Updated September 2011
Domainz Limited ("Domainz") provides domain name and online services to its customers.
Domainz and you ("Affiliate") wish to enter into an agreement for Affiliate to promote certain services on a commission basis on the terms set out below ("Agreement").
Domainz and Affiliate agree as follows:
1.1 In this Agreement:
"Affiliate ID" means the four (4) digit unique identifier provided to Affiliate by Domainz.
"Commissions" means the commissions to be paid to Affiliate as determined in accordance with clause 4.1.
"Customer" means a customer of Affiliate.
"Effective Date" means the date of execution of this Agreement.
"Insolvency Event" means if any (or more than one) of the following occur with respect to a party:
a. the party becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
b. 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;
c. the party makes a general assignment for the benefit of creditors; or
d. the party ceases to conduct business.
"Intellectual Property Rights" means all intellectual or industrial property protect able by statute, at common law or in equity and includes all know how, inventions, patents, copyright, designs (whether or not registrable), 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 Domainz trademarks, logos or service marks, whether registered or not, as determined in Domainz's absolute discretion.
"Melbourne IT Group" means:
a. any Melbourne IT Group Entity; and
b. each director, officer, employee and agent of any Melbourne IT Group Entity.
"Melbourne IT Group Entity" means:
a. Melbourne IT Limited; and/or
b. any other corporation or other business entity controlled by, or under the common control of, Melbourne IT.
"Referred Customer" means only a Customer who:
a. expressly mentions Affiliate when Domainz asks the Customer how the Customer heard about Domainz, but shall not include any other Customer irrespective of how that Customer heard about, or was referred to, Domainz; or
b. is quoted by Affiliate to Domainz and who Domainz then contacts with regard to Services.
"Services" means the product or services of Domainz included in the Domainz Affiliate Program as advised by Domainz to Affiliate from time to time.
"Term" means the term of this Agreement, as set out in Clause 2.1.
2. Term and Appointment
This Agreement shall commence on the Effective Date and continue unless the party provides the other party with written notice in accordance with Clause 8.1 ("Term").
Domainz appoints Affiliate to participate in the Domainz Affiliate Program subject to, and upon the terms and conditions of, this Agreement.
2.3 Services included in Domainz Affiliate Program
Domainz shall determine in its sole discretion which Services are included in the Domainz Affiliate Program and which are eligible for Affiliate to receive a Commission in relation to Domainz may add or remove Services from the Domainz Affiliate Program from time to time.
2.4 Contact by Domainz with Affiliate
Affiliate consents to Domainz contacting Affiliate for the purposes of:
a. providing notifications, offers, marketing or promotions concerning or related to the Domainz Affiliate Program; or
b. providing notifications, offers, marketing or promotions about any products and services of Domainz (including new product developments and associated services) that Domainz believes will interest Affiliate, whether or not relating to the Domainz Affiliate Program.
If Affiliate no longer wishes to provide its consent, Affiliate may opt-out of being contacted by Domainz for the above stated purposes by emailing written notice to Domainz at email@example.com.
2.5 Affiliate ID
Domainz will provide Affiliate with an Affiliate ID, by which Affiliate will be able to identify itself to Domainz.
3. Change of Terms and Conditions
3.1 Change to Terms and Conditions
Domainz may change the terms and conditions of this Agreement (including any Commissions) at any time by general notice on a page of the internet referred to on the home page of our website at http://www.domainz.net.nz/legals/. Changes other than changes to Commissions will become effective upon publication of the notice. Where any changes occur that detrimentally affect Commissions, Domainz will provide at least 30 days notice of the change by the same means, after which the changes will apply.
3.2 Deemed Acceptance of Changes
Affiliate agrees that Affiliate's continued participation in the Domainz Affiliate Program after the date of any notice by Domainz pursuant to clause 3.1 will be deemed Affiliate's acceptance of those revised terms and conditions.
4.1 Calculation of Commissions
Domainz will pay Affiliate in accordance with the following table:
For all new Services purchased by Referred Customers and paid in full, Affiliate receives 20% of the net sale price (ex GST).
For all renewals of Services purchased by Referral Customers and paid in full, Affiliate receives 10% of net renewal sale price (ex GST).
4.2 Reporting of Commissions
Domainz will provide quarterly reports to Affiliate advising the number of Services obtained, through Domainz, by Referred Customers during the relevant quarterly period.
4.3 Payment of Commissions
Commissions will be paid by Domainz upon receipt of a valid and correct tax invoice from Affiliate. Invoices must be submitted to firstname.lastname@example.org.
Domainz will pay Affiliate Commissions, in respect of applicable Services quarterly, in the month after the last quarter year has ended. Domainz will pay Affiliate via direct credit into the Affiliate's nominated New Zealand bank account.
Commissions paid to Affiliate will be inclusive of any goods and services tax (GST), but exclusive of any other tax or charge which may apply under any relevant law. Affiliate acknowledges that it will be liable for all applicable tax, charge, or levies which may apply.
At all times the Affiliate must:
a. conduct business in a manner that reflects favourably at all times on the Services and Domainz;
b. protect and refrain from any conduct which is or could be detrimental the good name, goodwill, and reputation of Domainz; and
c. comply with all applicable laws, regulations, and ordinances relating to their business and performance of this Agreement.
5. Intellectual Property Rights and Marks
5.1 Intellectual Property Rights
Domainz and Affiliate acknowledge and agree that nothing in this Agreement shall constitute a transfer of any Intellectual Property Rights of Domainz to Affiliate. Affiliate agrees that Domainz will retain all right, title and interest in the Services. Affiliate further agrees that nothing in this Agreement shall result in Affiliate having any right, title or interest in any domain name registered in connection with Affiliate's participation in the Domainz Affiliate Program.
5.2 Licence of Marks
a. Affiliate is hereby granted a limited licence to use Domainz's Marks in accordance with the terms of this clause 5.2(b) and this Agreement ("Licence").
b. The terms of the Licence shall be as follows:
i. Affiliate will be granted a limited license for the period in which Affiliate remains a participant in the Domainz Affiliate Program solely for use of such Marks;
ii. Affiliate may only use the Marks in the format such Marks are provided by Domainz (if any) to Affiliate and only for purposes connected to the conduct and promotion of the Domainz Affiliate Program and otherwise, as is required for Affiliate's performance of its obligations under this Agreement;
iii. Affiliate may not make any alterations to the Marks;
iv. Domainz shall have the right to review the manner in which the Marks are being used and require modifications of such use, as Domainz deems necessary;
v. if at any time, Domainz require modifications to the use of the Marks by Affiliate, Affiliate agrees to make those modifications as soon as possible after receipt of notice from Domainz requiring such modifications, and, in any event, within 7 days of that notice; and
vi. for the avoidance of doubt, the Licence shall automatically terminate on the termination of this Agreement (for any reason) and Affiliate shall immediately cease use of the Marks.
6. Affiliate Obligations
Affiliate must not in any way say, hold out, or permit anyone to believe that Affiliate is an accredited ICANN or .nz accredited registrar or reseller of Domainz. Affiliate must not make any misleading or deceptive statements regarding the Services. Affiliate will only be permitted to refer to Affiliate's status under this Agreement as a "Domainz Affiliate Program Member".
Affiliate represents and warrants to Domainz that:
a. it has authority to enter into this Agreement;
b. in performing its obligations under this Agreement, Affiliate will comply with all applicable laws and regulations; and
c. Referred Customers have (i) been made aware that their details will be provided to Domainz, and that Domainz may contact them directly, and (ii) consented to such use of their details by Affiliate and Domainz.
a. Either party may terminate this Agreement at any time for any reason upon fourteen (14) days prior written notice to the other party.
b. 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 immediately if:
i. the other party breaches any obligation under this Agreement, and, if the breach is capable of being remedied, the breaching party fails to cure such breach within five (5) days after receiving written notice of the breach from the other Party; or
ii. an Insolvency Event occurs with respect to the other Party.
9. Liability and Indemnity
9.1 Liability of Domainz
To the extent permitted by law, Affiliate agrees that Domainz has no liability to the Affiliate or any Referred Customer for any loss or damage (whether direct, indirect, consequential, loss of profits or otherwise) the Affiliate or any Referred Customer may incur (whether by negligence or fault of Domainz or otherwise) arising out of or in connection with this Agreement or any action (or inaction) by Domainz in connection with this Agreement.
9.2 Affiliate Indemnity
Affiliate shall indemnify the Melbourne IT Group (which includes Domainz) from any Loss and Damage threatened, asserted, or filed by a third party against any of the Melbourne IT Group, arising out of or relating to:
a. Affiliate's unlawful conduct; and/or
b. any breach of this Agreement by Affiliate; and/or
c. any misleading or deceptive representations or conduct of Affiliate arising out of, or relating to, the Services or this Agreement.
10 General Provisions
10.1 Entire Agreement
a. constitutes the entire agreement between Domainz and Affiliate as to its subject matter; and
b. in relation to that subject matter, supersedes any prior understanding or agreement between Domainz and Affiliate.
10.1 Invalid or Unenforceable Provisions
If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
10.3 Waiver and Exercise of Rights
The failure of a party at any time to insist on strict performance of any provision of this Agreement is not a waiver of its right at any later time to insist on strict performance of that or any other provision of this Agreement.
10.4 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.
Unless otherwise expressly provided, 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 as 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.
10.6 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.
10.7 Governing Law
This Agreement is governed by the laws of New Zealand. Each party submits to the non exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
Affiliate may not assign its rights and obligations under this Agreement without the prior written consent of Domainz.