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WHEREAS: |
A |
WEBCC provides domain name registration services to users for various Top Level Domains (“TLDs”), including Country Code Top Level Domains (“ccTLDs”) and Generic Top Level Domains (“gTLDs”) and is an ICANN accredited registrar. |
B |
WEBCC operates a premier partner program which allows authorised participants (“Premier Partner(s)”) to promote, market, distribute and sell certain products and services on its behalf (“Program”). |
C |
Pursuant thereto, the Premier Partner has expressed its intent to participate in the Program and to work together to provide the Collaborative Services (as defined herein). |
D |
The parties have therefore agreed to enter into this Agreement to regulate their respective rights, duties and obligations, upon the terms and subject to the conditions herein contained. |
1 |
DEFINITIONS & INTERPRETATION |
1.1 |
Where the context so admits in this Agreement the following words shall have the meaning as defined herein:
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| "Agreement" |
means this Premier Partner Agreement including its schedules and attachments as may be amended from time to time; |
| "Business Day" |
means any day, other than a Saturday or Sunday or gazetted public holiday in Malaysia; |
| “Collaborative Services” |
means the services that the parties have agreed to jointly provide under this Agreement as set out in Annexure 1 and as amended from time to time by mutual agreement between WEBCC and the Premier Partner; |
| “Confidential Information” |
means all specifications, records, data, computer programs, drawings, schematics, notices, models, reports, samples, know-how, trade secrets, ideas, concepts, technical and operational information, arising or used in connection with the Services and other information which by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; |
| "Effective Date" |
means the date at which the Premier Partner indicates acceptance of the terms and conditions of this Agreement by checking the consent box at the end of this Agreement as recorded by WEBCC; |
| “Force Majeure” |
means any cause beyond a party’s reasonable control affecting the performance by the affected party of its obligations hereunder including, but not limited to, acts of God, riots or civil disorder, war or military operations, national or local emergency, acts or omissions of government, industrial disputes of any kind (not involving the affected party’s own employees), fire, flood, lightning, explosion, subsidence, inclement weather and acts or omissions of persons or bodies beyond the reasonable control of the said party; |
| “Intellectual Property” |
means any patent, trade mark, copyright and/or design rights (and any application for any of the foregoing), as well as any rights in respect of any confidential information, trade secrets or proprietary information or any other intellectual and industrial property rights, whether existing or in created in the future, and whether or not registered or registrable; |
| "ICANN" |
means the Internet Corporation for Assigned Names and Numbers having its website at www.icann.org; |
| "Interface Tool" |
means the tool provided by WEBCC to the Premier Partner to register domain name(s) on the internet. The tool may include, but is not limited to, Java-based application program interface or an XML-based application program interface, EPP (Extensible Provisioning Protocol) and the proprietary “Web Panel” interface as may be modified by WEBCC from time to time; |
| “Products and Services” |
means the products and services to be marketed, sold, distributed and/or used by the Premier Partner via a Products and Services Order; |
| “Products and Services Order” |
means the order issued pursuant to this Agreement by which an order for the Products and Services is made by the Premier Partner, and shall only be valid if it is fully executed by both WEBCC and the Premier Partner; |
| “Registrant(s)” |
means any individual or entity registering a domain name through the Premier Partner; |
| “Trade Marks” |
means the registered and/or unregistered trade marks and/or service marks owned by a particular party and/or such other marks, names, signs or indicia of origin as may be utilized by the said party from time to time, and “Trade Mark” shall refer to such one of them as the case may be; |
| “WEBCC Marks” |
means those registered and/or un-registered trademarks, service marks and logos of WEBCC that are provided to the Premier Partner for the limited purpose of promoting WEBCC’s Products and Services. |
1.2 |
Interpretation
- Words importing the singular number include the plural and vice versa.
- Words importing the masculine gender include the feminine and neuter genders and vice versa.
- The headings and sub-headings in this Agreement are inserted for convenience only and are to be ignored when construing the provisions of this Agreement.
- References herein to clauses and paragraphs are references to clauses and paragraphs of this Agreement unless otherwise specified.
- Words applicable to natural persons include any body corporate or unincorporated, persons, institute, corporation, firms or partnerships corporate or otherwise and vice versa.
- The Annexures to this Agreement constitutes an integral part of this Agreement and shall have the same force and effect as if set out in the body of this Agreement.
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2 |
EXCLUSIVITY |
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WEBCC and the Premier Partner agrees that they are not bound exclusively by this Agreement and that the terms of this Agreement shall not preclude any party from entering into similar arrangements with any other parties during the term of this Agreement. |
3 |
TERM |
3.1 |
This Agreement shall take effect from the Effective Date and shall continue in force for a period of one (1) year thereafter, unless this Agreement is sooner terminated by either party pursuant to Clause 11 (“Initial Term”). |
3.2 |
This Agreement shall be automatically extended for successive periods of twelve (12) months following the expiry of the Initial Term unless earlier terminated by either party pursuant Clause 11 of this Agreement. |
4 |
OBLIGATIONS OF THE PARTIES |
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The obligations of the parties in relation to the Collaborative Services are set out in Annexure 1 hereto. |
5 |
CONSIDERATION FOR COLLABORATIVE SERVICES |
5.1 |
In consideration of WEBCC appointing the Premier Partner as a participant in the Program and providing to the Premier Partner the services contained in Annexure 1 the Premier Partner shall provide consideration in the form and amounts as described in the particular reseller account for the relevant services rendered, which shall be deducted from a client account established with and held by WEBCC subject to the terms and conditions related thereto for the time being enforced. |
5.2 |
In the event of any disputes arising in relation to fee payment and/or client account balances, the party complaining of any discrepancies shall provide the other party with reasonable supporting documentation to substantiate such dispute and the parties will cooperate to resolve such dispute with either party entitled to escalate such dispute to the dispute resolution process as set out in Clause 24.2. |
6 |
USE OF TRADE MARKS |
6.1 |
WEBCC hereby grants a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty free licence to the Premier Partner to utilise its Trade Marks during the term of this Agreement in connection with the Collaborative Services and nothing in this Agreement shall transfer ownership in the Trade Marks which shall at all times be owned by WEBCC. |
6.2 |
In relation to the use of WEBCC’s Trade Marks, the Premier Partner shall:-
- ensure that the Trade Marks are used in the manner specified by WEBCC from time to time and solely in connection with the Collaborative Services;
- ensure compliance with such specifications and standards as WEBCC shall provide from time to time in relation to the use of the Trade Marks; and
- ensure that the Trade Marks are used only in the form stipulated by WEBCC and shall observe any reasonable directions given by WEBCC as to colours and size of the representations of the Trade Marks and their manner and disposition including the use of Trade Marks on any accompanying leaflets, brochures or other material, and in any advertising material prepared by or utilised by the Premier Partner.
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6.3 |
The Premier Partner shall, if requested by WEBCC, submit designs of all printed materials using the Trade Marks to WEBCC for approval as to the appearance, manner and the context of the intended use, of the Trade Marks. |
7 |
INTELLECTUAL PROPERTY RIGHTS |
7.1 |
The parties hereby acknowledge and agree that any Intellectual Property Rights owned by one party shall continue to be owned by such party, or its third party licensors, as the case may be, and the execution of this Agreement, except as specifically mentioned herein, shall not in any way be construed to have transferred all or any part of such rights to the other party. |
7.2 |
The parties agree that each Party retains full and exclusive Intellectual Property Rights and ownership in any and all letters patent, inventions, software, algorithms, know-how, Trade Marks, copyrights and trade secrets, and any other proprietary rights which the Party currently possesses, or has developed independently pursuant to this Agreement. |
7.3 |
The Premier Partner acknowledges that WEBCC’s Trade Marks and Intellectual Property, and the goodwill associated therewith, are valuable properties belonging to WEBCC and shall remain the sole and exclusive property of WEBCC. |
7.4 |
The Premier Partner shall not either now or in the future contest or challenge the validity and/or ownership rights of any of WEBCC’s Trade Marks or Intellectual Property. |
8 |
REGISTRANT INFORMATION |
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The Premier Partner agrees that all information or data in relation to the Registrants collected by the Premier Partner in carrying out and/or providing the Collaborative Services shall belong to WEBCC. |
9 |
RULES, REGULATIONS AND POLICIES |
9.1 |
The Premier Partner agrees to be bound by all relevant national and international laws, rules and regulations, WEBCC’s policies and the rules and policies of the relevant registry operator(s). |
9.2 |
The Premier Partner further agrees to be bound by the following terms and policy:
- the Premier Partner is prohibited from displaying the ICANN or WEBCC’s logo, or from otherwise representing itself as accredited by ICANN unless it has written permission from ICANN to do so;
- any registration used by the Premier Partner shall include all registration agreement provisions and notices required by the ICANN Registrar Accreditation Agreement (the agreement of which can be found on ICANN’s website at www.icann.org) and any ICANN Consensus Policies, and shall identify the sponsoring registrar or provide a means for identifying the sponsoring registrar, such as a link to the InterNIC Whois lookup service;
- c. provide a link on Registrant Rights and Responsibilities document on any website it may operate for domain name registration or renewal clearly displayed to their Registered Name Holders at least as clearly as their links to policies or notifications required to be displayed under ICANN Consensus Policies;
- the Premier Partner shall ensure that the identity and contact information provided by the customer / Registrant of any privacy or proxy registration service offered or made available by the Premier Partner in connection with each registration will be deposited with WEBCC or held in escrow or, alternatively, display a conspicuous notice to such customers / Registrants at the time an election is made to utilize such privacy or proxy service that their data is not being escrowed. Where escrow is used, the escrow agreement will provide, at a minimum, that data will be released to WEBCC in the event the Premier Partner breaches this Agreement, and such breach is harmful to consumers or the public interest. In the event that ICANN makes available a program granting recognition to the Premier Partner that escrow privacy or proxy registration data as detailed above, and the Premier Partner meets any other criteria established by ICANN in accordance with its Bylaws, the Premier Partner shall be permitted to apply to ICANN for such recognition; and
- to the extent WEBCC is obligated to provide a link to an ICANN webpage, as detailed in subsection 3.15 of the ICANN Registrar Accreditation Agreement, the Premier Partner shall also be under an obligation to provide such linkage.
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10 |
REPRESENTATIONS AND WARRANTIES |
10.1 |
Each of the parties hereby warrants and represents to the other that:-
- it has full capacity and authority to enter into and to perform and observe its obligations under this Agreement;
- all such obligations shall be performed diligently and with reasonable skill and care; and
- entering into this Agreement does not violate any agreement between it and any other person or entity.
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10.2 |
The Premier Partner further warrants that all information provided by the Premier Partner prior to the execution of this Agreement is true and accurate, and the Premier Partner acknowledges and agrees that WEBCC has relied on such information provided in entering into this Agreement. |
10.3 |
The Premier Partner also warrants that it will use the WEBCC domain registration system for legal and lawful purposes and is subject to the terms and conditions of this Agreement and any other relevant rules and policies of WEBCC as may be amended from time to time and in accordance with all applicable national and international laws and regulations. |
10.4 |
Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including, but not limited to, fitness for purpose) as to performance, quality, title and otherwise in connection with the obligations of the parties hereunder are hereby excluded to the extent permitted by law. |
11 |
INDEMNITY AND LIMITATION OF LIABILITY |
11.1 |
The Premier Partner undertakes to WEBCC that they shall indemnify, and keep WEBCC indemnified from and against all claims, damages, liabilities, deficiencies, penalties, losses, costs, expenses (including without limitation, legal fees and disbursements on a full indemnity basis) which WEBCC may suffer, incur or sustain as a result of or in consequence of or in relation to any breaches of any of its representations, warranties, undertakings and terms contained in this Agreement and/or claims from third parties resulting from the provision of the Collaborative Services by the Premier Partner or arising under or relating to the Premier Partner’s performance of this Agreement. |
11.2 |
The Premier Partner agrees that WEBCC’s entire liability, and the Premier Partner’s sole remedy, arising out of this Agreement, shall not exceed the amount of fees and/or charges received by WEBCC from the Premier Partner, during six (6) months preceding the date on which the cause of action had arisen under this Agreement. |
11.3 |
In no event shall WEBCC be liable for any indirect, incidental or consequential damages or loss of profits or revenues whether foreseeable or not, however caused, arising out of or in connection with the performance or non-performance of this Agreement. |
12 |
SUSPENSION AND TERMINATION |
12.1 |
In the event:
- either party fails to materially observe or perform any of its material obligations under this Agreement and, in the case of a failure which is capable of being remedied, such failure is not remedied within thirty (30) days after written notice to the defaulting party informing the defaulting party of the failure is received by the defaulting party; or
- steps are taken for the winding-up of either party (unless the winding-up is for the purposes of and followed by a reconstruction) and the winding-up proceedings are unsuccessfully opposed,
then, the party not in default or not subject to winding-up proceedings, may at any time by notice in writing to the other party immediately terminate this Agreement. |
12.2 |
WEBCC shall be entitled to suspend and/or terminate the Premier Partner’s account and/or terminate this Agreement by giving the Premier Partner fourteen (14) days notice in writing in the event:
- the Premier Partner fails to respond to WEBCC’s inquiries and correspondences within the given timelines (provided they are reasonable); or
- the Premier Partner is not contactable by WEBCC at its last known address and contact details; or
- WEBCC is of the opinion that the Premier Partner is not in the position to provide quality and timely service to the Registrants; or
- the WEBCC domain registration system is used for any illegal activities, such as phishing and spamming activities.
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12.3 |
The Premier Partner shall be entitled to terminate this Agreement without cause by giving WEBCC sixty (60) days notice in writing. In the event of such termination, the Refund Policy (which can be found here) will apply. |
12.4 |
Upon termination of this Agreement:
- the parties shall, within thirty (30) days from the date of the termination inventorise and return those assets and equipment that belong to one another for the purposes of facilitating the rights of the parties under this Agreement;
- for any reason whatsoever, both parties will immediately cease all use of the Trade Marks, Intellectual Property and Confidential Information of the other party and return them to the other party including all other materials pertaining thereto;
- for any reason whatsoever, the parties shall enter into a new agreement governing the provisions of any Intellectual Property Rights jointly owned by both parties as part of the Collaborative Services under this Agreement; and
- subject as otherwise provided herein and to any rights or obligations which have accrued prior to termination, neither Party shall have any further obligation to the other under this Agreement nor shall either Party be liable to the other for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales in connection to this Agreement.
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12.5 |
The parties shall at all times act in good faith in the resolution of any dispute, controversy or claim arising under this Agreement. Prior to terminating this Agreement pursuant to this Clause, the parties agree that they shall discuss and negotiate in good faith all possible and reasonable means to resolve the issues leading up to Termination and attempt to resolve such issues expeditiously and in good faith. |
13 |
DORMANT ACCOUNTS |
13.1 |
In the event a Premier Partner’s client account with WEBCC remains dormant, i.e. no transaction is made on the account, for twelve (12) months consecutively, WEBCC shall be entitled to:
- terminate this Agreement immediately with notice to the Premier Partner; and
- close the dormant account and forfeit all amounts remaining in the account; and
- transfer all existing domain names under the Premier Partner’s account to WEBCC and/or any other Premier Partners appointed by WEBCC as it deems fit.
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14 |
CONFIDENTIALITY |
14.1 |
Each party shall keep in strict confidence and not disclose, and shall procure that its related companies, directors and employees keep in strict confidence and shall not disclose, the contents of this Agreement and shall not use any Confidential Information communicated to it by or acquired from the other party in connection with or pursuant to this Agreement, other than strictly for the purposes of this Agreement and its performance. |
14.2 |
The provisions of this Clause shall not apply to Confidential Information which the party concerned can prove was in its possession on the date of receipt or which becomes public knowledge (except by reason of default of such party) or which such party obtains from some other person not obligated under this Agreement and not in confidence and in good faith. |
14.3 |
Notwithstanding the foregoing provisions of this Clause:
- each party shall have the right to disclose the contents of this Agreement and any Confidential Information to any of its shareholders and professional advisers provided it shall first have obtained a confidentiality undertaking from the disclosee in terms substantially similar to those contained in this Clause; and
- each party shall be at liberty to disclose Confidential Information where and to the extent that such disclosure is properly made pursuant to and in accordance with a relevant statutory obligation or properly required by a relevant governmental or regulatory authority.
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14.4 |
Whenever requested by WEBCC, the Premier Partner shall immediately return to WEBCC all manifestations of the Confidential Information or, at WEBCC’s request, destroy all such Confidential Information as WEBCC may designate. |
14.5 |
The Premier Partner’s obligation of confidentiality under Clause shall survive the termination of this Agreement for a period of five (5) years from the date of termination. |
15 |
FORCE MAJEURE |
15.1 |
Any delay or failure to perform an obligation under this Agreement by either party shall not constitute a breach of this Agreement to the extent that it is caused by an event of Force Majeure. |
15.2 |
The party so affected by an event of Force Majeure shall promptly notify the other in writing of the estimated extent and duration of the inability to perform its obligations. |
15.3 |
Upon the cessation of the event of Force Majeure, the party so affected shall promptly notify the other in writing of such cessation. |
16 |
ASSIGNMENT AND SUB-CONTRACTING |
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This Agreement is personal to the parties hereto and neither party shall, without the prior consent in writing of the other, assign, charge or otherwise deal with the whole or any part of this Agreement or its rights or obligations hereunder. |
17 |
PUBLICITY |
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Neither party shall, without the prior approval in writing of the other (such approval not to be unreasonably withheld), directly or indirectly make any release or statement to the press, radio, television or other media in any way connected with this Agreement. |
18 |
WAIVER |
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Failure by either party at any time to enforce any of the provisions of this Agreement shall neither be construed as a waiver of any rights or remedies hereunder nor in any way affect the validity of this Agreement or any part of it. No waiver shall be effective unless given in writing and no waiver of a breach of this Agreement shall constitute a waiver of any antecedent or subsequent breach. |
19 |
SEVERABILITY |
19.1 |
The invalidity or unenforceability for any reason of any part of this Agreement shall not prejudice or affect the validity or enforceability of the remainder of this Agreement. |
19.2 |
If further lawful performance of this Agreement or any part of it shall be made impossible by the final judgment or final order of any court of competent jurisdiction, commission or government agency or similar authority having jurisdiction over either party, the parties shall forthwith use their reasonable endeavours to agree amendments to this Agreement so as to comply with such judgment or order. |
20 |
VARIATION |
20.1 |
The parties hereto agree that the parties may at any time during the term of this Agreement vary, modify and/or supplement the terms in relation to the Products and Services by way of a Products and Services Order. |
20.2 |
Any modification to the scope of the products and/or services pursuant to any Products and Services Order issued hereunder shall only be effective upon an amendment to such Products and Services Order executed by both parties. Where multiple amendments to any given Products and Services Order have been executed, the last dated and executed amendment shall govern the rights and obligations of the parties, and any previously executed amendments to such Products and Services Order shall thereby be superseded. |
20.3 |
Any proposed variation to this Agreement by WEBCC shall be posted prominently on WEBCC’s website at least thirty (30) days before the date at which the proposed variations will take effect. Premier Partners are advised to periodically check WEBCC’s website (www.webnic.cc) for updates and/or proposals for variation. Acceptance of the varied terms and conditions shall be deemed to have occurred once the respective Premier Partner checks on the consent box that will appear on the Interface Tool on the date at which the proposed variations take effect. |
21 |
ENTIRE AGREEMENT |
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This Agreement constitutes the entire understanding between the parties relating to the particular subject matter and supersedes any previous agreements, understandings or commitments between the parties or representations made by either party whether oral or written with respect thereto. |
22 |
NO PARTNERSHIP |
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Nothing herein shall be deemed to constitute a partnership or joint venture between the parties or to constitute one party the agent of the other for any purpose whatsoever and neither party shall have the authority to bind the other party without prior written consent of the other party. |
23 |
NOTICES |
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All notices, requests, demands and other communications required or permitted by this Agreement shall be in writing in the English language and (a) delivered by messenger, (b) transmitted by telecopier; (c) delivered by a reputable international courier service, with courier charges paid or payable by the sender; or (d) by electronic mail to the recipients’ last known address. |
24 |
GOVERNING LAW, DISPUTES AND ARBITRATION |
24.1 |
This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted and construed in all respects in accordance with the laws of Malaysia. |
24.2 |
Any dispute, controversy or claim arising out of or relating to this contract that cannot be settled in good faith through negotiations between the parties, or the breach, termination or invalidity thereof, shall be decided by arbitration in Kuala Lumpur in accordance with the Rules for Arbitration of the Regional Centre for Arbitration Kuala Lumpur. Unless agreed otherwise by the parties, the number of arbitrators shall be one (1), whom shall be jointly appointed by the Parties, failing agreement which, the arbitrator shall be appointed by the Director of the Regional Centre for Arbitration Kuala Lumpur.
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