Date: January 2014
These are the standard terms and conditions (Agreement) of supply of the DPML Service offered from time to time by Melbourne IT Limited (ACN 073 716 793)(Melbourne IT, our, we or us).
Please read this Agreement carefully. It is a condition of your use of the DPML Service that you (you and your) comply with these terms and conditions.
This Agreement is made effective as of the date of the provision of the DPML Service, and is to be read in conjunction with Melbourne IT’s New gTLD Registration Agreement, which you acknowledge you have read, understood and agree to be bound by.
Application Content means content regarding DPML Blocks provided by registrars in accordance with the Donuts Policies, including without limitation content regarding legally protected marks submitted by mark holders and their agents for the purpose of receiving the benefits of the DPML Service.
AUP means the Registry’s policy regarding acceptable use of its services, as may be amended from time to time, located at the Registry Website.
Available Domain Names means a Domain Name that is not already registered or a Reserved Domain Name.
Available SLDs are SLDs that have not been blocked, reserved, registered, awarded, or otherwise previously allocated by a Registry prior to that receipt of an Application for a DPML Block.
Domain Name means domain name in and maintained by a Registry’s database consisting of at least the SLD and TLD together, separated by a dot (e.g., “second.top”).
Donuts means Donuts Inc. and its affiliates operating the TLDs identified here.
Donuts Policies means the rules, protocols, policies or procedures adopted and/or amended from time to time by Donuts (including without limitation any annexes and any and all interpretative guidelines published by Donuts in relation thereto, as may be amended from time to time).
Donuts Website means http://www.donuts.co or any other URL directed from such website.
DPML or Domains Protected Marks List means the service that blocks certain SLDs from Registration across Registries pursuant to the Terms and Conditions.
DPML Applicant means a natural person, company, or organization submitting a DPML Application.
DPML Application means a complete, technically correct request for a DPML Block made with Donuts, which complies with all the respective requirements provided for in these Terms and Conditions, submitted by a DPML Registrar.
DPML Block means the block, under these Terms and Conditions, preventing the Registration of a SLD across all TLDs then owned and operated by Donuts (e.g., a DPML Block for “second” will generally block that SLD from being registered in a Domain Name in participating TLDs, such as “second.top”).
DPML Block Request is a request submitted by a DPML Registrar on behalf of an Applicant who desires to block from registration names contained within the SMD File.
DPML Registrar means an entity authorized by Donuts to sell DPML Blocks on its behalf. For the purposes of this Agreement, “DPML Registrar” means Melbourne IT.
ICANN means the Internet Corporation for Assigned Names and Numbers.
ICANN Requirements means all applicable ICANN policies, including the Registry Agreement.
IDN means Internationalized Domain Name.
Melbourne IT Website means the website located at https://melbourneit.au/legals/.
Override means, consistent with these Terms and Conditions, the Registration of a Domain Name where a DPML Block currently exists by a Registrant holding an SMD File that contains the SLD String that exactly matches the SLD String in the applied for Domain Name.
Premium Name is a Domain Name designated by a Registry, in its sole discretion, for non-standard pricing.
Registered Name means a Domain Name that has been registered in and is maintained by a Registry.
Registrant means the Registered Name holder.
Registration means a Domain Name and its associated information (e.g., WHOIS data) submitted by a registrar that has been accepted by a Registry.
Registry means a TLD domain name registry owned and operated by Donuts.
Reserved Domain Name means a Domain Name that has been set aside by a Registry pursuant to the terms and conditions of such Registry.
RFC means the Request For Comment specifications located at http://www.ietf.org.
Second Level Domain or SLD means second level domain, representing the String to the left of the dot preceding the TLD (e.g., in the Domain Name “second.top”, “second” is the SLD).
SMD File is the file issued by the TMCH proving that the TMCH application data for one or more TMCH eligible terms (typically a trademark) have been successfully validated and entered into the TMCH database.
Shared Registration System or SRS means the system of computers, networking equipment, data stores, software services and network connectivity that allows Registrars to provision objects for the purpose of applying for, registering, modifying and maintaining Registrations and allows DPML Registrars to provision objects to apply for, register, modify and maintain DPML Blocks.
String means a series of alphanumeric characters, including dashes when not preceding or finishing the alphanumeric character set. For purposes of clarity only, this includes Punycode conversions of IDNs.
Sunrise means the period of time noted by a Registry’s terms and conditions.
Sunrise Registration means a Domain Name Registration resulting from an approved Sunrise Application.
TMCH means the Trademark Clearinghouse, which is the mechanism made available for the validation and database management of rights protected terms, typically trademarks.
TMCH Guidelines means the then effective guidelines found at http://www.trademark-clearinghouse.com.
TLD means top level domain, representing the String to the right of the dot (e.g., in the Domain Name “second.top”, “.top” is the TLD).
UDRP means ICANN’s Uniform Dispute Resolution Process, as applied and amended.
URS means ICANN’s Uniform Rapid Suspension System.
WHOIS means the publicly available and transaction oriented query/response protocol specified by RFC 3912 used to provide identifying information regarding Registrants on the Internet.
2.1 You agree that Melbourne IT will supply the Services to you on the terms set out in this Agreement.
2.2 Melbourne IT may vary these terms, or the terms of the operation of the Service, at any time by general notice on a page at the Melbourne IT Website. Where we vary these terms in order to pass through any amendments made by Donuts or ICANN, those changes will become effective immediately. Any changes made solely by us will become effective 30 days after publication of the notice.
2.3 If you use the DPML Service after any change has come into effect (in accordance with clause 2.2), your use will constitute acceptance of the amended terms. If you do not agree to such changes, do not use (or continue to use) the DPML Service following the effective date of the revision. We may also notify you of any changes via your provided details information, including your email address.
2.4 These terms constitute the agreement in its entirety in respect of the DPML Service and supersede prior agreements.
3.1 The DPML Service is a service provided by Donuts in conjunction with the TLDs it has applied for under ICANN’s new gTLD program and been awarded (as identified here) and enables you to submit a DPML Block which prevents the registration of certain SLDs in all TLDs owned and operated by Donuts (the DPML Service).
3.2 The DPML Service utilizes the TMCH and SMD Files generated for validated trademarks in the TMCH to determine which second-level domain names you are able to apply for under this Agreement.
3.3 Our ability 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).
3.4 Eligible Applicants
Each DPML Application must include one or more SMD Files corresponding to the applied for SLD and must meet the qualifications specified by ICANN and detailed in the TMCH Guidelines, as they may change from time to time. DPML Blocks may only be used on SLDs that correspond to the String(s) present in the DPML Applicant’s SMD File. DPML Blocks are available initially for a five (5) to ten (10) year period and may be renewed in yearly increments for up to a maximum DPML Block period of ten (10) years.
3.5 Submitting DPML Applications
Each SLD that you request to be blocked will incur a separate DPML Block fee payable by you to Melbourne IT (see clause 4 below). For each DPML Application you submit, in addition to complying with this Agreement and the Donuts Policies, you must provide the following:
3.6 DPML Block Creation
A DPML Block of a String will only be created or modified insofar and to the extent that:
3.7 DPML Block Requirements
DPML Applications will not be accepted unless the applied for SLD meets applicable requirements as defined in RFC 1035, RFC 1123, and RFC 2181, including the following technical and syntax requirements:
3.8 Authentication of DPML Block Requests
DPML Blocks will not be processed until Melbourne IT has validated the SMD File and received the applicable fee from you.
3.9 DPML Block Exceptions
DPML Blocks will not apply to (a) Reserved Domain Names, though the SLD may be blocked in some TLDs where the SLD is not a Reserved Domain Name; or (b) Registered Names.
3.10 DPML Block Behaviour
Donuts may (but is not obligated to) revoke all or part of a DPML Block if the underlying TMCH entry for the SMD File is no longer valid. Melbourne IT has no control over the decision of the Donuts in this respect.
An applicant for a Registration with a String in its SMD File that exactly matches the SLD under DPML Block may Override the existing DPML Block and purchase a Registration for a Domain Name containing that SLD.
3.12 DPML Block Period
Each DPML Application or DPML Block renewal incurs a non-refundable one-time fee based on the requested duration of the DPML Block, which must be between five (5) and ten (10) years. Unless otherwise terminated or subject to an Override, DPML Blocks will expire on the same day of the month within which the DPML Block was created unless it was created on February 29, in which asset it will expire on March 1. DPML Blocks may be renewed in annual increments from one (1) to ten (10) years with a maximum DPML Block period of ten (10) years.
4.1 You agree to pay any and all prices and fees specified on the Melbourne IT Website relating to the Services requested. We will not process any requests or otherwise until the relevant fee(s) have been paid and cleared, and we will not be responsible for any failure in this respect (including without limitation where such failure results in failure to block, non-renewal or termination of the applicable DPML Block concerned).
4.2 We will not accept a DPML Block, and will not renew a DPML Block at the end of the applicable term, unless we have received payment in full from you for the applicable fees. DPML Blocks, or names that result in a DPML Blocks, will only expire, be terminated or otherwise released in accordance with Donuts Policies and ICANN Requirements.
4.3 We expressly reserve the right to change or modify our pricing and fees, and any changes will become effective immediately once published on the Melbourne IT Website.
4.4 All prices and fees are non-refundable unless otherwise expressly stated.
Donuts may reserve at any time certain SLDs from DPML Block, including, without limitation, SLDs:
6.1 Representations and Warranties
You acknowledge and agree:
6.2 Donuts’ Rights regarding DPML Applications
As a DPML Applicant or DPML Block holder (as the case may be), you represent and warrant you have acknowledged and accepted, that Donuts shall be entitled but not obliged to reject a DPML Block, or to delete, revoke, cancel or transfer a DPML Block:
In submitting a DPML Application, you agree that both Melbourne IT and Donuts and each party’s agents are authorized to share information to the TMCH or general public relating to you (as a DPML Applicant) and the DPML Application. If you proceed with a DPML Block, you are deemed to be on notice of the intellectual property rights of others in the TMCH.
You acknowledge and agree that it is not the obligation of Melbourne IT or Donuts to notify a DPML Block holder in advance of the termination or expiration (for any reason) of a DPML Block. Both Melbourne IT and Donuts shall be entitled but not obligated to immediately suspend or cancel any DPML Block that is in breach of this Agreement, the registry-registrar agreement between Melbourne IT and Donuts, Donuts Policies or any other applicable law or regulation.
7.1 In addition to any other warranties and/or disclaimers contained in this Agreement, you agree to the disclaimers in this clause 7.1 which apply directly between you and Donuts:
7.2 You agree that the DPML Service is provided on an “as is”, “as available” basis. To the extent permitted by law, neither Melbourne IT nor Donuts, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a “Relevant Party”) of either Melbourne IT or Donuts, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this Agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services, and all such warranties are hereby excluded.
7.3 MELBOURNE IT SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS RELATED TO OR IN CONNECTION WITH THE PRODUCTS, SERVICES AND PERFORMANCE OF THIRD PARTIES, REGARDLESS OF WHETHER YOU ARE AWARE THAT ANY SUCH PRODUCT, SERVICE OR PERFORMANCE IS PROVIDED BY A THIRD PARTY.
8.1 In no event will either Melbourne IT or Donuts, or each party’s officers, directors, employees, subcontractors or agents be liable to the other party or any other person or entity for any indirect, incidental, special, punitive or consequential damages, including but not limited to loss of business opportunity, business interruption, loss of profits or costs of procurement of substitute goods or services, including without limitation any damages that may result from:
8.2 The parties specifically acknowledge and agree that any cause of action arising out of or related to the DPML Service must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently waived.
8.3 To the maximum extent permitted by law, in no event shall Melbourne IT’ or Donuts’ total aggregate liability to you or any third party exceed the total amount paid by you in relation to the DPML Service.
8.4 The foregoing limitation of liability contained in this clause 8 shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this Agreement.
8.5 Notwithstanding any other provision to the contrary in this Agreement:
9.1 You agree to protect, defend, indemnify and hold harmless Melbourne IT and Donuts, and such party’s officers, directors, employees, affiliates, subcontractors and agents (collectively, the Indemnified Parties), from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by such party, directly or indirectly, arising from violation of any provision of this Agreement or the Donuts Policies.
9.2 In addition to clause 9.1, you agree to hold Donuts harmless from claims filed or disputes initiated by third parties, and that you shall compensate Donuts for any costs or expenses incurred or damages for which Donuts may be held liable as a result of third parties taking action against Donuts on the grounds that your DPML Application infringes the rights of a third party. For the purposes of this clause 9.2, the term “Donuts” shall also refer to its stockholders, directors, employees, members, subcontractors, the TMCH and their respective directors, agents and employees.
9.3 The indemnification obligations under this clause 9 shall survive any termination or expiration of this Agreement or use of the DPML Service.
10.1 You acknowledge and agree that from time to time the DPML Service may be inaccessible or inoperable for any reason including, but not limited to:
10.2 You acknowledge and agree that neither Melbourne IT nor Donuts has control over the availability of the DPML Service on a continuous or uninterrupted basis, and that neither Melbourne IT or Donuts (or either party’ subcontractors, if any) assume any liability to you or any other party with regard thereto.
10.3 Melbourne IT and Donuts reserve the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) the DPML Service (including without limitation any DPML Application or DPML Block) as a whole for any reason, including but not limited to the following:
11.1 You warrant and represent that:
11.2 Any DPML Applicants or DPML Block holders found to have repeatedly engaged in abusive registrations or practices, their agents or parties determined to be acting in concert therewith, may, at Donuts’ sole discretion, be disqualified from maintaining any current or future Registrations or DPML Blocks in any Registry or by Donuts.
11.3 The determinations of Donuts and the TMCH regarding any Applications, DPML Applications, Registrations, or DPML Blocks shall be final and non-appealable.
You acknowledge and agree that Donuts and its respective, managers, directors, employees, contractors and agents (including the TMCH and the Auction Provider) are not a party to this Agreement between Melbourne IT and you (or party acting in the name and/or behalf of you).
13.1 If any clause of this Agreement is held to be invalid or unenforceable in whole or part, the invalid or unenforceable wording shall be deemed to be omitted.
13.2 Any notice to be given under this Agreement is deemed to be served if delivered either by either or sent by pre-paid post, by fax or e-mail, to the party to whom it is given at its last known postal or e-mail address or fax number.
13.3 This Agreement is governed by the laws of Victoria, Australia, and you and Melbourne IT submit to the non-exclusive jurisdiction of those Victorian courts. Nothing in this Agreement may be construed as creating the relationship of agency partnership or joint venture between the parties.
13.4 You agree that Melbourne IT may assign this Agreement to a third party on prior written notice to you.
13.5 Melbourne IT’s failure to act upon or at any time to notify you and insist on strict performance of any provision of this Agreement is not a waiver of its right at any later time to insist on strict performance of that or any other provision of this Agreement.