|A||WEBCC is an ICANN accredited registrar and provides domain name registration services to users for various Top Level Domains Domains (“TLDs”), including Country Code Top Level Domains (“ccTLDs”) and Generic Top Level Domains (“gTLDs”).|
|B||WEBCC operates a premier partner program which allows authorised participants to promote, market, distribute and sell the Products and Services through a Products and Services Order on WEBCC’s behalf (“Program”).|
|C||The Premier Partner wishes to participate in the Program and the Parties are desirous of working together to provide the Collaborative Services.|
|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:|
|“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 provision of one or more of the Products and Services that the Parties have agreed to jointly provide under the Program;|
|“Confidential Information”||means any and all information and/or documents exchanged between the Parties under the terms of this Agreement, the Program or the Product and Services or incidentally thereto and shall not be limited but to include 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 Products and 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;|
|“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 to be 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. WEBCC may in its sole discretion modify the Interface Tool, or discontinue any part thereof from time to time;|
|“Products and Services”||means the products and services which WEBCC provides through the Program and includes any such other products & services to be introduced by WEBCC from time to time;|
|“Products and Services Order”||means the order form executed by the Parties pursuant to this Agreement in relation to an order made by the Premier Partner under the Products and Services;|
|“Registrant(s)”||means any individual or entity registering a domain name through the Premier Partner;|
|“Specifications and/or Policies”||shall have the meaning as described under the ICANN Registrar Accreditation Agreement;|
|“Trade Marks”||means the registered and/or unregistered trademarks 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; and|
|“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 the Products and Services.|
- 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.
| ||WEBCC and the Premier Partner agree 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 third party during the term of this Agreement.|
|3.1||The terms of this Agreement shall take effect from the Effective Date and shall continue to be in force for a period of one (1) year thereafter (“Initial Term”), unless otherwise terminated by either Party pursuant to Clause 12 of this Agreement.|
|3.2||This Agreement shall be automatically renewed for successive periods of twelve (12) months following the expiry of the Initial Term unless otherwise terminated by either Party pursuant to Clause 12 of this Agreement.|
|4||OBLIGATIONS OF THE PARTIES|
| ||The obligations of the Parties in relation to this Agreement are set out in Annexure 1 hereto.|
|5.1||The Premier Partner shall pay the applicable fees in the form and amounts as described in the Premier Partner’s account for the relevant product or services rendered by the Premier Partner, which shall be deducted from a client’s 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 dispute arising in relation to any payment of fees and/or client account balances, the Party complaining of any discrepancies shall provide to the other Party reasonable supporting documentation to substantiate the dispute and the Parties will cooperate to resolve such dispute.|
|6||USE OF WEBCC’s TRADE MARKS|
|6.1||WEBCC hereby grants to the Premier Partner a non-exclusive, non-transferable, non-sub-licensable, revocable, royalty free licence to the Premier Partner to utilise WEBCC’s 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.|
In relation to the use of WEBCC’s Trade Marks, the Premier Partner shall:
- ensure that WEBCC’s 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 WEBCC”s Trade Marks; and
- ensure that WEBCC’s 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 WEBCC’s Trade Marks and their manner and disposition including the use of WEBCC”s Trade Marks on any accompanying leaflets, brochures or other material, and in any advertising material prepared by or utilised by the Premier Partner.
|6.3||The Premier Partner shall, if requested by WEBCC, submit designs of all printed materials using WEBCC’s Trade Marks to WEBCC for approval as to the appearance, manner and the context of the intended use, of WEBCC”s 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 and agrees that WEBCC’s Trade Marks and WEBCC’s Intellectual Property Rights, 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 WEBCC’s Intellectual Property Rights.|
| ||The Premier Partner will promptly provide WEBCC with up to date, complete and accurate information of the Registrant(s), as required by WEBCC from time to time, and the Premier Partner shall comply with all applicable privacy laws in its collection, maintenance and use of the Registrant(s) information. In the event the Registrant(s) does not want to disclose information, the Premier Partner must engage a local contact service provider nominated by and acceptable to WEBCC. The failure of Premier Partner to comply with any of the foregoing obligations shall be deemed to be a material breach of this Agreement entitling WEBCC to terminate the Agreement immediately.|
|9||RULES, REGULATIONS AND POLICIES|
|9.1||The Premier Partner agrees to be bound by all relevant laws, rules and regulations, WEBCC’s policies and the rules and policies of the relevant registry operator(s).|
The Premier Partner further agrees to be bound by the following additional obligations:
- the Premier Partner is prohibited from displaying ICANN or an ICANN accredited registrar’s logo or WEBCC’s logo, or from otherwise representing itself as accredited by ICANN unless it has written permission from ICANN or WEBCC, as the case may be;
- 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(the policies of which can be found on ICANN’s website at www.icann.org), 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;
- the Premier Partner must identify WEBCC as the sponsoring registrar upon inquiry from a customer if the domain name is under WEBBC sponsorship;
- the Premier Partner must comply with any ICANN adopted Specifications and/or Policies that establishes a program for accreditation of individuals or entities who provide proxy and privacy registration services (a “Proxy Accreditation Program”). Until such time that the Proxy Accreditation Program is established by ICANN, the Premier Partner is required to comply with the Specification on Privacy and Proxy Registration that is attached to ICANN’s Registrar Accreditation Agreement(the agreement of which can be found on ICANN’s website at www.icann.org)
- the Premier Partner shall provide and clearly display a link to ICANN Registrant Rights and Responsibilities document (the document of which can be found on ICANN’s website at www.icann.org) on any website the Premier Partner may operate for domain name registration or renewal at least as clearly as the links to other policies or notifications are required to be displayed under ICANN Consensus Policies (the policies of which can be found on ICANN’s website at www.icann.org), ;
- the Premier Partner shall publish on its website(s) and/or provide a link to the Registrants’ Benefits and Responsibilities Specification attached to ICANN’s Registrar Accreditation Agreement(the agreement of which can be found on ICANN’s website at www.icann.org);
- the Premier Partner shall ensure that the identity and contact information provided by the customer / Registrant(s) 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 / Registrant(s) 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
- the Premier Partner shall report to WEBCC if it is in breach of any of the provisions of this Agreement and in the event WEBCC learns that the Premier Partner is causing WEBCC to be in breach of any of the provisions of ICANN’s Registrar Accreditation Agreement(the agreement of which can be found on ICANN’s website at www.icann.org), WEBCC may require the Premier Partner to immediately take such steps as WEBCC deems necessary for the Premier Partner to comply with this Agreement and the Premier Partner shall promptly cure and prevent further instances of such non compliance.
|10||REPRESENTATIONS AND WARRANTIES|
The Parties hereby represent and warrant to each other that:
- each Party has full power 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
- by entering into this Agreement the Party does not violate any agreement between the Party and any other person or entity.
|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 in entering into this Agreement.|
|10.3||The Premier Partner also undertakes and warrants that it will only use the WEBCC domain registration system for legal and lawful purposes subject to the terms and conditions of this Agreement, WEBCC’s Acceptable Use Policy, and any other relevant policies of WEBCC as may be amended from time to time and in accordance with all applicable laws.|
|10.4||Except as expressly stated in this Agreement, all warranties and conditions, whether expressed 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||WEBCC disclaims any liability resulting from the use of the Products and Services by the Registrant(s) including but not limited to any unlawful, unauthorised or misuse of the Products and Services by the Registrant(s).|
|11.2||The Premier Partner 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 Premier Partner’s representations, warranties, undertakings and obligations 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.|
|11.3||The Premier Partner agrees that WEBCC’s entire liability to Premier Partner, 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.|
|11.4||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|
Either Party may terminate this Agreement with immediate effect if the other Party :
- fails to observe or perform any of its material obligations under the 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 and requesting the defaulting Party to remedy the same; or
- is subject to any action or proceedings, whether administrative or judicial in respect of insolvency, winding-up, dissolution or bankruptcy.
WEBCC shall be entitled to suspend and/or terminate the Premier Partner’s account and/or terminate this Agreement with immediate effect if :
- the Premier Partner causes WEBCC to be in breach of its obligations of the Registrar Accreditation Agreement (the agreement of which can be found on ICANN’s website at www.icann.org);
- the Premier Partner fails to respond to WEBCC’s inquiries and correspondences within the given timelines;
- the Premier Partner is not contactable by WEBCC at its last known address or the contact details furnished to WEBCC;
- WEBCC is of the opinion that the Premier Partner is not in the position to provide quality and timely service to the Registrant(s);
- the Premier Partner uses the Products and Services for any activity that is potentially or actually illegal (such as, but not limited to, phishing and spamming activities);
- the actions or inactions of the Premier Partner damages the reputation of WEBCC;
- the Premier Partner fails to maintain the Premier Partner account according to the required minimum threshold; and/or
- the Premier Partner engages in an activity that misuses or disrupts WEBCC’s network or operations.
|12.3||Where the Premier Partner’s account has been suspended and in the event WEBCC agrees to lift the suspension, the Premier Partner shall be liable to reimburse WEBCC for any costs incurred in this respect.|
|12.4||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 will apply.|
Upon termination of this Agreement:
- the Parties shall, within thirty (30) days from the date of the termination inventories 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, the Parties will immediately cease all use of the Trade Marks, Intellectual Property Rights and Confidential Information of the other Party and return them to the other Party together with 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.
|12.6||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 12, 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.|
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;
- close the dormant account and forfeit all amounts remaining in the account; and/or
- 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.
|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.|