Date: March 2008
Background
Melbourne IT Ltd trading as RegisterFree provides certain domain name and online services to its customers.
Melbourne IT Ltd trading as RegisterFree and Managed Affiliate wish to enter into an agreement for the Managed Affiliate to promote a specified range of Melbourne IT Ltd trading as RegisterFree products on a commission basis on the terms set out below.
Melbourne IT Ltd trading as RegisterFree and Managed Affiliate agree as follows:
1 Definitions
1.1 In this Agreement:
"Managed Affiliate Contact Number" has the meaning given to that term in Clause 7.2.
"Agreement" means Melbourne IT Ltd trading as RegisterFree Terms and Conditions for Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program, as amended or varied from time to time.
"Commissions" means the commissions specified in the Schedule and includes Renewal Commissions (if applicable). "Commission" shall have a corresponding meaning.
"Contact" means contact by any medium, whether by telephone, email, facsimile or otherwise.
"Customer" means a customer of Managed Affiliate.
"Effective Date" means the date of execution of this Agreement.
"Information" means information concerning Managed Affiliate, including, without information, Managed Affiliate's corporate name, address (postal and email), facsimile and telephone numbers, the name of any representatives of Managed Affiliate and their respective addresses (postal and email), facsimile and telephone numbers.
"Insolvency Event" means if any (or more than one) of the following occur with respect to a Party:
- the Party becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
- the Party (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to the Party, for the settlement of the Party's debts;
- the Party makes a general assignment for the benefit of creditors; or
- the Party ceases to conduct business.
"Intellectual Property Rights" means all intellectual or industrial property protect able by statute, at common law or in equity and includes all know how, inventions, patents, copyright, designs (whether or not registrable), trade secrets, circuit layout designs, circuit layout rights registered and unregistered logos, trade names, logos and get-up (and any copyright in such logos, trade names, logos and get-up) and confidential information and all other rights and interests of a like nature.
"Loss and Damage" means any claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and all related costs and expenses (including all reasonable legal fees and reasonable costs of investigation, litigation, settlement and judgment), however arising and whether present or future, fixed or unascertained, actual or contingent.
"Mark" means certain Melbourne IT Ltd trading as RegisterFree trademarks, logos or service marks, whether registered or not, as determined in Melbourne IT Ltd trading as RegisterFree's absolute discretion.
"Melbourne IT Ltd trading as RegisterFree Group" means:
- any Melbourne IT Ltd trading as RegisterFree Group Entity; and
- each director, officer, employee and agent of any Melbourne IT Ltd trading as RegisterFree Group Entity.
"Melbourne IT Ltd trading as RegisterFree Group Entity" means:
- Melbourne IT Ltd trading as RegisterFree; and/or
- any other corporation or other business entity controlled by, or under the common control of, Melbourne IT Ltd trading as RegisterFree. For the purposes of this definition, a corporation or other business entity shall be deemed to be controlled by, or under the common control of, Melbourne IT Ltd trading as RegisterFree, if Melbourne IT Ltd trading as RegisterFree owns directly or indirectly:
- fifty percent (50%) or more of the voting securities or voting interest in any such corporation or other business entity; or
- fifty percent (50%) or more of the interest in the profit or income in the case of a business entity other than a corporation; or
- in the case of a partnership, any other comparable interest equal to at least fifty percent (50%) share in the general partner.
"Melbourne IT Ltd trading as RegisterFree Web Site" means Melbourne IT Ltd trading as RegisterFree's web site, which is currently located at http://www.registerfree.com), which location Melbourne IT Ltd trading as RegisterFree may update from time to time.
"Party" means Melbourne IT Ltd trading as RegisterFree or Managed Affiliate (as the context requires) and "Parties" shall mean collectively Melbourne IT Ltd trading as RegisterFree and Managed Affiliate.
"Permitted Purpose" means to Contact Managed Affiliate using the Information for any of the following purposes:
- to provide notifications, offers, marketing or promotions concerning or related to Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program; or
- to provide notifications, offers, marketing or promotions about any products and services of Melbourne IT Ltd trading as RegisterFree (including new product developments and associated services) that Melbourne IT Ltd trading as RegisterFree believes will interest Managed Affiliate, whether or not relating to Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program.
"Promotional Code" means the HTML code referred to in Clause 7.1.
"Referred Customer" means only a Customer:
- who quotes or otherwise provides the Promotional Code to Melbourne IT Ltd trading as RegisterFree via telephone; and/or
- who expressly mentions Managed Affiliate when Melbourne IT Ltd trading as RegisterFree asks the Customer how the Customer heard about Melbourne IT Ltd trading as RegisterFree, but shall not include any other Customer irrespective of how that Customer heard about, or was referred to, Melbourne IT Ltd trading as RegisterFree.
"Renewal Commissions" has the meaning given to that term in the Schedule and "Renewal Commission" shall have a corresponding meaning.
"Renewals Commission Target" means any renewal commission target that Melbourne IT Ltd trading as RegisterFree may notify to Managed Affiliate from time to time in accordance with the Schedule.
"Services" means the domain names and the other products and services specified on the Melbourne IT Ltd trading as RegisterFree Web Site other than Melbourne IT Ltd trading as RegisterFree's Corporate Domain Name Management Services. Managed Affiliate acknowledges that the domain names, products and services specified on the Melbourne IT Ltd trading as RegisterFree Web Site may change or be updated by Melbourne IT Ltd trading as RegisterFree from time to time (including, to remove particular domain names, products and services from the Melbourne IT Ltd trading as RegisterFree Web Site).
"Term" means the term of this Agreement, as set out in Clause 2.1.
"WST" means Melbourne IT Ltd trading as RegisterFree's Web Solutions Team, or equivalent team.
2 Term and Appointment
2.1 Term
This Agreement shall commence on the Effective Date and continue unless the Party provides the other Party with written notice in accordance with Clause 9 ("Term").
2.2 Appointment
As and from the Effective Date, Melbourne IT Ltd trading as RegisterFree appoints Managed Affiliate to participate in its Managed Affiliate Program subject to, and upon the terms and conditions of this Agreement.
2.3 Contact by Melbourne IT Ltd trading as RegisterFree with Managed Affiliate
Managed Affiliate consents to the use of the Information for the Permitted Purpose. If Managed Affiliate does not consent to the use of the Information for the Permitted Purpose, then Managed Affiliate may opt-out of the use of the Information for the Permitted Purpose by providing written notice to Melbourne IT Ltd trading as RegisterFree, at 120 King Street, Melbourne 3000 Australia, or, by emailing Melbourne IT Ltd trading as RegisterFree at managed.affiliates@melbourneit.com.au.
2.4 Method of Sales to Customers
Managed Affiliate agrees that unless otherwise notified in writing by Melbourne IT Ltd trading as RegisterFree to Managed Affiliate, Customers may only purchase Services from Melbourne IT Ltd trading as RegisterFree in connection with the Managed Affiliate Program via WST and through no other mechanism (including, without limitation, via the website of either Melbourne IT Ltd trading as RegisterFree or Managed Affiliate).
3 Change of Terms and Conditions
3.1 Change to Terms and Conditions
Melbourne IT Ltd trading as RegisterFree may change the terms and conditions of this Agreement (including any Commissions) at any time by 45 days' written notice to Managed Affiliate. Such notice may constitute a general notice on a page of the Internet referred to on the page of the Melbourne IT Ltd trading as RegisterFree Web Site at http://www.registerfree.com/policies/.
3.2 Deemed Acceptance of Changes
Managed Affiliate agrees that Managed Affiliate's continued participation in the Managed Affiliate Program after the date of any notice by Melbourne IT Ltd trading as RegisterFree pursuant to Clause 3.1 will be deemed Managed Affiliate's acceptance of those revised terms and conditions.
4 Commissions
4.1 Payment of Commissions
Melbourne IT Ltd trading as RegisterFree will pay Managed Affiliate Commissions in respect of applicable Services on a monthly basis. The Commissions payable to Managed Affiliate are on either, a "per domain name registered" basis, a "per domain name renewed" basis (if applicable, and if the Renewal Commission Target has been met) or, a "per service obtained" basis for domain names registered ore renewed (if applicable, and if the Renewal Commission Target has been met) and paid for in full, or, for other Services obtained by Referred Customers and paid for in full (as the context requires).
4.2 Taxes
- In this clause 4.2 and the rest of this agreement, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
- Subject to clause 4.2(d) below, any Commission paid to Managed Affiliate by Melbourne IT Ltd trading as RegisterFree exclusive of any goods and services tax and other taxes or charges that may apply to the Commission by any relevant law is inclusive of any GST payable. Managed Affiliate is responsible for meeting the liability for any applicable tax, charge or levy.
- If Managed Affiliate has specified that Managed Affiliate is an Australian resident for taxation urposes, Managed Affiliate agrees to supply to Melbourne IT Ltd trading as RegisterFree a valid Australian Business Number (ABN), and any Commissions paid to Managed Affiliate:
- will be paid inclusive of any goods and services tax ("GST") but exclusive of any other tax or charge which may apply to the commission under any relevant law and, for which Managed Affiliate shall be responsible; and
- will be supported by a recipient created tax invoice issued to Managed Affiliate by Melbourne IT Ltd trading as RegisterFree in accordance with the requirements of the GST legislation then in force.
4.3 Recipient Created Tax Invoices
The parties agree that:
- Melbourne IT Ltd trading as RegisterFree can issue tax invoices in respect of the Commission;
- Managed Affiliate agrees it will not issue tax invoices in respect of the Commission;
- Managed Affiliate acknowledges that it is registered for GST as at the Effective Date and agrees to notify Melbourne IT Ltd trading as RegisterFree if it ceases to be registered for GST at any time during this Agreement;
- the Managed Affiliate agrees to provide Melbourne IT Ltd trading as RegisterFree with a valid Australian Business Number (ABN) within 14 days of the Effective Date;
- Melbourne IT Ltd trading as RegisterFree acknowledges that it is registered for GST as at the Effective Date and agrees to notify the Managed Affiliate if it ceases to be registered for GST or it ceases to satisfy any of the requirements of the relevant taxation determination for recipient created tax invoices at any time during this Agreement.
- If the Managed Affiliate does not provide Melbourne IT Ltd trading as RegisterFree with a valid Australian Business Number (ABN) or otherwise notifies Melbourne IT Ltd trading as RegisterFree that it is not registered for GST or ceases to be registered for GST at any time during this Agreement, then the Commission payable will be reduced to the amount equal to the GST inclusive amount divided by an amount equal to 1 plus the rate of GST prevailing at the time.
4.4 Reporting
Upon paying any Commission, as referred to in Clauses 4.1 and 4.2 above, Melbourne IT Ltd trading as RegisterFree shall provide a monthly report to Managed Affiliate detailing the number of domain names registered (or renewed, if applicable, and if the Renewal Commission Target has been met) and detailing the names of domain names registered (or renewed, if applicable, and if the Renewal Commission Target has been met), or services obtained, through Melbourne IT Ltd trading as RegisterFree, by Referred Customers during the relevant month.
4.5 Conduct
At all times the Managed Affiliate must:
- conduct business in a manner that reflects favourably at all times on the Services and protects and refrain from any conduct which is or could be detrimental the good name, goodwill, and reputation of Melbourne IT Ltd trading as RegisterFree; and
- comply with all applicable laws, regulations, and ordinances relating to their business and performance of this Agreement.
5 Intellectual Property Rights and Marks
5.1 Intellectual Property Rights
Managed Affiliate acknowledges to and agrees with, Melbourne IT Ltd trading as RegisterFree, that nothing in this Agreement shall constitute a transfer of any Intellectual Property Rights of Melbourne IT Ltd trading as RegisterFree to Managed Affiliate. Managed Affiliate agrees that Melbourne IT Ltd trading as RegisterFree will retain all right, title and interest in the Services. Managed Affiliate further agrees that nothing in this Agreement shall result in Managed Affiliate having any right, title or interest in any domain name registered in connection with Managed Affiliate participation in Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program.
5.2 Licence of Marks
- Managed Affiliate is hereby granted a limited licence to use Melbourne IT Ltd trading as RegisterFree's Marks in accordance with the terms of this Clause 5.2(b) and this Agreement ("Licence").
- The terms of the Licence shall be as follows:
- Managed Affiliate will be granted a limited license for the Term solely for use of such Marks;
- Managed Affiliate may only use the Marks in the format such Marks are provided by Melbourne IT Ltd trading as RegisterFree to Managed Affiliate and only for purposes connected to the conduct and promotion of the Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program and otherwise, as is required for Managed Affiliate's performance of Managed Affiliate's obligations under this Agreement;
- any alterations to the format of the Marks by Managed Affiliate must only be made with the prior written consent of Melbourne IT Ltd trading as RegisterFree;
- Melbourne IT Ltd trading as RegisterFree shall have the right to review the manner in which the Marks are being used and require modifications of such use, as Melbourne IT Ltd trading as RegisterFree deems necessary;
- if at any time, Melbourne IT Ltd trading as RegisterFree require modifications to the use of the Marks by Managed Affiliate, Managed Affiliate agrees to make those modifications as soon as possible after receipt of notice from Melbourne IT Ltd trading as RegisterFree requiring such modifications, and, in any event, within 7 days of that notice; and
- for the avoidance of doubt, the Licence shall automatically terminate on the termination of this Agreement (for any reason) and Managed Affiliate shall immediately cease use of the Marks upon the termination of this Agreement (for any reason).
6 Managed Affiliate Obligations
Managed Affiliate must not in any way say, hold out, or permit anyone to believe that Managed Affiliate is an accredited ICANN or auDA Registrar and Managed Affiliate will only be permitted to refer to Managed Affiliate's status under this Agreement as a "Melbourne IT Ltd trading as RegisterFree Managed Affiliate Program Member".
7 Melbourne IT Ltd trading as RegisterFree Obligations
7.1 HTML Code
Melbourne IT Ltd trading as RegisterFree agrees to provide Managed Affiliate with the facility to generate HTML code to use when linking from Managed Affiliate's website to a Melbourne IT Ltd trading as RegisterFree website (co-branded with Managed Affiliate's name).
7.2 Managed Affiliate Contact Number
Melbourne IT Ltd trading as RegisterFree agrees to provide a special 1300 telephone number for use by Managed Affiliate's Customers to telephone Melbourne IT Ltd trading as RegisterFree (the "Managed Affiliate Contact Number"), which Managed Affiliate Contact Number Managed Affiliate will be free to display prominently on all pages of the version of its website co-branded with Managed Affiliate's name. Managed Affiliate agrees, for the avoidance of doubt, that upon termination of this Agreement (for any reason) Managed Affiliate will immediately cease displaying the Managed Affiliate Contact Number on any pages of the version of any website or webpage co-branded with Managed Affiliate's name.
8 Warranties
Managed Affiliate represents and warrants to Melbourne IT Ltd trading as RegisterFree that:
- if Managed Affiliate is a company - it is duly incorporated and has the power to own property and to carry on its business; and
- it has the power and has taken all corporate and other action required, to enter into this Agreement and to authorise the execution and delivery this Agreement and the performance of its obligations this Agreement.
9 Termination
9.1 Termination
- Either Party may terminate this Agreement at any time for any reason upon fourteen (14) days prior written notice to the other Party.
- In addition to the termination rights contained in this Agreement or any other rights under this Agreement, either Party may, upon written notice to the other Party, terminate this Agreement if:
- the other party breaches any obligation under this Agreement or a Schedule to this Agreement, and, if the breach is capable of being remedied, the breaching party fails to cure such breach within fourteen (14) days after receiving written notice of the breach from the other Party; or
- an Insolvency Event occurs with respect to the other Party.
9.2 Effect of Termination
- Upon termination of this Agreement, Managed Affiliate will cease to be able to participate in the Melbourne IT Ltd trading as RegisterFree Managed Affiliate Program or the Melbourne IT Ltd trading as RegisterFree Melbourne IT Ltd trading as RegisterFree's Managed Affiliate Program. Notwithstanding the foregoing, Melbourne IT Ltd trading as RegisterFree agrees that Melbourne IT Ltd trading as RegisterFree shall continue to pay Managed Affiliate Commissions on the Services, including the renewal of domain names or services (if applicable, and if the Renewal Commission Requirement has been met) in accordance with the terms of this Agreement for a period of one year from the date of termination, if Melbourne IT Ltd trading as RegisterFree terminates this Agreement pursuant to Clause 9.1(a), or, Managed Affiliate terminates this Extended Managed Affiliate Agreement, pursuant to Clause 9.1(b)(i).
- The provisions of Clauses 8, 10 and 11.7 shall survive termination of this Agreement.
10 Liability and Indemnity
10.1 Liability of Melbourne IT Ltd trading as RegisterFree
- To the full extent permitted by law, but subject to Clause 8, all express or implied warranties, representations, terms and conditions regarding any of the Services provided by Melbourne IT Ltd trading as RegisterFree under this Agreement (including without limitation their merchantability or fitness for any particular purpose), or regarding this Agreement generally, are expressly excluded.
- To the extent permitted by law and subject to Clause 10.1(c), Managed Affiliate agrees that Melbourne IT Ltd trading as RegisterFree has no liability to the Managed Affiliate or any Referred Customer for any loss or damage (whether direct, indirect, consequential, loss of profits or otherwise) the Managed Affiliate or any Referred Customer may incur (whether by negligence or fault of Melbourne IT Ltd trading as RegisterFree or otherwise) in connection with this Agreement or any action (or inaction) by Melbourne IT Ltd trading as RegisterFree in connection with this Agreement.
- If any legislation implies in this Agreement a term or warranty and also prohibits Melbourne IT Ltd trading as RegisterFree from modifying the application of or exercise of, or liability under that term or warranty, that term or warranty is deemed to be part of this Agreement and Managed Affiliate agrees that Melbourne IT Ltd trading as RegisterFree's liability under this Agreement for a breach of that term or warranty is limited to, in the sole discretion of Melbourne IT Ltd trading as RegisterFree, 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.
Managed Affiliate Indemnity
- Managed Affiliate shall indemnify the Melbourne IT Ltd trading as RegisterFree Group from any Loss and Damage threatened, asserted, or filed by a third party against any of the Melbourne IT Ltd trading as RegisterFree Group, or arising out of or relating to:
- Managed Affiliate's unlawful conduct in referring the Customer to Melbourne IT Ltd trading as RegisterFree; and/or ; and/or
- any breach of this Agreement by Managed Affiliate.
11 General Provisions
11.1 Entire Agreement
This Agreement, including its Schedules:
- constitutes the entire agreement between the Parties as to its subject matter; and
- in relation to that subject matter, supersedes any prior understanding or agreement between the Parties.
11.2 Invalid or Unenforceable Provisions
If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
- it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- that fact does not affect the validity or enforceability of:
- that provision in another jurisdiction; or
- the remaining provisions.
11.3 Waiver and Exercise of Rights
- A waiver of a provision of or of a right under this Agreement is binding on the Party granting the waiver only if given in writing and signed by the waiving Party.
- A waiver is effective only in the specific instance and for the specific purpose for which it is given.
- A single or partial exercise of a right by a Party does not preclude another exercise of that right or the exercise of another right.
- Failure by a Party to exercise or any delay in exercising a right does not operate as a waiver.
11.4 Rights Cumulative
The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the Parties by law.
11.5 Notices
If either Party gives or is required to give a notice to the other Party under this Agreement, it must be (a) in writing; and (b) directed to the recipient's address for service of notices specified at the commencement of this Agreement, or as varied by any notice; and (c) hand delivered or sent by pre-paid post or by facsimile or email to that address.
11.6 Relationship of Parties
The relationship of the Parties is that of independent contracting parties. Nothing in this Agreement may be considered or interpreted as constituting the relationship of the parties as that of partners, joint venturers or principal and agent. Each Party must not at any time make any statement or representation which is inconsistent with this relationship.
11.7 Governing Law
This Agreement is governed by the laws of Victoria, Australia. Each Party submits to the non exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
11.8 Assignment
Managed Affiliate may not assign its rights and obligations under this Agreement without the prior written consent of Melbourne IT Ltd trading as RegisterFree. Melbourne IT Ltd trading as RegisterFree may assign its rights and obligations under this Agreement to any other Melbourne IT Ltd trading as RegisterFree Group Entity by written notice to Managed Affiliate.
Schedule
COMMISSIONS
Definitions:
In this Schedule:
"Full Priced Service" means a Service purchased by a Referred Customer at the Retail Cost.
"Reduced Priced Service" means a Service purchased by a Referred Customer for a price that is less than the Retail Cost, or, which is subject to a promotion such that the price charged by Melbourne IT Ltd trading as RegisterFree to the Referred Customer for that Service is less than the Retail Cost.
"Retail Cost" in relation to a Service, means the full Melbourne IT Ltd trading as RegisterFree retail cost for that Service.
A reference to "%" in the case of a Full Priced Service is a reference to the percentage of the Retail Cost of the relevant Full Priced Service, as and when that Full Priced Service is purchased by the Referred Customer from WST.
A reference to "%" in the case of a Reduced Price Service is a reference to the percentage of the Melbourne IT Ltd trading as RegisterFree sale price of the relevant Reduced Price Service, as and when that Reduced Price Service is purchased by the Referred Customer from WST.
Commissions
Managed Affiliate shall be entitled to receive 20% commission on all Services payable in accordance with clause 4, which, for the purpose of domain names, includes 20% of the renewal of the relevant domain name by a Referred Customer.
Irrespective of whether or not a Service (or the Services) is (or are) specified on the Melbourne IT Ltd trading as RegisterFree Web Site, Melbourne IT Ltd trading as RegisterFree reserves the right to change, add or reduce the number of Services to which Managed Affiliate will be entitled to receive commission under this Schedule and the Managed Affiliate Program in accordance with clause 3.1.
Melbourne IT Ltd trading as RegisterFree reserves the right to introduce a Renewal Commission Target in accordance with clause 3.1, which will be required to be met by Managed Affiliate prior to Managed Affiliate being entitled to receive Renewal Commission.
