Trademark Validation Service Terms and Conditions

Date: August 2011

TERMS AND CONDITIONS

These are the standard terms and conditions of supply of the Trademark Validation service offered from time to time by Melbourne IT ("Service" or "Services").

Please read this agreement carefully. It is a condition of your use of the Services that you ("you" and "your") comply with these terms and conditions.

1. Terms and Amendment

1.1 You agree that Melbourne IT Limited (ACN 073 716 793) ("Melbourne IT") will supply the Services to you on the terms set out in this agreement.

1.2 This agreement commences on the date upon which Melbourne IT confirms to you by email or any written medium that the Services has been commenced or been activated.

1.3 Melbourne IT may vary these terms, or the terms of the operation of the Service, at any time by general notice on a page of the internet referred to on the home page of Melbourne IT's website located at http://www.melbourneit.com.au/policies/. Changes will become effective upon publication of the notice.

1.4 If you use the Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.

1.5 These terms constitute the agreement in its entirety and supersede prior agreements.

2. Service

2.1 This Service is only available to you if you have submitted a .XXX Application with Melbourne IT.

2.2 The Service assists you to check certain details of the trademark you are relying upon to reserve a domain name in the Sunrise B phase of the launch of the .XXX TLD (".XXX Application") for early detection of potential issues which may arise in use of your trademark.

2.3 Melbourne IT will submit your trademark details via its third party provider's ("Supplier") tool for rectification against details provided by you. The Supplier's tool will scan the following details of your trademark (as provided by you):

(a) IPR Name;

(b) IPR Number;

(d) IPR Registration Date; and

(e) IPR Entitlement ('Owner' check only)

against certain online trademark registers in Supported Jurisdictions and identify any inconsistencies. "Supported Jurisdictions" means the online trademark databases of specific jurisdictions the Service supports, including Andorra, Australia, Austria, Benelux, Bosnia and Herzegovina*, Bulgaria, Canada, Chile, Columbia, Croatia, Cyprus, Czech Republic, Germany, Denmark, Ecuador, Estonia, European Union (community), Finland, France, Hong Kong, Hungary, World Intellectual Property Organisation (WIPO), Ireland, Japan, Latvia, Lithuania, Macedonia*, Malta*, Mexico, New Zealand, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States. Jurisdictions marked with an asterisk may only have trademarks registered since 2005 available online.

2.4 Where inconsistencies are identified, Melbourne IT will notify you. Melbourne IT will otherwise automatically submit your related .XXX Application to the ICM Registry (".XXX Registry").

2.5 You must complete all sections specifying details of your trademark and .XXX Application and submit this to Melbourne IT. Melbourne IT will only verify details submitted by you.

2.6 You agree to grant a non-exclusive royalty-free licence to Melbourne IT and its Supplier to use, transmit, display and reproduce your provided details in order to fulfil Melbourne IT's obligation to provide you with the Services as contemplated by this agreement.

3. Reliance

You acknowledge and agree that your use of or reliance on any reports, written advice, information or work performed by Melbourne IT is your sole responsibility, and that Melbourne IT accepts no liability in relation to such use or reliance, or any matter arising from your use or reliance. Melbourne IT will not be liable to your for any .XXX domain name registration or reservation which is rejected by the .XXX Registry or its' validation agent for any reason whatsoever.

4. Disclaimer

4.1 You acknowledge that Melbourne IT does not provide any legal opinions or advice in relation to:

(a) this Service;

(b) any reports provided by Melbourne IT or any action taken by Melbourne IT as a result of this Service; or

You should seek legal advice in respect of the eligibility or suitability of any trademark or any .XXX domain name registration or reservation application (including but not limited to any infringement or intellectual property law questions arising out of any .XXX domain name registration or reservation application).

4.2 Melbourne IT uses software supplied by its Supplier in performing the Services. Melbourne IT does not make and no person acting on behalf of Melbourne IT has made, 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.

5. Your Warranties

You warrant that:

5.1 you have not entered into this agreement or obtained the Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either Melbourne IT or its Supplier concerning this agreement or the Services, other than any statement or representation contained in this agreement;

5.2 you are at least 18 years of age;

5.3 all information provided to Melbourne IT is true and correct, up to date and not fraudulent;

5.4 you may not resupply or sublicense all or any part of the Services to any third party, directly or indirectly, under any circumstances; and

5.5 your use of the Services will not infringe the intellectual property or any other rights of Melbourne IT, its Supplier or any third party.

6. Melbourne IT Warranties

6.1 You agree that the Services are provided on an "as is", "as available" basis. To the extent permitted by law, neither Melbourne IT nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of either Melbourne IT or the Supplier, 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.

6.2 In addition to clause 6.1, to the extent permitted by law, neither Melbourne IT nor its Supplier, or, any Relevant Party of either Melbourne IT or its Supplier:

6.2.1 warrant that the Services will meet your requirements or deliver any particular outcome;

6.2.2 warrant that the Services will be uninterrupted, timely, secure or error free;

6.2.3 warrant that information accessed in the provision of the Services or provided to you is authentic, up to date or uncorrupted;

6.2.4 warrant that information contained in reports is correct, valid, accurate or complete;

6.2.5 warrant that either party will find or present to you all such information accessible or that the Services or any reports will uncover or appropriately identify all relevant information; or

6.2.6 make any warranty concerning the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the Services.

6.3 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.

7. Liability

7.1 Notwithstanding any other provision to the contrary, to the maximum extent permitted by law, Melbourne IT or its Supplier will not be liable in any way for any loss of profit, loss of data, loss of savings, loss of goodwill or business opportunities, or for any special, punitive or exemplary damages or for any indirect or consequential loss or damage, including but not limited to losses which may reasonably have been supposed to be in the contemplation of the parties at the time of the first supply of the Services as a probable result of the relevant act or omission, which arise out of or in connection with the supply of the Services to you by Melbourne IT or otherwise arise out of or in connection with the Service. To the maximum extent permitted by law, Melbourne IT's aggregate liability for all damages not excluded in the preceding sentence (regardless of the legal basis on which they arise or are incurred) is limited to the fees paid by you for this Service.

7.2 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Melbourne IT and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.

7.3 Melbourne IT acknowledges that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Melbourne IT and its Supplier (and the liability of any Relevant Party of either Melbourne IT or its Supplier) shall be limited to the greatest extent permitted by applicable law.

8. Indemnity

You will indemnify and defend Melbourne IT and its Supplier and any Relevant Party of either Melbourne IT or its Supplier (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or relating to:

(a) any breach of this agreement by you; and/or

(b) the use of the Services by you; and/or

(d) the implementation of the AUP by Melbourne IT, any action taken by Melbourne IT in accordance with the AUP, or, any breach or violation of the AUP by you.

Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.

9. AUP and Privacy Policy

9.1 You agree to comply with Melbourne IT's Acceptable Use Policy located at http://www.melbourneit.com.au/policies/acceptableusepolicy.php, as varied from time to time ("AUP"). If Melbourne IT receives notice of, or otherwise becomes aware that you have failed to comply with any provision of this AUP, in addition to any other rights of Melbourne IT under this agreement, you agree that Melbourne IT may immediately take corrective action, including suspension of any and all Services or terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, Melbourne IT shall not refund to you any fees paid to Melbourne IT prior to such corrective action.

9.2 You agree you accept Melbourne IT's Privacy Policy located at http://www.melbourneit.com.au/privacy/ as varied from time to time ("Privacy Policy").

10. Force Majeure

Neither Melbourne IT nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

11. Miscellaneous

11.1 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.

11.2 In the event it is necessary for Melbourne IT to enforce its rights under this agreement, you agree to pay all fees incurred by Melbourne IT (including, but not limited to, legal fees and collection agency fees)

11.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of Melbourne IT.

11.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

11.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.