Melbourne IT's Managed Affiliate Program

1.1 In this Agreement:

"Managed Affiliate Contact Number" has the meaning given to that term in Clause 7.2.

"Agreement" means Melbourne IT Terms and Conditions for Melbourne IT'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 that Melbourne IT confirms to you that you have been accepted into Melbourne IT's Managed Affiliate Program.

"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:

1. the Party becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
2. 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;
3. the Party makes a general assignment for the benefit of creditors; or
4. the Party ceases to conduct business.

"Intellectual Property Rights" means all intellectual or industrial property protectable by statute, at common law or in equity and includes all know how, inventions, patents, copyright, designs (whether or not registerable), 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 trademarks, logos or service marks, whether registered or not, as determined in Melbourne IT's absolute discretion.

"Melbourne IT Group" means:

1. any Melbourne IT Group Entity; and
2. each director, officer, employee and agent of any Melbourne IT Group Entity.

"Melbourne IT Group Entity" means:

1. Melbourne IT; and/or
2. any other corporation or other business entity controlled by, or under the common control of, Melbourne IT. 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, if Melbourne IT owns directly or indirectly:
1. fifty percent (50%) or more of the voting securities or voting interest in any such corporation or other business entity; or
2. 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
3. in the case of a partnership, any other comparable interest equal to at least fifty percent (50%) share in the general partner.

"Melbourne IT Web Site" means Melbourne IT's web site, which is currently located at http://www.melbourneit.com.au), which location Melbourne IT may update from time to time.

"Party" means Melbourne IT or Managed Affiliate (as the context requires) and "Parties" shall mean collectively Melbourne IT and Managed Affiliate.

"Permitted Purpose" means to Contact Managed Affiliate using the Information for any of the following purposes:

1. to provide notifications, offers, marketing or promotions concerning or related to Melbourne IT's Managed Affiliate Program; or
2. to provide notifications, offers, marketing or promotions about any products and services of Melbourne IT (including new product developments and associated services) that Melbourne IT believes will interest Managed Affiliate, whether or not relating to Melbourne IT's Managed Affiliate Program.

"Promotional Code" means the HTML code referred to in Clause 7.1.

"Referred Customer" means only a Customer:

1. who quotes or otherwise provides the Promotional Code to Melbourne IT via telephone; and/or
2. who expressly mentions Managed Affiliate when Melbourne IT asks the Customer how the Customer heard about Melbourne IT, but shall not include any other Customer irrespective of how that Customer heard about, or was referred to, Melbourne IT.

"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 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 Web Site other than Melbourne IT's Corporate Domain Name Management Services. Managed Affiliate acknowledges that the domain names, products and services specified on the Melbourne IT Web Site may change or be updated by Melbourne IT from time to time (including, to remove particular domain names, products and services from the Melbourne IT Web Site).

"Term" means the term of this Agreement, as set out in Clause 2.1.

"WST" means Melbourne IT's Web Solutions Team, or equivalent team.

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 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 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 Limited, at 120 King Street, Melbourne 3000 Australia, or, by emailing Melbourne IT 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 to Managed Affiliate, Customers may only purchase Services from Melbourne IT in connection with the Managed Affiliate Program via WST and through no other mechanism (including, without limitation, via the website of either Melbourne IT or Managed Affiliate).

3.1 Change to Terms and Conditions

Melbourne IT 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 Web Site at http://www.melbourneit.com.au/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 pursuant to Clause 3.1 will be deemed Managed Affiliate's acceptance of those revised terms and conditions.

4.1 Payment of Commissions

Melbourne IT 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

1. Subject to Clause 4.2(b), any Commission paid to Managed Affiliate by Melbourne IT exclusive of any goods and services tax and other taxes or charges that may apply to the Commission by any relevant law. Managed Affiliate is responsible for meeting the liability for any applicable tax, charge or levy.
2. If Managed Affiliate has specified that Managed Affiliate is an Australian resident for taxation purposes, Managed Affiliate agrees to supply to Melbourne IT a valid Australian Business Number (ABN), and any Commissions paid to Managed Affiliate:
1. 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
2. will be supported by a recipient created tax invoice issued to Managed Affiliate by Melbourne IT in accordance with the requirements of the GST legislation then in force.

4.3 Reporting

Upon paying any Commission, as referred to in Clauses 4.1 and 4.2 above, Melbourne IT 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, by Referred Customers during the relevant month.

4.4 Conduct

At all times the Managed Affiliate must:

1. 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; and
2. comply with all applicable laws, regulations, and ordinances relating to their business and performance of this Agreement.

5.1 Intellectual Property Rights

Managed Affiliate acknowledges to and agrees with, Melbourne IT, that nothing in this Agreement shall constitute a transfer of any Intellectual Property Rights of Melbourne IT to Managed Affiliate. Managed Affiliate agrees that Melbourne IT 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's Managed Affiliate Program.

5.2 Licence of Marks

1. Managed Affiliate is hereby granted a limited licence to use Melbourne IT's Marks in accordance with the terms of this Clause 5.2(b) and this Agreement ("Licence").
2. The terms of the Licence shall be as follows:
1. Managed Affiliate will be granted a limited license for the Term solely for use of such Marks;
2. Managed Affiliate may only use the Marks in the format such Marks are provided by Melbourne IT to Managed Affiliate and only for purposes connected to the conduct and promotion of the Melbourne IT's Managed Affiliate Program and otherwise, as is required for Managed Affiliate's performance of Managed Affiliate's obligations under this Agreement;
3. any alterations to the format of the Marks by Managed Affiliate must only be made with the prior written consent of Melbourne IT;
4. Melbourne IT shall have the right to review the manner in which the Marks are being used and require modifications of such use, as Melbourne IT deems necessary;
5. if at any time, Melbourne IT 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 requiring such modifications, and, in any event, within 7 days of that notice; and
6. 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).

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 Managed Affiliate Program Member".

7.1 HTML Code

Melbourne IT 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 website (co-branded with Managed Affiliate's name).

7.2 Managed Affiliate Contact Number

Melbourne IT agrees to provide a special 1300 telephone number for use by Managed Affiliate's Customers to telephone Melbourne IT (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.

Managed Affiliate represents and warrants to Melbourne IT that:

1. if Managed Affiliate is a company - it is duly incorporated and has the power to own property and to carry on its business; and
2. 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.

9.1 Termination

1. Either Party may terminate this Agreement at any time for any reason upon fourteen (14) days prior written notice to the other Party.
2. 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:
1. 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
2. an Insolvency Event occurs with respect to the other Party.

9.2 Effect of termination

1. Upon termination of this Agreement, Managed Affiliate will cease to be able to participate in the Melbourne IT Managed Affiliate Program or the Melbourne IT Melbourne IT's Managed Affiliate Program. Notwithstanding the foregoing, Melbourne IT agrees that Melbourne IT 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 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).
2. The provisions of Clauses 8, 10 and 11.7 shall survive termination of this Agreement.

10.1 Liability of Melbourne IT

1. 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 under this Agreement (including without limitation their merchantability or fitness for any particular purpose), or regarding this Agreement generally, are expressly excluded.
2. To the extent permitted by law and subject to Clause 10.1(c), Managed Affiliate agrees that Melbourne IT has no liability to the Customer for any loss or damage (whether direct, indirect, consequential, loss of profits or otherwise) the Customer may incur (whether by negligence or fault of Melbourne IT or otherwise) in connection with this Agreement or any action (or inaction) by Melbourne IT in connection with this Agreement (including, without limitation, with respect to any Referred Customer).
3. If any legislation implies in this Agreement a term or warranty and also prohibits Melbourne IT 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's liability under this Agreement for a breach of that term or warranty is limited to, in the sole discretion of Melbourne IT, 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.

10.2 Managed Affiliate Indemnity

Managed Affiliate shall indemnify the Melbourne IT Group from any Loss and Damage threatened, asserted, or filed by a third party against any of the Melbourne IT Group, or arising out of or relating to:

1. any claim by a Customer applying for or registering a domain name through Managed Affiliate, or, obtaining any Service through Managed Affiliate; and/or
2. any breach of this Agreement by Managed Affiliate.

11.1 Entire agreement

This Agreement, including its Schedules:

1. constitutes the entire agreement between the Parties as to its subject matter; and
2. 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:

1. it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
2. that fact does not affect the validity or enforceability of:
1. that provision in another jurisdiction; or
2. the remaining provisions.

11.3 Waiver and exercise of rights

1. 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.
2. A waiver is effective only in the specific instance and for the specific purpose for which it is given.
3. 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.
4. 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. Melbourne IT may assign its rights and obligations under this Agreement to any other Melbourne IT Group Entity by written notice to Managed Affiliate.