PLANETDOMAIN RESELLER AGREEMENT
(080904)
THIS AGREEMENT sets out the terms on which Primus Telecommunications Pty LTD ABN 69 071 191 396 of Level 3, 538 Collins Street, Melbourne, Victoria, Australia 3000 trading under the business name of PlanetDomain ("PlanetDomain") engages a reseller (“Reseller”) as its agent in the provision of domain name registration and registrar services and of other services.
BACKGROUND
A. PlanetDomain is duly accredited by ICANN, auDA and Nominet UK and others to provide registrar services for top-level domain names including .com, .net .org, .biz, and .info and country codes including co.uk, org.uk, .tv, .cc, .us, .com.au., .net.au, .org.au, .asn.au and .id.au and others.
B. PlanetDomain is a provider of domain name registration and registrar services and of Internet related and other services (the "Services").
C. It has been agreed that Reseller will act as agent for and on behalf of PlanetDomain submit applications from potential Customers of the Services and will provide Services to Customers.
1.1 “Commission” means amounts payable by PlanetDomain to Reseller under this agreement.
1.2 “Confidential Information” includes all proprietary or other information of the Customer or of PlanetDomain or any Related Body Corporate, including without limitation:
1.2.1 relating or belonging to past, current or prospective Customers;
1.2.2 business, financial or accounting information or information relating to Planet Domain or to the Services;
1.2.3 information which the Reseller knows or ought to know is commercially sensitive or confidential to PlanetDomain; but
excludes information which is already properly in the public domain;
1.3 “Customer” means a person who becomes a user of the Services as a result of being introduced by Reseller under this or any earlier agreement;
1.4 “Customer Price” means the price payable by a Customer for Services;
1.5 “Bad Debts” means amounts owing and unpaid to PlanetDomain by Customers to whom PlanetDomain has commenced to provide Services (including an amount previously paid, payment of which is subsequently reversed by any bank, credit card provider or financier) less any amount previously deducted as Bad Debts, payment of which has been received.
1.6 “GST” means GST within the meaning of the GST Act;
1.7 “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Australia) (as amended);
1.8 “Marks” means all trade marks, designs, logos, symbols and other indicia used by PlanetDomain in relation to the Services or any other aspect of Planet Domain business;
1.9 “PD Price” means the amount charged by PlanetDomain for a Service;
1.10 "PlanetDomain Website" means the PlanetDomain home web page located at http://www.planetdomain.com or as otherwise notified by Planet Domain;
1.11 “Related Body Corporate” has the meaning given to it in the Corporations Act;
1.12 “Services” means domain name and registrar services and internet related and other services (including supply of goods if applicable) from time to time offered by PlanetDomain for sale through its resellers (and where applicable references to Services include Customer Support Services);
1.13 “Customer Support Services” means the following support services to each Customer:
1.13.1 first level help desk support during normal business hours where the Reseller is located;
1.13.2 response to any Customer request within 1 business day of receipt; timely escalation to PlanetDomain of any requests the Reseller is unable and cannot reasonably be expected to resolve (by providing a fully documented log of activity by email or fax);
1.13.3 liaise with the Customer and PlanetDomain throughout the resolution period;
1.13.4 provide support staff who can answer all enquiries relating to the domain name registration process, pricing, policies and procedures, transfer procedures, renewals and payments;
1.13.5 provide assistance to Customers in online membership applications, searching for domain availability, registering domain names, transferring domains, renewing domain names, the payment process, and online Customer maintenance of their membership details and domain names;
1.13.6 assist the Customer in understanding the terms and conditions of the service agreement;
1.13.7 ensure that all communication with the Customer is friendly, courteous, efficient, accurate and fully informative;
1.13.8 ensure all Customer requests are actioned in a timely fashion, and that all outstanding requests are followed up promptly;
1.13.9 use every reasonable endeavour to ensure Customer satisfaction;
1.13.10 such other support services as are specified by PlanetDomain from time to time.
1.14 "System Interface" means the interface (as updated from time to time) supplied by PlanetDomain to the Reseller for the purpose of processing applications from Customers for Services;
1.15 “Transaction Costs” means expenses incurred by Planet Domain in respect of a payment by a Customer to PlanetDomain, including without limitation, fees payable to a bank, credit card provider or financier involved in that transaction;
1.16 “Tax Invoice” has the same meaning as in the GST Act.
1.17 references to a person includes any other entity;
1.18 words importing the singular include the plural and vice versa;
1.19 words importing one gender include every gender;
1.20 if a party comprises more than one person those persons contract jointly and severally.
2.1 The Reseller will seek potential Customers for the Services on the terms and conditions contained in this agreement.
2.2 Contracts entered into by Customers for the Services will be with PlanetDomain and if the name of the Reseller is on those contracts it is as agent for PlanetDomain .
2.3 The Reseller will carry on its business on its own behalf and under its own name and not under the name of or on behalf of PlanetDomain, except in respect of the sale of the Services, which it will do as agent for PlanetDomain.
2.4 Reseller is not authorised on behalf of Planet Domain to approve an application from a Customer nor to make any commitment or enter into any agreement on behalf of Planet Domain, without the express consent of PlanetDomain .
2.5 PlanetDomain is not obligated to Reseller to accept as a Customer any person referred by Reseller, or to continue to provide any Service at all or on any particular terms.
2.6 The Reseller must promptly install, utilise and keep updated the System Interface, in accordance with directions from PlanetDomain.
2.7 The Reseller must, in accordance with directions from Planet Domain, establish, maintain and utilise in connection with the Services, a Reseller Website.
2.8 The Reseller will comply with all the requirements of any registrar, licensee or other person having authority in relation to domain names or any other of the Services.
2.9 The Reseller will during the term of this agreement, without additional payment, provide to each Customer in a timely and professional manner and in accordance with this agreement, Customer Support Services.
3.1 PlanetDomain will set a PD Price in respect of each of the Services. A new PD Price or a change to an existing PD Price will take effect from the time it is posted on the PlanetDomain Website or otherwise notified to Reseller.
3.2 PlanetDomain may recommend the Customer Price to be charged to a Customer for each of the Services, but the Reseller will set the actual Customer Price. Reseller will notify PlanetDomain in writing at least 14 days before each such Customer Price or any change is to take effect.
3.3 System Interface will be configured so as to impose the Customer Price set by the Reseller for each of the Services, plus any applicable GST or the like which may be payable having regard to the location of the Customer and other relevant factors.
3.4 The Customer Price (plus GST where applicable) will be paid in advance by the Customer direct to PlanetDomain by direct credit or credit card or such other method as PlanetDomain prescribes. Reseller will do such things as PlanetDomain requires to ensure that payment is duly made. Customer will not be entitled to receive a Service until payment is made.
3.5 PlanetDomain will through the System Interface, where applicable, issue to the Customer a Tax Invoice from PlanetDomain as the principal supplier.
3.6 Subject to receipt by PlanetDomain of the Customer Price (and GST where applicable), PlanetDomain will apply that amount:
3.6.1 as to GST or other tax included, as required by law;
3.6.2 as to the PD Price, to PlanetDomain;
3.6.3 as to any Transaction Costs incurred by PlanetDomain, to PlanetDomain;
3.6.4 as to any Bad Debts owing by Customers of the Reseller, to PlanetDomain;
3.6.5 as to the balance, to Reseller by way of Commission.
3.7 PlanetDomain will pay Commission to Reseller monthly by the later of the end of the month following the month in which PlanetDomain receives payment of the Customer Price, or within 14 days after receipt by PlanetDomain from Reseller of an invoice for that Commission (which will be in the form of a Tax Invoice if GST is applicable). If the amount of Commission owing to the Reseller in a month is less than $USD 50 it will be carried over to the next month.
3.8 The amount of Commission calculated in accordance with this clause is exclusive of GST on the Commission, if any is applicable, which will be payable by PlanetDomain in addition.
4.1 The term of this agreement will commence when PlanetDomain accepted an application by Reseller to become a PlanetDomain Reseller or such other day as the parties have agreed and will continue until it is terminated. Either party may terminate it on not less than 30 days notice in writing to the other party.
4.2 In addition to any other rights, PlanetDomain may terminate this Agreement immediately by notice in writing to the Reseller if the Reseller is then in breach of any of its obligations under this Agreement.
The Reseller must:
5.1 not during or after the term of this agreement do anything that would reflect unfavourably on the image of PlanetDomain or any Related Body Corporate;
5.2 promptly report to PlanetDomain any enquiries, complaints or other relevant matters of which Reseller becomes aware with respect to the Services;
5.3 not except as expressly authorised by PlanetDomain, prepare or use any advertising or other material or make any representations or warranties or statements relating to any of the Services;
5.4 identify itself only as an independent commissioned Reseller to PlanetDomain with respect to the Services and not as a business which is otherwise associated with or authorised or endorsed by PlanetDomain;
5.5 not disparage PlanetDomain or its products or services, and must not disparage competitors of PlanetDomain or their services or products;
5.6 keep and make available to PlanetDomain accurate records that are at least sufficient for PlanetDomain to ascertain the Reseller's compliance with its obligations under this Agreement;
5.7 comply with all of PlanetDomain’ written policies, procedures and directives in relation to matters relating to this agreement;
5.8 disclose to potential Customers the fact that it is entitled to Commission;
5.9 comply with all applicable laws, including but not limited to the Trade Practices Act 1974 (Cth.) and the Fair Trading Acts or similar legislation;
5.10 use personal information about Customers only for the purpose of fulfilling Reseller obligations under this agreement and take all reasonable steps to ensure that such personal information is protected against loss and unauthorised access, use, modification and disclosure and not do anything that would constitute a breach or cause PlanetDomain to breach any law relating to the protection of privacy;
5.11 not assign, delegate or sub contract any right or interest under this agreement;
5.12 at all times during the term of this agreement effect and maintain workers compensation or equivalent insurance and public liability insurance for a minimum cover of $10,000,000 and upon request furnish evidence to the reasonable satisfaction of PlanetDomain as to the currency of the insurance;
5.13 not during or after the term of this agreement, seek to influence any Customer or former Customer to acquire from any other provider, services which are of a type sold in competition to any of the Services.
6.1 PlanetDomain will if it accepts an application from a Customer, and subject to the obligations of the Reseller, use reasonable commercial endeavours to supply Services to that Customer in accordance with contract.
6.2 PlanetDomain is not obliged to promote or to continue to offer any of the Services.
6.3 PlanetDomain does not grant to Reseller any exclusive rights.
6.4 PlanetDomain does not represent to Reseller that Reseller will earn any or any particular amount of Commission during the term of this agreement.
6.5 PlanetDomain will be free during and after the term of this agreement to solicit new business from Customers without reference to Reseller and without Reseller being entitled to Commission in respect of that business.
6.6 Nothing in this Agreement requires PlanetDomain to disclose to Reseller any information that PlanetDomain regards as confidential to its operations or to disclose any information about a Customer that is protected by any law relating to privacy.
7.1 Unless otherwise expressly stated, all amounts of Commission referred to in this agreement are exclusive of GST and all amounts of PlanetDomain revenue from Customers on which Commission is calculated are amounts exclusive of GST.
7.2 If a party makes any supply of goods or services which gives rise to a liability for GST the party liable to pay must also pay any GST payable in respect of that supply.
8.1 Upon termination of this agreement the Reseller must immediately and at the Reseller's own expense:
8.1.1 cease identifying itself as an agent, reseller or as having any other relationship with PlanetDomain;
8.1.2 cease promoting, selling and supporting the Services;
8.1.3 do all such things as PlanetDomain may require to facilitate the transfer of any Customer records and the management of, and the provision of Customer Support Services to all Customers to PlanetDomain or as it may direct (it being acknowledged that the Customer contracts are with PlanetDomain as principal and that PlanetDomain is entitled to all information in relation to the Customers held by or on behalf of Reseller);
8.1.4 deliver to PlanetDomain all material that refers to PlanetDomain or to the Services;
8.1.5 remove all reference to PlanetDomain and the Services from the Reseller's Website;
8.1.6 pay forthwith any amounts the Reseller owes PlanetDomain under this agreement;
8.1.7 discontinue any use of the Marks, including but not limited to use in advertising or business material, except to properly identify the Services;
8.1.8 return, upon request, all Confidential Information.
8.2 Upon termination of this agreement the Reseller will cease to have administrative or any other rights to the domain names registered to Customers and will take all such steps as PlanetDomain may require to transfer any such rights to PlanetDomain or as it directs. The Reseller will cease to operate as the registrar of domain names that have been registered to Customers and such rights, obligations and duties that are required of a registrar will be transfered by it to PlanetDomain or as it directs.
8.3 The expiry or termination of this agreement does not affect the rights accruing to a party before the expiry or termination.
Unless PlanetDomain otherwise agrees in writing, Reseller will in respect of all Confidential Information:
9.1 keep it in strict confidence and use it only for the purpose of performing the Reseller's obligations under this Agreement;
9.2 not reproduce or copy it, in whole or in part, except as is necessary for proper use under this Agreement;
9.3 make it available only to such employees of the Reseller who have a need to have access to it for the purposes of this Agreement and have been obliged to comply with the terms of this clause in favour of PlanetDomain; and
9.4 return or (at the option of PlanetDomain) destroy it, together with any copies, in whatever form held, when it is no longer needed or when this Agreement terminates, whichever occurs first.
10.1 The parties agree that neither will use the intellectual property of the other unless permitted under this agreement or otherwise in writing from the other.
10.2 The Reseller agrees that PlanetDomain may include the Reseller's name and other details on the PlanetDomain Website and in connection with the Services.
10.3 The Reseller agrees that all intellectual property in the Services belongs to PlanetDomain.
10.4 The Reseller must not:
10.4.1 use or register any trade marks which are similar to the Marks;
10.4.2 dispute ownership of the Marks or other intellectual property of PlanetDomain; or
10.4.3 do anything that reduces the value of the goodwill associated with the Marks or other intellectual property of PlanetDomain.
11.1 Subject to any conditions and warranties implied into this Agreement by the Trade Practices Act 1974 and other applicable legislation that cannot lawfully be excluded, restricted or modified (“Statutory Warranties”) all conditions, warranties and other provisions which might otherwise have been implied into this Agreement or in relation to the provision of any of the Services, are excluded.
11.2.1 if the claim relates to goods, repair or replacement of the goods or payment of the cost of having the goods replaced; and
11.2.2 if the claim relates to services, supplying the services again or payment of the cost of having the services supplied again.
11.3 Subject to any liability of PlanetDomain in respect of Statutory Warranties, to the extent permitted by law, the liability of PlanetDomain to the Reseller or any other person, whether in contract, tort (including negligence), under statute or otherwise, arising out of or in any way relating to this Agreement:
11.3.1 except as expressly stated in this Agreement, is excluded;
11.3.2 where it cannot be excluded, is limited in total to $20,000.00; and
11.3.3 excludes liability for any indirect, secondary or consequential loss or damage or for loss of income, profits or anticipated savings or loss of opportunity.
12.1 A notice may be given by PlanetDomain to Reseller at any of:
12.1.1 in the case of a corporation, its registered office;
12.1.2 the fax number, email address, street or postal address specified in an Application or otherwise notified by Reseller to PlanetDomain;
12.1.3 by display on the PlanetDomain Website.
12.2 A notice is duly given:
12.2.1 if personally delivered – at the time of delivery;
12.2.2 if posted by mail – at 10:00 am on the business day next following posting;
12.2.3 if emailed by PlanetDomain – 12 hours after sending;
12.2.4 if posted on a PlanetDomain website – 12 hours after posting;
12.2.5 if faxed - when the sender’s fax machine indicates a successful transmission.
12.3 A notice from PlanetDomain need not be signed and, without limitation, may be incorporated on or enclosed with an Invoice.
12.4 A notice to PlanetDomain must be in writing delivered or sent by mail addressed to PlanetDomain General Counsel level 3 538 Collins Street Melbourne 3000.
The Reseller will indemnify and keep indemnified PlanetDomain against all claims, demands and proceedings made, threatened or brought and against any damage, loss, expense or liability (including legal costs on an indemnity basis) incurred or which but for this indemnity PlanetDomain may have incurred, by reason of or in connection with anything done or omitted by the Reseller or any person on behalf of the Reseller in relation to this agreement.
The law in force in Victoria, Australia governs this agreement and the parties submit to the jurisdiction of the courts of Victoria.