This Agreement contains the complete terms and conditions
that apply to your participation in the HostingBay.com.au
Reseller Program, and the establishment of links from your
Web site to the HostingBay.com.au Web site. As used in this
agreement, "you" means (and "your" refers
to) the applicant seeking to participate hereunder in the
Reseller Program, "we" means (and "us",
"our" and "ours" refer to) HostingBay.com.au,
a division of Hitech United Australia Pty. Ltd., and "Product"
means any and all items offered for sale by us on the HostingBay.com.au
Web site.
This is a legal agreement between you
and HostingBay.com.au. By entering your Initial on the application
form, you agree that (a) You have read this agreement and
understand all of it's contents and (b) You will be bonud
by all of the terms and conditions in this agreement.
1. Enrolment in the Program.
To begin the enrolment process, you will submit a complete
Reseller Program Application via our Web site. We will evaluate
your application in good faith and will notify you of your
acceptance or rejection. We may reject your application if
we determine, in our sole discretion, that your site is unsuitable
for the Reseller Program for any reason, including, but not
limited to; If your site incorporates images or content that
is in any way unlawful, harmful, threatening, defamatory,
obscene, harassing or racially, ethically or otherwise objectionable
such as sites that: depict sexually explicit images; promote
violence; promote discrimination based on race, sex, religion,
nationality, disability, sexual orientation, or age; promote
illegal activities or incorporates any materials which infringe
or assist others to infringe on any copyright, trademark or
other intellectual property rights (collectively "Content
Restrictions"). HostingBay.com.au may accept or reject
any application and is not required to specify a reason.
2. Promotion of our Affiliate Relationship.
As an Affiliate Site, we will make available to you banners,
button links and/or text links to our site, containing the
HostingBay.com.au logo and words identifying the products
or promotions on our site (each of these links sometimes being
referred to herein as "Links" or, individually,
as a "Link"), which you may display as often and
in as many areas on your site as you desire, subject to the
terms and conditions hereof. The Links identify your site
as a member of our Reseller Program and establish a link from
your site to ours.
3. Using our Links on Your Site.
You agree that you will cooperate fully with us in order to
establish and maintain such Links. We recommend that you display
the links prominently on all relevant areas of your site to
maximize the traffic through your links to our site. You shall
not alter, modify or expand the Links in any way without our
prior written consent. No Link from your site to ours may
be constructed so as to alter the look, feel, or functionality
of our site. We may, in our sole discretion, check your site
at any time to determine if you are in compliance with the
terms of this Agreement. We will provide all information necessary
to allow you to make appropriate Links from your site to our
site. All such Links must be approved by us.
4. Order Processing. We will process orders placed by customers
who follow the Links from your site to the HostingBay.com.au
site. We reserve the right to reject orders that do not comply
with any requirements which we may establish. We will be solely
responsible for all aspects of order processing and fulfillment,
including order entry, payment processing, cancellations,
refunds and related customer service. We will track the volume
and amount of sales generated by your site and will make unaudited
reports summarizing this sales activity available to you through
our site. The form, content, and frequency of the reports
may vary from time to time at our discretion. To permit accurate
tracking, reporting and fee accrual, you must ensure that
the Links between your site and our site are properly formatted.
5. Referral Payment
a. For every new account that we track as being referred
from your links or Affiliate ID, HostingBay.com.au will pay
you an 50% referral fee for the life of the account.
b. Referral credit is given to Affiliates once the referral
successfully completes our sign up procedure, however payments
are made only for "Qualified Referrals". Payment
of the accumulated commission will be processed approximately
3 weeks after Hostingbay.com.au receives and successfully
processes the payment for which the commission is to be paid.
A "Qualified Referral" is defined as an active client
using HostingBay.com.au hosting service, from which account
payment has been received with no billing-related problems.
c. Affiliates are paid once monthly by direct transfer to
your nominated Bank Account. Payment will only be processed
when your accumulated commisssion is $50 or more. Balances
less than $50 will be carried forward monthly until a balance
of at least $50 is reached. If the balance of accumulated
commission remains at less than $50 for 12 months, HostingBay.com.au
will pay out the amount you are entitled to.
8. Policies and Pricing.
You may not include price information in your descriptions
because price changes may affect items that you already have
listed on your site. Customers who buy Products through the
Reseller Program will be deemed to be customers of HostingBay.com.au.
Accordingly, all HostingBay.com.au rules, policies, and operating
procedures concerning customer orders, customer service, and
sales will apply to those customers. We may change our policies
and operating procedures at any time. For example, we will
determine the prices to be charged for Products sold under
the Reseller Program in accordance with our own pricing policies.
Product prices and availability may vary from time to time.
We will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the availability or price
of any particular Product.
9. Non-exclusive Limited License and Use of HostingBay.com.au
Logos and Trademarks.
We grant you a non-exclusive, non-transferable, revocable
right to access our site through links solely in accordance
with the terms of this Agreement, and to use our logos, trade
names, trademarks and similar identifying material (collectively
"Licensed Material") solely in connection with such
links to promote HostingBay.com.au and our products on your
site. You may not alter, modify or change the Licensed Material
in any way. You are only entitled to use the Licensed Material
to the extent you are a member in good standing of the Reseller
Program.
You shall not make any use of any Licensed Material for purposes
other than selling Products for HostingBay.com.au, without
first submitting a sample of such use to us and obtaining
our prior written consent. You agree not to use the Licensed
Material in any manner that is disparaging or that otherwise
portrays HostingBay.com.au in a negative light. We reserve
all of our rights in the Licensed Material, and all other
intellectual property rights. We may revoke the rights granted
to you pursuant to this agreement at any time by giving you
written notice. You shall obtain no rights in and/or to the
Licensed Material. The rights granted to you pursuant to this
section shall terminate at any time at our sole discretion.
10. Non-exclusive Limited License and Use of Affiliates
Logos and Trademarks.
We intend to promote our Affiliates who are hosted by HostingBay.
For that and other promotion that we may provide at our discretion,
you grant to us a non-exclusive license to utilize your names,
titles, logos, and trademarks and you hereby represent and
warrant that you have the right and power to grant to us the
license to use same in the manner contemplated herein, and
such grant does not or will not breach, conflict with, or
constitute a default under any agreement or other instrument
applicable to you or binding upon you; or infringe upon any
trademark, trade name, service mark, copyright, or other proprietary
right of any other person or entity. Our rights to use these
marks will expire when we terminate this Agreement.
11. Obligations Regarding Your Site.
You will be solely responsible for the development, operation
and maintenance of your site and for all materials that appear
on your site. You hereby represent and warrant to us that
materials posted on your site do not violate or infringe upon
the rights of any third party, and that materials posted on
your site are not libelous or otherwise illegal. We disclaim
all liability for all such matters. Further, you will indemnify
and hold us harmless from all claims, damages, and expenses
relating to the development, operation, maintenance, and contents
of your site.
12. Term of the Agreement.
The term of this Agreement will begin upon our acceptance
of your Reseller Program Application and will end when terminated
by either party. Either party may terminate this Agreement
at any time, with or without cause, by giving the other party
notice of termination. You are only eligible to earn a commission
on sales occurring during the term of the Agreement, and commissions
earned through the date of termination will remain payable
only if the related orders are not cancelled or returned.
We reserve the right to withhold your final payment for up
to six weeks to allow all accounting procedures to be finalised.
13. Modification.
We may modify any of the terms and conditions contained in
this Agreement at any time and in our sole discretion. Sending
an email containing notice of any change or a new agreement
to your email address that is in our records, or posting such
notice on our site shall be sufficient notice to you of such
modification to the terms and conditions of this Agreement
and you shall be bound from that date to the terms of the
modified agreement. Modifications may include, but are not
limited to, changes in the scope of available commission fees,
commission schedules, payment procedures and Reseller Program
rules. If any modification is unacceptable to you, your sole
recourse is to terminate this Agreement. Your continued participation
in the Reseller Program following our posting of a change
notice or a new agreement on our site will constitute binding
acceptance of the change. Except for any such modifications,
this agreement constitutes the sole and entire agreement of
the parties.
14. Relationship of Parties.
You and HostingBay.com.au are independent contractors, and
nothing in this Agreement will create any legal partnership,
joint venture, agency, franchise, sales representative or
employment relationship between the parties. You will have
no authority to make or accept any offers or representations
on our behalf. You will not make any statement, whether on
your site or otherwise, that might conflict with any of Hostingbay's
stated policies or offers.
15. Disclaimers.
We make no express or implied warranties or representations
with respect to the Reseller Program or any Product or other
items sold through the Reseller Program (including, without
limitation, warranties of fitness, merchantability, non-infringement,
or any implied warranties arising out of course of performance,
dealing, or trade usage). In addition, we make no representation
that the operation of our site will be uninterrupted or error-free,
and we will not be liable for the consequences of any interruptions
or errors.
16. Representations and Warranties.
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered
by you and constitutes your legal, valid and binding obligation,
enforceable against you in accordance with its terms.
b. The execution, delivery and performance by you of this
Agreement and the consummation by you of the transactions
contemplated hereby will not, with or without the giving of
notice, the lapse of time, or both, conflict with or violate:
any provision of law, rule, or regulation to which you are
subject; any order, judgment, or decree applicable to you
or binding upon your assets or properties; any provision of
your by-laws or certificate of incorporation, or any agreement
or other instrument applicable to you or binding upon your
assets or properties.
c. No consent, approval, or authorization of, or exemption
by, or filing with, any governmental authority or any third
party is required to be obtained or made by you in connection
with the execution, delivery, and performance of this Agreement
or the taking by you of any other action discussed herein.
d. There is no pending or, to the best of your knowledge,
threatened claim, action, or proceeding against you, or any
affiliate of yours, with respect to the execution, delivery,
or consummation of this Agreement, or with respect to your
trademarks, and, to the best of your knowledge, there is no
basis for any such claim, action or proceeding.
17. Confidentiality.
Except as otherwise provided in this Agreement or with the
consent of the other party hereto, each of the parties hereto
agrees that all information including, without limitation,
the terms of this Agreement, business and financial information,
customer and vendor lists, and pricing and sales information,
concerning us or you, respectively, or any of our affiliates
provided by or on behalf of any of them shall remain strictly
confidential and secret and shall not be utilized, directly
or indirectly, by such party for its own business purposes
or for any other purpose except and solely to the extent that
any such information is generally known or available to the
public through a source or sources other than such party hereto
or its affiliates. Notwithstanding the foregoing, each party
is hereby authorized to deliver a copy of any such information
(a) to any person pursuant to a subpoena issued by any court
or administrative agency, (b) to its accountants, attorneys,
or other agents on a confidential basis, and (c) otherwise
as required by applicable law, rule, regulation, or legal
process including, without limitation, the Securities Act
of 1933, as amended, and the rules and regulations promulgated
thereunder, and the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
18. Limitations of Liability.
We will not be liable for indirect, special, or consequential
damages, or any loss of revenue, profits, or data, arising
in connection with this Agreement or the Reseller Program,
even if we have been advised of the possibility of such damages.
Further, our aggregate liability arising with respect to this
Agreement and the Reseller Program will not exceed the total
commission fees paid or payable to you under this Agreement.
19. Indemnification.
You hereby agree to indemnify, defend, and hold harmless HostingBay.com.au
and its subsidiaries and affiliates, and their directors,
officers, employees, agents, shareholders, partners, members,
and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs,
and expenses (including reasonable attorneys' fees) (any or
all of the foregoing hereinafter referred to as "Losses")
insofar as such Losses (or actions in respect thereof) arise
out of or are based on (a) any claim that our use of the Affiliate
Marks infringes on any trademark, trade name, service mark,
copyright, license, intellectual property, or another proprietary
right of any third party, (b) any misrepresentation or alleged
breach of a representation or warranty or alleged breach of
a covenant and agreement made by you herein, or (c) any claim
related to your site including, without limitation, content
therein not supplied by us.
20. Independent Investigation.
You acknowledge that you have read this agreement and agree
to all its terms and conditions. You understand that we may
at any time (directly or indirectly) solicit customer referrals
on terms that may differ from those contained in this agreement
or operate web sites that are similar to or compete with your
web sites. You have independently evaluated the desirability
of participating in the resell program and are not relying
on any representation, guarantee, or statement other than
as set forth in this agreement.
21. Governing Law.
This Agreement will be governed by the laws of The Commonwealth
of Australia and the State of Victoria, without reference
to rules governing choice of laws. Any action relating to
this Agreement must be brought in the federal or state courts
located in Victoria Australia and you irrevocably consent
to the jurisdiction of such courts. You may not assign this
Agreement, by operation of law or otherwise, without our prior
written consent. Any assignment in violation hereof shall
be null and void. Subject to that restriction, this Agreement
will be binding on and enforceable against the parties and
their respective successors and assigns. Our failure to enforce
your strict performance of any provision of this Agreement
will not constitute a waiver of our right to subsequently
enforce such a provision or any other provision of this Agreement.
Report SPAM here:abuse@hostingBay.com.au.
HostingBay is an online division of Hitech United Australia Pty. Ltd.
A registered company incorporating in Melbourne Victoria Australia (ABN:
53 073 181 441). 378-380 Johnston Street,
Abbotsford, Victoria 3067, Melbourne. Australia Telephone: 61-3-94173368
Facsimile: 61-3-94173360
Emailus: Support@HostingBay.com.au
Copyright (c) 2002 -2005. HostingBay