewal of, or failure to register or renew a particular domain name.
The Customer additionally agrees to indemnify, defend and hold harmless WebAccess and its 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 related to, the Customer's application for and
registration of, renewal of, or failure to register or renew, a particular domain name.
The Customer agrees that WebAccess maximum aggregate liability in respect of this clause shall not exceed the
total amount paid by the Customer for the services, and in no event be greater than $500.00.
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6
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By submitting a gTLD registration application to WebAccess, the Customer acknowledges and agrees that the
Customer is a customer of WebAccess for purposes of the Services. The Customer further acknowledges that there
is no customer relationship between the Customer and TUCOWS created hereunder. The Customer agrees that upon
termination of WebAccess relationship with TUCOWS, WebAccess may, in its sole discretion, assign the Customer's
domain name registration to a new registrar at no additional charge to the Customer and that this Agreement
will continue in full force and effect between the Customer and any new registrar.
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7
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By submitting a Australian Domain Name registration application to WebAccess, the Customer acknowledges and
agrees that the Customer is a customer of WebAccess for purposes of the Services. The Customer further
acknowledges that there is no customer relationship between the Customer and ENETICA created hereunder. The
Customer agrees that upon termination of WebAccess relationship with ENETICA, WebAccess may, in its sole
discretion, assign the Customer's domain name registration to a new registrar at no additional charge to the
Customer and that this Agreement will continue in full force and effect between the Customer and any new
registrar.
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9
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By applying to register a domain name, or by asking WebAccess to maintain or renew a domain name registration,
the Customer hereby represents and warrants to WebAccess that:
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(a)
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all statements made by the Customer in connection with such application for registration, maintenance,
or renewal are complete and accurate;
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(b)
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to the Customer's knowledge, the registration of the domain name will not infringe upon or otherwise
violate the rights of any third party (including any registered or unregistered trade mark, domain
name, business name or any other name in which a third party has proprietary rights);
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(c)
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the Customer is not registering the domain name for an unlawful purpose; and
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(d)
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the Customer will not knowingly use the domain name in violation of any applicable laws or regulations.
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The Customer agrees and acknowledges that it is the Customer's responsibility to determine whether its domain
name registration infringes or violates someone else's rights including, but not limited to, trade mark rights,
and whether any foreign language translations of its domain name, infringe or violate someone else's rights.
The Customer acknowledges that the successful registration of a domain name does not give the Customer any
proprietary rights in any word composing the domain name.
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The Customer is the legal registrant of the domain name.
WebAccess will address and send emails to the person notified by the Customer as the Customer's contact person
at the email address supplied by the Customer. The Customer is solely responsible for ensuring that its
Customer's contact details are current and correct, that its email services is operational and that it checks
its emails regularly.
The Customer must inform WebAccess of any changes to its contact details by updating it in the Client Control
Panel provided to all customers via secure SSL login on our web site within 30 days of any change.
If WebAccess sends an email to the Customer's current email address as listed in the Customer's contact details,
the Customer is deemed to have received that email and WebAccess is not obliged to take any further action to
confirm that the Customer has received, opened and/or read the email unless the Customer promptly notifies
WebAccess that the email was not delivered to its email address.
If WebAccess receives an automated email non-delivery notification indicating that the Customer has not
received the email that WebAccess has sent the Customer regarding the Services, WebAccess will use reasonable
endeavours to attempt to contact the Customer using the other contact details the Customer submitted, including
non-electronic means, but does not guarantee that WebAccess will be able to contact the Customer.
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The first time the Customer applies to use the Services, the Customer will receive a domain name password. The
Customer must safeguard the domain name password from any unauthorised use. The Customer acknowledges and
agrees that in no event will WebAccess be liable for the unauthorised use or misuse of the Customer's domain
name password.
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12
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As consideration for the Services, the Customer agrees to pay WebAccess, upon submission of the Customer's
domain name application or renewal application, to WebAccess, the then-current fees set forth in the WebAccess
price schedule for such services which is located at http://www.webaccess.com.au/
All fees are non-refundable, in whole or in part, even if the Customer's domain name registration is suspended,
cancelled or transferred prior to the end of the Customer's then-current registration term. WebAccess reserves
the right to change fees, surcharges, and renewal fees or to institute new fees at any time, for any reason,
at its sole discretion. WebAccess will use its best endeavours to notify the Customer of any such changes.
The Customer's Australian Domain Name application or renewal application will not be processed by WebAccess
until WebAccess receives payment of the registration or renewal fee, or reasonable assurance of payment of the
registration or renewal fee from some other entity as determined by WebAccess in its sole discretion.
The Customer's gTLD application or renewal application will not be processed by WebAccess until WebAccess
receives actual payment of the registration or renewal fee, or reasonable assurance of payment of the
registration or renewal fee from some other entity as determined by WebAccess in its sole discretion.
In the event of a charge back by a credit card company (or similar action by another payment provider allowed
by us) or other non-payment by the Customer in connection with the Customer's payment of the registration or
renewal fee, the Customer acknowledges and agrees that the registration shall be transferred to WebAccess as
the entity that has paid the registration or renewal fee for that registration to the registry, and that
WebAccess reserve all rights regarding such domain name including, without limitation, the right to make the
domain name available to other parties for purchase. WebAccess will reinstate any such registration solely at
its discretion, and subject to its receipt of the applicable registration or renewal fee and then-current
reinstatement fee.
The administrative contact for a domain name will be notified by WebAccess at least 30 days before a renewal
fee is due. A domain name will not be renewed unless WebAccess receives a request for renewal and full payment
for renewal from the Customer. At any time before the expiration of the Customer's gTLD registration, the
Customer may renew the Customer's gTLD by contacting WebAccess. Within 90 days before the expiration of the
Customer's Australian Domain Name registration, the Customer may renew the Customer's Australian Domain Name
by contacting WebAccess.
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The Customer acknowledges that as the Internet, domain name system and the practice of registering and
administering domain names are modified from time to time by third parties, WebAccess may modify this
Agreement, as well as any additional rules or policies that are or may be published by WebAccess, as necessary
to comply with any ICANN-accepted policy, or with any other agreements that WebAccess is currently bound by or
will be bound by in the future, as well as to adjust to changing business circumstances. The Customer's
continued use of any domain name registered through WebAccess shall constitute the Customer's acceptance of
this Agreement as well as additional rules or policies that are or may be published by WebAccess, each with
the new modifications. If the Customer does not agree to any of such changes, the Customer may request that
the Customer's domain name registration be cancelled or transferred to a different domain name registrar. The
Customer acknowledges and agrees that such cancellation or request for transfer will be the Customer's
exclusive remedy and WebAccess sole liability if the Customer do not wish to abide by any changes to this
Agreement or any additional rules or policies that are or may be published by WebAccess.
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14
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The Customer hereby acknowledges and agrees that, in connection with the Customer's use of certain Services,
the Customer is required to provide certain information and to update promptly this information as needed to
keep it current, complete and accurate. Except as set forth below, all other information which WebAccess may
request from the Customer in connection with domain name registration, administration, and renewal services is
voluntary.
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14.1
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The Customer is obligated to provide and keep current in connection with its use of WebAccess domain name
registration, administration, and renewal services the following information:
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(i)
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its full name (or the name of the authorised person for contact purposes, if registration is for an
organisation, corporation or association), postal address, email address, voice telephone number and
fax number, if available (or if different, that of the domain name holder);
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(ii)
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the domain name being registered; and
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(iii)
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the name, postal address, email address, voice telephone number, and where available, fax number for
the administrative contact, technical contact and billing contact for the domain name registration.
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WebAccess reserves the right not to complete the registration until WebAccess receives from the Customer this information in its entirety and advises that some of this information provided will be made available on publicly accessible domain name WHOIS lookup.
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14.2
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The Customer acknowledges and agrees that the type of information the Customer is required to provide may
change. If the Customer does not wish to provide any new required information, WebAccess reserves the right
to cancel or not renew the Customer's registration.
If the Customer's ClientAccess account information is correct and up to date but WebAccess is satisfied that the relevant domain name WHOIS data is no longer up to date then the WHOIS data may be updated using the data from the Customer's ClientAccess account, as necessary to meet relevant namespace policies.
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In addition to the information the Customer provide (User Information), WebAccess may, subject to the
Privacy Act 1988 (Cth) maintain records relating to any domain name application received by WebAccess,
as well as any domain name registered through, administered, or renewed by WebAccess. WebAccess also maintains
records relating to the Services that WebAccess provides to the Customer. These records may include, but are
not limited to:
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(i)
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the original creation date of a domain name registration, renewal, or request for service;
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(ii)
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the submission date and time of a registration or renewal application to WebAccess and by WebAccess to
the proper registry;
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(iii)
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communications (electronic or paper form) constituting submissions, forwarding, modifications, or
terminations of service and related correspondence between the Customer and WebAccess;
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(iv)
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records of the Customer's account, including dates and amounts of all payments and refunds;
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(v)
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the IP addresses of the primary nameserver and any secondary nameservers for the domain name;
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(vi)
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the corresponding names of those nameservers;
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(vii)
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the name, postal address, email address, voice telephone number, and where available, fax number of
the zone contact for a domain name;
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(viii)
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the expiration date of a domain name registration; and
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(ix)
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information regarding all other activity between the Customer and WebAccess regarding the Customer's
use of the Services (collectively Other Information).
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In respect to Australian Domain Names, the Customer agrees that WebAccess may provide the User Information and
the Other Information to the Australian Registry Operator to process the Customer's registration or renewal
application.
In respect to .gTLDs, the Customer agrees that WebAccess may provide the User Information and the Other
Information to TUCOWS to process the Customer's registration or renewal application.
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In the event that:
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(i)
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in applying for the registration of a domain name the Customer is providing information about a third
party; or
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(ii)
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the Customer licenses a domain name registered in the Customer's name to a third party,
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the Customer hereby represents and warrants that the Customer has:
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(a)
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provided notice to that third party of the disclosure and use of that party's information as set forth
in this Agreement, and
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(b)
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that the Customer has obtained that third party's express consent to the disclosure and use of that
party's information as set forth in this Agreement.
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17
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The Customer acknowledges and agrees that wilfully providing inaccurate or unreliable information or wilfully
failing to update information promptly will constitute a material breach of this Agreement that will be
sufficient basis for cancellation of the Customer's domain name registration. The Customer further acknowledges
and agrees that the Customer's failure to respond for over 15 calendar days to inquiries by WebAccess
concerning the accuracy of contact details associated with the Customer's domain name registration shall
constitute a material breach of this Agreement and will be sufficient basis for cancellation of the Customer's
domain name registration.
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18
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The Customer acknowledges and agrees that, subject to the Privacy Act 1988 (Cth), WebAccess may make
available information the Customer provides or that WebAccess otherwise maintains to such public or private
third parties as applicable laws require or permit. WebAccess may, subject to the Privacy Act 1988
(Cth), disclose personal information or information regarding the Customer's use of the Services or web sites
accessible through WebAccess Services, if, in its sole discretion, WebAccess believe that it is reasonable to
do so to satisfy laws, regulations, or governmental or legal requests for such information; to disclose
information that is necessary to identify, contact, or bring legal action against someone who may be violating
WebAccess; to operate the Services properly; or to protect WebAccess and WebAccess members.
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19
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The Customer hereby consents to any and all such disclosures and use of, and guidelines, limits and restrictions
on disclosure or use of, information provided by the Customer in connection with the registration of a domain
name or use of any Services (including any updates to such information), whether during or after the term of
the Customer's registration of a domain name or other services. The Customer further acknowledges that WebAccess
may use certain of the information provided by WebAccess regarding the Customer's domain name registration or
renewal application in a manner consistent with WebAccess terms of usage and user agreement. WebAccess will
only provide that information necessary to process the Customer's registration. The Customer hereby irrevocably
waives any and all claims and causes of action the Customer may have arising from such disclosure or use of
information provided by the Customer by WebAccess.
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20
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WebAccess will not process data about any identified or identifiable natural person that WebAccess obtain from
the Customer in a way incompatible with the purposes and other limitations which WebAccess describe in this
Agreement.
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21
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WebAccess will take reasonable precautions to protect the information it obtains from the Customer from our
loss, misuse, unauthorised access or disclosure or use, or alteration or destruction, of that information.
WebAccess will have no liability to the Customer or any third party to the extent such reasonable precautions
are taken.
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22
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Communications with WebAccess are not private and may be published either in their entirety or in edited form
at any time, at the sole discretion of WebAccess.
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23
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The Customer acknowledges and agrees that, subject to the Copyright Act 1968 (Cth), WebAccess owns all
database, compilation, collective and similar rights, title and interests worldwide in WebAccess proprietary
information databases and all information and derivative works generated from those databases.
Additionally, the Customer hereby grants to WebAccess, subject to the Copyright Act 1968 (Cth), a
non-exclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in its business,
however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative
works from or otherwise use without restriction (other than as set out in this Agreement) the following
information:
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(a)
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the original creation date of a domain name registration;
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(b)
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the expiration date of a domain name registration;
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(c)
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the name, postal address, email address, voice telephone number, and where available fax number of the
technical contact, administrative contact, zone contact and billing contact for a domain name registration;
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(d)
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any remarks concerning a registered domain name that appear or should appear in a WHOIS or similar
database; and
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(e)
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any other information WebAccess generate or obtain in connection with the provision of the Services.
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WebAccess does not have any ownership interest in the Customer's specific personal registration information
or other information other than its rights in its domain name database, as set out in this Agreement.
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The Customer agrees that, if the Customer is acting as an agent for someone else, WebAccess is entitled to
rely on section 129 of the Corporations Act 2001 (Cth) to assume that the Customer has been duly
appointed; and that the Customer has authority to exercise the powers and perform the duties customarily
exercised or performed by that kind of officer or agent of a similar company.
The Customer accepts liability for harm caused by wrongful use of the Services.
The Customer agrees that if the Customer licenses the use of a domain name registered in the Customer's name
to a third party, the Customer nonetheless remains the domain name holder of record, and remain responsible
for all obligations under this Agreement, including but not limited to payment obligations, and providing (and
updating, as necessary) both the Customer's own full contact information, and accurate technical, administrative,
billing and zone contact information adequate to facilitate timely resolution of any problems that arise in
connection with the domain name and domain name registration.
As further required by ICANN, the Customer shall accept liability for harm caused by wrongful use of the domain
name, unless the Customer promptly discloses the identity of the licensee to a party providing the Customer
with reasonable evidence of actionable harm.
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WebAccess delivery of the Services depends upon its computer system and the computer system of TUCOWS, the
.au registry operator, Ausregistry, and the gTLD registry, Verisign, all of which are responsive to the demands
of the domain name registration process. Occasionally, WebAccess computer system or the computer systems of
TUCOWS, Ausregistry or Verisign are subjected to exceptional volumes of incoming domain name registration
requests, electronic mail messages, and/or WHOIS queries that result in significant degradation of WebAccess,
TUCOWS, Ausregistry's, or Verisign's system processing and response time. Regardless of the reason, in those
instances when there is system performance degradation as the result of an extremely large volume of incoming
electronic messages, WebAccess reserves the right, in its sole discretion, to filter or block electronic
messages originating from the identified sources of the high-volume traffic. WebAccess will selectively
restore service after system performance returns to normal limits, provided that such restoration does not
result in an adverse impact on the system. WebAccess further reserves the right to permanently filter or block
repeated sources of high volumes of electronic traffic.
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26
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The Customer agrees that WebAccess will not be liable, under any circumstances, for any:
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(a)
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suspension, loss, or modification of the Customer's domain name registration;
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(b)
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use of the Customer's domain name registration;
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(c)
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interruption of business;
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(d)
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access delays or access interruptions to this site or the web site(s) accessed by the domain name
registered in the Customer's name;
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(e)
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data non-delivery, misdelivery, corruption, destruction or other modification;
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(f)
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events beyond WebAccess reasonable control;
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(g)
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the processing of the Customer's domain name application or other service application; or
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(h)
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application of any relevant dispute policy or any other ICANN (or similar governmental or successor
organisation) adopted policies.
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WebAccess also will not be liable for any indirect, special, incidental, exemplary, multiple or consequential
damages of any kind (including lost profits) regardless of the form of action whether in contract, tort
(including negligence), or otherwise, even if WebAccess has been advised of the possibility of such damages.
WebAccess maximum aggregate liability under this clause shall not exceed the total amount paid by the Customer
for the services and shall in no event be greater than $500.00.
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27
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The Customer agrees to defend, indemnify and hold harmless WebAccess for any loss, damages or costs, including
reasonable attorneys' fees, resulting from any third-party claim, action, or demand related to (i) the Customer's
use of the Services, including, but not limited to, the Customer's application for registration, registration,
or renewal of any domain name registered in the Customer's name, and (ii) the Customer's use of any domain name
registered in the Customer's name. This indemnification is in addition to any indemnification required under
the UDRP or any similar policy.
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28
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The Customer represents that, to the best of its knowledge and belief, neither the registration of the domain
name the Customer has applied for nor the manner in which it is intended to be or is directly or indirectly
used infringes the legal rights of a third party, including any trademark rights anywhere in the world.
The Customer further represents and warrants that all information provided by the Customer in connection with
the Customer's use of the services is accurate and current.
The services are provided to the Customer "as is." WebAccess makes no representations or warranties of any kind
whatsoever, express or implied, in connection with this agreement or the services, including but not limited
to warranties of merchantability or fitness for a particular purpose, unless such representations and warranties
are not legally excludable.
Without any limitation to the above, WebAccess makes no representations or warranties of any kind whatsoever
that registration or use of a domain name under this agreement will immunise the Customer either from
challenges to the Customer's domain name registration, or from suspension, cancellation or transfer of the
domain name registered to the Customer.
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29
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The Customer acknowledges and agrees that WebAccess may suspend, cancel, transfer or modify the Customer's
use of the Services at any time, for any reason, in WebAccess sole discretion.
The Customer also acknowledges and agrees that WebAccess may suspend, cancel, transfer or modify the Customer's
domain name registration if it:
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(a)
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materially breaches this Agreement (including any applicable additional rule or policy) and does not
cure such breach within 5 calendar days of notice by WebAccess;
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(b)
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uses the domain name registered to it to send unsolicited commercial advertisements in contradiction
to either applicable laws or customary acceptable usage policies of the Internet; or
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(c)
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uses its domain name in connection with unlawful activity.
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The Customer further acknowledges and agrees that its domain name registration is subject to suspension,
cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to the
Customer's domain name registration, including, but not limited to:
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(i)
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the UDRP;
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(ii)
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the AUDRP
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(iii)
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any ICANN-adopted policy;
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(iv)
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any auDA published policy;
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(v)
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any registrar or registry administrator procedures; or
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(vi)
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any other ccTLD registry administrator procedures.
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The Customer also agrees that WebAccess shall have the right in its sole discretion to suspend, cancel,
transfer or otherwise modify the Customer's domain name registration at such time as WebAccess receives:
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(i)
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a properly authenticated notification from a court of competent jurisdiction; or
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(ii)
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an arbitration award requiring the suspension, cancellation, transfer or modification of the
Customer's domain name registration.
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30
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This Agreement is governed by the law applicable in the State of Queensland. The Customer and WebAccess
agree to irrevocably and unconditionally submit to the non exclusive jurisdiction of the courts of the State
of Queensland.
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31
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The Customer agrees that, unless other instructions are posted on WebAccess web site, any notices required
to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by
certified mail return receipt requested, in accordance with the most current contact information the Customer
has provided to WebAccess and the contact information for WebAccess posted on WebAccess web site. All notices
shall be effective upon receipt, except that email and fax notices shall be effective upon transmission.
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32
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Words or expressions used in this clause 28 which are defined in the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) or, if not so defined, then which are defined in the Trade Practices Act 1974
(Cth), have the same meaning in this clause.
For the purposes of this Agreement where the expression GST inclusive is used in relation to an amount
payable or other consideration to be provided for a supply under this Agreement, the amount or consideration
will not be increased on account of any GST payable on that supply.
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless
specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
Despite any other provision in this Agreement, if WebAccess makes a supply under or in connection with this
Agreement on which GST is imposed (not being a supply the consideration for which is specifically described
in this Agreement as GST inclusive):
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(a)
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the consideration payable or to be provided for that supply under this Agreement but for the application
of this clause (GST exclusive consideration) is increased by, and the Customer must also pay to
WebAccess, an amount equal to the GST payable by the WebAccess on that supply; and
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(b)
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the amount by which the GST exclusive consideration is increased must be paid to WebAccess by the
Customer without set off, deduction or requirement for demand, at the same time as the GST exclusive
consideration is payable or to be provided.
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If a payment to the Customer under this Agreement is a reimbursement or indemnification, calculated by reference
to a loss, cost or expense incurred by the Customer, then the payment will be reduced by the amount of any
input tax credit to which the Customer are entitled for that loss, cost or expense and vice versa.
WebAccess, having regard to Part VB of the Trade Practices Act 1974 (Cth), may refund to the Customer
part or all of any amount paid by the Customer under this Agreement during the New Tax System transition
period, the amount of the refund to be determined in the sole discretion of WebAccess.
WebAccess will provide a tax invoice.
If the Customer objects to the amount of any refund or adjustment determined by WebAccess under this clause,
the Customer and WebAccess will negotiate in good faith in an attempt to agree on the amount of the refund or
adjustment. If the Customer and WebAccess cannot agree on the amount of the refund or adjustment, then the
refund or adjustment must be determined by a person:
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(a)
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who has at least 10 years experience as a lawyer;
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(b)
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who is appointed by the parties but if the parties cannot agree who to appoint within 28 days after
one of them notifies the other that it requires a person to be appointed for the purposes of this
clause, then that person is to be nominated at the request of either of the parties by the President
of the Queensland Law Society or by the President's nominee;
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(c)
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who the Customer and WebAccess must instruct to give a written decision with reasons;
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(d)
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who acts as an expert and not as an arbitrator;
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|
(e)
|
whose decision except in the case of obvious error is final and binding; and
|
|
(f)
|
whose cost the Customer and WebAccess must bear equally.
|
Pending that person's determination, the parties must continue to comply with this Agreement, including,
without limitation, making all payments provided for under this Agreement.
Any information given to the expert by WebAccess including, without limitation, confidential information,
is for the use of the expert only and under no circumstances (except if required by law) is the information
to be disclosed.
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33
|
If the Customer is entitled to obtain an Australian Business Number (ABN) under the A New Tax System
(Australian Business Number) Act 1999 (Cth) the Customer:
|
(a)
|
warrants that it has an ABN and has provided the applicable registration number to WebAccess; and
|
|
(b)
|
must:
|
(i)
|
continue to have an ABN during the term of this Agreement;
|
|
(ii)
|
quote its ABN to WebAccess;
|
|
(iii)
|
advise WebAccess if its ABN changes or is cancelled; and
|
|
(iv)
|
indemnify WebAccess for any loss or damage suffered by WebAccess or any tax, charge, fine,
penalty or other impost which WebAccess incurs or becomes liable to pay, as a result of its
breach of any of the warranties contained in this clause.
|
|
|
|
34
|
Increased costs
|
(a)
|
To the extent that any supply by WebAccess under this Agreement is input taxed (input tax supply),
WebAccess is entitled to increase:
|
(i)
|
any amount expressed as payable; and
|
|
(ii)
|
anything else to be provided,
|
by the Customer for that input tax supply otherwise under or in connection with this agreement
(consideration for the input tax supply) by:
|
(iii)
|
such amount as WebAccess determines in its discretion is reasonably necessary for WebAccess
to recover from the Customer (in addition to the consideration for the input tax supply) the
amount of the input tax credits in relation to acquisitions made by WebAccess and used by it
wholly or partly in making the input tax supply, to which WebAccess would have been entitled
had the input tax supply been a taxable supply by WebAccess; or
|
|
(iv)
|
such lesser amount as WebAccess determines.
|
|
|
(b)
|
WebAccess may make a determination under clause 30(a)(iii) above or 30(a)(iv) above by notice in
writing to the Customer (WebAccess determination) and each WebAccess determination will be
conclusive evidence of the making of the determination. The amount specified in any WebAccess
determination must be paid by the Customer immediately on receipt of the WebAccess determination
without objection and without any set off or deduction of any other amount payable under this
Agreement.
|
|
|
35
|
Waiver of any provision of or right under this Agreement:
|
(a)
|
must be in writing signed by the party entitled to the benefit of that provision or right; and
|
|
(b)
|
is effective only to the extent set out in any written waiver.
|
|
|
36
|
In this agreement, except where the context otherwise requires:
|
(a)
|
the singular includes the plural and vice versa, and a gender includes other genders;
|
|
(b)
|
another grammatical form of a defined word or expression has a corresponding meaning;
|
|
(c)
|
a reference to a document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time;
|
|
(d)
|
a reference to $ is to Australian currency;
|
|
(e)
|
a reference to time is to Australian eastern standard time;
|
|
(f)
|
a reference to a party is to a party to this agreement, and a reference to a party to a document
includes the party's executors, administrators, successors and permitted assigns and substitutes;
|
|
(g)
|
a reference to a person includes a natural person, partnership, body corporate, association,
governmental or local authority or agency or other entity;
|
|
(h)
|
a reference to a statute, ordinance, code or other law includes regulations and other instruments
under it and consolidations, amendments, re enactments or replacements of any of them;
|
|
(i)
|
a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
|
|
(j)
|
the meaning of general words is not limited by specific examples introduced by including, for
example or similar expressions;
|
|
(k)
|
any agreement, representation, warranty or indemnity by two or more parties (including where two or
more persons are included in the same defined term) binds them jointly and severally;
|
|
(l)
|
any agreement, representation, warranty or indemnity in favour of two or more parties (including
where two or more persons are included in the same defined term) is for the benefit of them
jointly and severally;
|
|
(m)
|
a rule of construction does not apply to the disadvantage of a party because the party was responsible
for the preparation of this agreement or any part of it; and
|
|
(n)
|
if a day on or by which an obligation must be performed or an event must occur is not a business day,
the obligation must be performed or the event must occur on or by the next business day.
|
If the Customer has any questions relating to this Agreement, they may contact WebAccess via
http://www.webaccess.com.au/feedback.html
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|
