Web Hosting Reseller - Partner Program

WebCentral Pty Limited (ABN 87 084 429 318)

Please read these terms carefully - it is a condition of your being a member of the Partner Program that you comply with them.

Background

These terms and the Acceptable Use Policy ("terms") are the terms and conditions upon which WebCentral Pty Limited ABN 87 084 429 318 ("WebCentral", "we" or "us") will give you access to the services and benefits of the WebCentral Partner Program ("you").

These terms apply only to participation in the Partner Program. The terms on which WebCentral will supply you with web-hosting services and all other services supplied to you by us ("Services") are set out in our online terms and conditions (Shared Services), the terms of our standard Dedicated Web Hosting Contract and Co-location Services Agreement.

These terms apply to you as a user or reseller/supplier of the Services. A member of the WebCentral Partner Program ("Partner Program") is a person or company, which has been allocated a Partner ID by WebCentral. "List Price" means WebCentral's published price list for Services as amended from time to time.

1. Term of Agreement

1.1 Our agreement with you will commence when you accept these terms and conditions and will continue until either of us terminates the agreement by 90 days' written notice to the other, or else as these terms provide.

2. Amendments

2.1 We have the right to make amendments to these terms, the pricing structure applicable to the Partner Program and the Service generally, and the terms of operation of any Service at any time.

2.2 We will post a general notice of amendments on a page of Partner Control. Your use of the Services after publication of a notice of amendments will be an acceptance of those amendments in respect of all Services. If you disagree with amended terms, you may terminate your agreement with us by 90 days notice in writing. You must keep yourself informed of changes to terms of supply by checking Partner Control regularly.

2.3 Where we vary the pricing applicable to Partners, we will give at least 14 days notice of the change, and the new pricing will take effect from the billing period immediately after the end of the notice period of that variation. If you do not accept the variation you may terminate all Services by written notice to WebCentral within 15 days of receiving notice of the varied charge, termination to be effective 90 days after termination notice is given. If you do not give such notice, you will be held to have accepted the varied charge.

3. Services

3.1 We will assign you a Partner ID ("pr number") and password, which will provide you with access to the WebCentral Partner Control panel, which you must use to configure the Partner features of your Service.

3.2 When you order Services from us and when we accept your order, we will assign you, or at your direction, your customer, with a logon name ("VS number") and password which will provide access to the WebCentral Mission Control panel and which must be used by you or your customer to configure the features of the Service.

3.3 You agree that all Services you order from WebCentral will be supplied to you upon the terms of our online terms and conditions (Shared Services), the terms of our standard Dedicated Web Hosting Contract and Co-location Services Agreement. You agree that all Shared services currently supplied by us to you will be provided on the terms of the online terms and conditions (Shared Services), as amended from time to time.

3.4 You agree that WebCentral's Services do not include sale, lease or other grant of the right to possession of web servers or related equipment. All physical equipment used in delivery of the Services will remain the property of and in the possession or control of WebCentral.

3.5 You grant to WebCentral a non exclusive, royalty free license to use, transmit, display, adapt and reproduce all information, data, text, logos, images, audio, movie clips and/or content in any form which constitutes your customers' web sites ("Customer Data"):

• in order to fulfil our obligations under this agreement; and
• for the purpose of providing ongoing Services directly to customers where you become insolvent, cease to operate your business, or
• if you fail to respond for a period of 28 days or more to reasonable attempts to contact you (where you have not given WebCentral prior notice that you will be out of contact).

Upon termination of the customer's agreement with WebCentral the license will terminate. We will delete the Customer Data from our systems within 30 days after termination. You will have no claim against WebCentral in respect of our use of the Customer Data in accordance with this license.

3.6 WebCentral will send you a Partner News email from time to time which will contain business-critical information about your Services. As Partner News is an essential communication, it will not contain an 'unsubscribe' facility. This is in conformity with the Privacy Act and Spam Act.

4. Referral Program

4.1 The provisions of this clause 4 will apply to you if you agree to participate in WebCentral's lead generation/referral service.

4.2 In consideration of WebCentral providing leads or referring potential customers to you, you must recommend WebCentral's Services to those leads or potential customers if those Services are relevant to their requirements. For clarification, this clause does not exclude you from recommending services of other providers to your customers.

4.3 Referrals to Partners will be made in WebCentral's absolute discretion, but as a general guideline, they will be referred in decreasing priority as follows: Gold Partners, Silver Partners and Bronze Partners.

5. Charges and Payment

5.1 You must pay for:

• All charges for the Services (except for bandwidth and excess storage) in advance as notified to you by WebCentral;
• All charges for bandwidth and excess storage monthly in arrears as notified to you by WebCentral;
• Additional products and product upgrades that you order, and domain name registration and delegation charges, at the rates set out on the prices page of the WebCentral partner web site from time to time and if not included on that page, at WebCentral's list standard retail price at the relevant time;
• All Services time charges, minimum charges and other amounts incurred by you or any designated users (including your customers) or incurred as a result of any use of your password (whether authorised or not).

5.2 Members of the WebCentral Partner Program who have agreed to these terms and conditions and otherwise fulfil the criteria set out in the table below will be entitled to acquire Services at the following discounted rates. Monthly gross fee revenue is calculated per Partner ID before GST and GST is payable on the net total after the discount has been applied. For clarity, partners with multiple Partner ID's may not gross up monthly revenue across all ID's to qualify for a higher discount level.

5.3 Partner discounts do not apply to domain name registration charges. A flat rate discount of 10% applies to bandwidth charges, Promotions Manager, DSL services and Outlook SMS. Managed Exchange attracts a variable discount of between 10% and 25%.

5.4 In addition you must provide and pay for:

• the installation and use of telephone lines and all other equipment needed to access the Services; and
• unless expressly stated as included in a price, all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied, such as Add-Ons.

5.5 You must pay all amounts billed in accordance with your billing option, and if no billing option has been selected in the online order form or build sheet, within 14 days of invoice. Billing period is on a monthly cycle beginning when you register. If you register after the 28th of each month, your billing date becomes the first of the next month. If WebCentral omits charges from your invoice in a particular month, we may include those charges in a later invoice.

6. Suspension and Termination

6.1 You may continue to be a member of the Partner Program so long as you are not in breach of these terms or the specific terms of supply applicable to any Service you have contracted for. If you are in breach of either, and (where the breach can be remedied) you have not remedied the breach within seven days after our notice to you, we will have the right to suspend or terminate your participation in the Partner Program and the provision of any or all of your accounts without notice to you or your customers.

6.2 You will remain liable for all amounts owing to WebCentral if we suspend or terminate this agreement for any reason.

6.3 Subject to clause 6.5, you have the right to terminate your participation in the Partner Program by giving not less than 90 days written notice to us. Doing so will not terminate your agreement for supply of Services, which can be terminated only in accordance with the terms of supply of the particular Services.

6.4 Once your participation in the Partner Program has been terminated, from the date of such termination you will no longer be entitled to access to Partner Control and the discounts and other benefits of the Partner Program.

6.5 If WebCentral terminates this agreement pursuant to clause 6.1, or if a receiver, a trustee in bankruptcy, a liquidator, an administrator or other like person is appointed to part or all of your assets or business, then WebCentral may contact your customers without notice to you in order to ensure continued provision of Services to those customers on the basis that they contract and deal directly with WebCentral.

7. Acceptable Use Policy and Privacy Policy

7.1 In accepting these terms and conditions, you also acknowledge that you have read and accepted our Acceptable Use Policy and Privacy Policy on WebCentral's web site as amended from time to time.

7.2 The Acceptable Use Policy and the Privacy Policy form part of these terms and conditions. Failure to abide by either policy will constitute a breach of these terms and conditions, and will give rise to our right to terminate or suspend the Services, as set out in clause 6.1 above.

7.3 You are responsible for the use of the Services ordered through your Partner ID and you must ensure that your customers and any other person using the Service though your Partner ID also complies with our terms and conditions of supply of Services, the Acceptable Use Policy and the Privacy Policy, and any other instructions that WebCentral gives you from time to time.

7.4 You must comply with any rules imposed by any third party whose content or service you access using the Service.

8. Limitation of liability

8.1 Unless expressly provided in this agreement, we make no warranty to any person in relation to any Services provided except those warranties which cannot be specifically excluded under the Trade Practices Act 1974. To the extent that the warranties implied under the Trade Practices Act apply to the provision of any Services, if at all, then our liability for any loss arising as a result of the provision of any Services, including economic or consequential loss which may be sustained or incurred, is limited at our election to:

• the supply of the Services again; or
• the payment of the cost of having the Services supplied again.

8.2 We have no responsibility for, or liability in relation to, any person accessing data on your sites or (if you are a reseller) your customers' sites.

8.3 You are primarily responsible for communicating any and all issues concerning the Services and accounts to your customers. We may provide information directly to your customers in some circumstances including but not limited to the following: if you are not contactable by your customer within a reasonable period of time; if your account is locked due to non-payment; or in respect of domain names.

8.4 Other than where clause 8.1 applies, in all other respects WebCentral will have no liability to you pursuant to this agreement for all loss or damage, howsoever arising.

9. Indemnity

You agree that you will indemnify us and will keep us indemnified against any loss or damage of any kind, which we may suffer (whether directly or indirectly) as a result of any:

• breach by you or, if you are a reseller of the part or all of the Services, breach by any of your customers, of any of these terms and conditions, including without limitation the Acceptable Use Policy and the Privacy Policy;
• breach by you or, if you are a reseller of the Services, breach by any of your customers of the contractual or civil legal rights of others, or of any law, guideline, policy or code of conduct;
• claim by a third party regarding your performance or non-performance of your obligations under these terms and conditions or otherwise;
• claim by a third party in respect of Customer Data, howsoever arising; or
• if you are a reseller of the Services, claim by any of your customers against you or us in respect of any matter.

10. Assignment of rights

10.1 You are not permitted to assign any of your rights under these terms and conditions to any other party without our prior written consent. For these purposes, an assignment will also be deemed to have occurred if there is a change in effective control of your business or company. We will reasonably determine what constitutes an "effective change in control".

11. Reseller obligation

11.1 If you are a reseller of the Services you must procure that any customers that you have enter into terms and conditions in substantially the same form as these terms and conditions (including the Acceptable Use Policy and Privacy Policy), along with the Standard Terms and Conditions of Supply of Services or the Terms and Conditions of Supply of Dedicated Services (as relevant), both of which are located on the WebCentral web site.

11.2 You must ensure that your customers comply with the above terms and conditions. If your customers do not do so, and this results in any loss or damage being suffered by us, you agree to indemnify us for any such loss or damage.

11.3 In order to remain on the Partner Program, you must:

• maintain at least one full-paying web hosting or Managed Services account with WebCentral;
• meet WebCentral's credit checking requirements; and
• exhibit consistent reselling of WebCentral products and services in an ongoing manner over time. In any given six-monthly period, you must resell a minimum value of $100 (List Price). This excludes Domain Parking accounts.

11.4 If you cease reselling WebCentral products and services for a period longer than six months, or fail to satisfy the requirements set out in clause 11.3, WebCentral reserves the right to cancel your membership of the Partner Program and the benefits associated with it.

11.5 If you have no billing customer accounts under your Partner ID for a period longer than 12 months, WebCentral reserves the right to cancel your membership of the Partner Program and the benefits associated with it.

12. Privacy and Credit consent

12.1 You authorise us to obtain from and give to credit reporting agencies and other credit providers certain information about you so that we may manage your account with us. This information may include personal details such as your name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. We reserve the right to refuse your application for, monitor ongoing usage of, or restrict your access to the Services on the basis of our assessment of credit information relating to you. You are entitled to see and correct any credit information we hold about you.

12.2 You also authorise us to exchange information about you and your account with us to our suppliers, agents and contractors, and use that information for account management and business planning.

13. Location of and access to servers

13.1 You agree that in providing the Services we may elect in our absolute discretion to provide those Services from a server located in any one of the data centres, which we operate, either now or in the future. We may relocate the servers used to supply the Service to you and your customers upon 14 days notice to you. We will use our reasonable endeavours to minimise downtime, however you will have no claim against WebCentral in respect of reasonable downtime in supply of the Services caused by migration of servers between data centres.

13.2 WebCentral's data centres are not accessible to customers unless by prior appointment at a time suitable to WebCentral. Visitors will be accompanied at all times by a WebCentral employee and must comply with all directions of that employee in respect of conduct in the data centres. WebCentral reserves the right in its absolute discretion to refuse requests to visit its data centres.

14. General

14.1 We reserve the right to change the addresses of the URLs listed in this agreement.

14.2 We may sublicense, assign or otherwise delegate all or any of our rights and obligations under this agreement.

14.3 The law of Queensland will govern these terms and conditions.

14.4 We may pay a commission to a person who introduced you to the Service.

© WebCentral Pty Limited