Webnames.ca Reseller Program Agreement

Last published: Nov 14, 2014

THIS AGREEMENT GOVERNS THE WEBNAMES.CA RESELLER PROGRAM, EXEMPTS WEBNAMES.CA AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, AND CONTAINS OTHER IMPORTANT PROVISIONS (INCLUDING PROVISIONS REGARDING DISPUTE RESOLUTION) YOU SHOULD READ. BY SUBSCRIBING TO PARTICIPATE IN THE WEBNAMES.CA RESELLER PROGRAM, RESELLER ACKNOWLEDGES AND SIGNIFIES THAT RESELLER HAS READ, UNDERSTANDS AND AGREES, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT. IF RESELLER DOES NOT ACCEPT AND AGREE TO THIS AGREEMENT, RESELLER MAY NOT SUBSCRIBE FOR OR PARTICIPATE IN THE WEBNAMES.CA RESELLER PROGRAM.

1. Acceptance and Amendment

(a) Acceptance of this Agreement: This Agreement is a binding contract between Webnames.ca and Reseller (collectively, the “Parties” and each a “Party”) and governs the Webnames.ca Reseller Program (the “Program”). By subscribing to participate in the Program, Reseller signifies Reseller’s acceptance and agreement to be bound by this Agreement. If this Agreement is accepted by an individual on behalf of Reseller, the individual represents and warrants that he or she has the legal authority to agree to and accept this Agreement on behalf of Reseller. If Reseller does not agree with each provision of this Agreement, Reseller may not subscribe for, or participate in, the Program.

(b) Other Agreements: Certain aspects of the Reseller Program relate to services provided by Webnames.ca that are governed by the Webnames.ca Terms of Use and Services Agreement (available by clicking here) and other Supplementary Agreements (available by here), each as amended from time to time by Webnames.ca (collectively, the “Other Agreements”). If there is a conflict between this Agreement and the Other Agreements, then this Agreement will govern regarding the Reseller Program, and the Other Agreements will govern regarding the relevant services provided by Webnames.ca.

(c) Amendment: Webnames.ca may amend this Agreement from time to time effective immediately by posting the amended Agreement on the Webnames.ca website. Webnames.ca’s employees do not have authority to amend this Agreement, except as set forth above. By continuing to participate in the Program after this Agreement has been amended, Reseller signifies Reseller’s acceptance and agreement, without limitation or qualification, to be bound by the amended Agreement. If Reseller does not agree with each provision of the amended Agreement, then Reseller may not continue to participate in the Program. Reseller may not change, supplement or amend this Agreement in any manner.

2. General Definitions

(a) Definitions: In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement or in the Webnames.ca Terms of Use and Services Agreement (available by clicking here):

(i) “Customer” means a customer that is referred by Reseller to Webnames.ca for a Domain Name Transaction, or on whose behalf Reseller engages in a Domain Name Transaction or subscribes for services from Webnames.ca, under this Agreement. For greater certainty, Customers do not include Reseller or any of Reseller’s Representatives.

(ii) “Purchase Price” means the fees in respect of a Qualifying Transaction actually received by Webnames.ca from or on behalf of a Customer during the Term, not including any federal, state, provincial, and municipal duties, excise, sales, use, value-added, import, and other taxes, duties, charges, levies, fees, excises, tariffs, and assessments, of any nature whatsoever now or hereafter imposed (collectively, “Taxes ”) or any shipping, handling or other charges, and net of all deductions for discounts, refunds, returns, rebates and charge backs. For greater certainty, payments received by Webnames.ca after the Term are not part of the Purchase Price for any Qualifying Transaction.

(iii) “Registry Agreements/Policies” means the agreements, terms and conditions, policies and procedures established and amended from time to time by or on behalf of the relevant Domain Name Registry Authority regarding Domain Name Transactions for Domain Names in the relevant Domain Name registry and related matters, including any agreement between Webnames.ca and the Domain Name Registry Authority pursuant to which Webnames.ca is accredited as a registrar for Domain Names in the relevant Domain Name registry.

(iv) “Qualifying Services” means services regarding a Domain Name Transaction or other services provided by Webnames.ca that are expressly identified as Qualifying Services in the Registration Notice.

(v) “Qualifying Transaction” means a transaction for the provision of Qualifying Services by Webnames.ca to a Customer, provided that the transaction occurs during the Term and is ordered by or on behalf of the Customer using a Child Account, a Reseller Account, the Landing Page or a Reseller Code.

(vi) “Representatives” means directors, officers, employees, agents, personnel, service providers, representatives, successors, permitted assigns, affiliates, related persons and each of them.

(vii) “Registration Notice” means a notice (including by email) provided by Webnames.ca to Reseller accepting Reseller’s request to participate in the Program and providing details of Reseller’s participation in the Program, as amended from time to time by Webnames.ca in its discretion.

(viii) “Reseller’s Website” means the website owned and operated by the Reseller and used by Reseller to promote Reseller’s business.

(ix) “Term” has the meaning set forth in section 16(a).

3. Parent/Child Accounts

(a) Application: This section 3 applies only if the Registration Notice specifies that Reseller will administer Webnames.ca accounts used to register Domain Names on behalf of Customers.

(b) Definitions: In this Agreement: (i) “Child Account” means a Webnames.ca account that is a sub-account of a Parent Reseller Account and is used by or on behalf of a Customer to purchase Qualifying Services; and (ii) “ Parent Account” means a Webnames.ca account for use by Reseller that provides Reseller with the ability to create and administer Child Accounts.

(c) Parent Accounts: During the Term, Webnames.ca will provide Reseller with one or more Parent Accounts. Reseller will not change or transfer registered ownership of Domain Names that are registered in the name of Customers through Child Accounts. Customers have the right to transfer their Domain Name registrations from their Child Account to another Webnames.ca account, in which case Reseller will no longer have any administrative privileges regarding the transferred Domain Names and related services. Reseller will promptly comply with all requests by Customers for transfers or changes to their Domain Name registrations.

(d) Reseller Responsibilities/Representations: For each Customer for whom Reseller establishes or operates a Child Account or engages in a Domain Name Transaction using a Child Account, Reseller will ensure, and Reseller represents and warrants to Webnames.ca, that: (i) Reseller has the requisite authority from the Customer to establish and operate the Child Account on behalf of the Customer, to engage in Domain Name Transactions on behalf of the Customer and to administer Qualifying Services on behalf of the Customer through the Child Account; (ii) Reseller has informed the Customer of the terms and conditions that apply to the Child Account and all transactions (including Qualifying Transactions) through the Child Account, and Reseller has the requisite authority from the Customer to bind the Customer to those terms and conditions; and (iii) all Domain Names registered through the Child Account that are beneficially owned by a Customer are registered in the Customer’s name as the Registered Name Holder.

(e) Customer Acceptance of Agreement:

(i) Acknowledgement: Reseller acknowledges that if a Customer is or is intended to be the Registered Name Holder for a Domain Name, then the Registry Agreements/Policies might require that the Customer accept and agree to all agreements (including Other Agreements) applicable to the Domain Name and related transactions.

(ii) Procedure: If Reseller uses a Child Account for a Domain Name Transaction on behalf of a Customer, then: (A) Reseller will provide Webnames.ca with all requested information regarding the name and contact details of the Customer; and (B) Webnames.ca may in its discretion send to the Customer an email (using the email address provided by Reseller) providing information regarding the procedure required for the Customer to accept all Other Agreements applicable to the Domain Name Transaction. If the Customer fails to accept each of those Other Agreements in accordance with the prescribed procedure within the period specified in the procedure, then the Domain Name Transaction might be automatically rejected without further notice to Reseller, the Customer or any other person.

(iii) Delay: Delay by a Customer in accepting the Other Agreements applicable to a Domain Name Transaction might result in a rejection of the Domain Name Transaction (e.g. if a domain name is registered by another person before the Customer accepts the Other Agreements applicable to a requested registration of the domain name on behalf of the Customer).

(iv) DISCLAIMER: WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISION OF THIS AGREEMENT, RESELLER IS SOLELY RESPONSIBLE AND LIABLE FOR ENSURING THAT EACH CUSTOMER PROMPTLY AND PROPERLY ACCEPTS AND AGREES TO ALL AGREEMENTS APPLICABLE TO EACH DOMAIN NAME TRANSACTION, AND WEBNAMES.CA IS NOT RESPONSIBLE OR LIABLE FOR PROVIDING RESELLER OR A CUSTOMER WITH ANY NOTICE REGARDING ANY DELAY OR FAILURE BY THE CUSTOMER TO ACCEPT APPLICABLE AGREEMENTS. RESELLER CAN DETERMINE WHETHER A CUSTOMER HAS ACCEPTED APPLICABLE AGREEMENTS THROUGH WEBNAMES.CA’S WEBSITE OR BY CONTACTING WEBNAMES.CA CUSTOMER SERVICE.

(f) Customer Support: Reseller is solely responsible and liable for, and will promptly provide, all technical support required by Customers regarding their Child Accounts and Qualifying Services associated with the Child Accounts.

4. Co-Branded Landing Page

(a) Application: This section 4 applies only if the Registration Notice specifies that Customers will create their own Webnames.ca accounts through a co-branded landing page.

(b) Landing Page: During the Term, Webnames.ca will establish a page on the Webnames.ca website (the “Landing Page”) that displays both Reseller’s branding and Webnames.ca’s branding, and which enables Customers to create their own Webnames.ca accounts that Customers may use for Qualifying Transactions. Webnames.ca is solely responsible for the creation, operation, maintenance and control of the Landing Page, and may in its discretion change the Landing Page from time to time.

(c) License to Use Reseller Branding: Reseller hereby grants to Webnames.ca a limited, restricted, non-exclusive, non-assignable, non-transferable, non-sub-licensable, revocable license during the Term to use and display Reseller’s branding on the Landing Page solely for the purpose of identifying the Landing Page to Customers and potential Customers as being affiliated with Reseller. Webnames.ca acknowledges Reseller’s sole ownership of Reseller’s branding and the goodwill pertaining thereto. All of the benefit and goodwill associated with Webnames.ca’s use of Reseller’s branding will enure entirely to Reseller. Webnames.ca will not itself, and will not assist, permit or encourage any other person to, do anything or omit to do anything that might impair, jeopardize, violate, misappropriate or infringe Reseller’s rights and interests in and to Reseller’s branding.

5. Reseller Code s

(a) Application: This section 5 applies only if the Registration Notice specifies that Customers will create and administer their own Webnames.ca accounts using Reseller Codes.

(b) Reseller Codes: During the Term, Webnames.ca will provide one or more alphanumeric codes (each a “Reseller Code”) to Reseller. Subject to the provisions of this Agreement, Reseller may distribute Reseller Codes free of charge to Customers during the Term solely for the purpose of advertising and promoting Webnames.ca’s services. Subject to Webnames.ca’s express prior written approval (which Webnames.ca may withhold or revoke in its discretion), Reseller may display Reseller Codes on Reseller’s Website. Webnames.ca may in its discretion cancel or change Reseller Codes, and Reseller will comply with the cancellation or changes at its sole cost. Reseller will promptly notify Webnames.ca of any malfunctioning or other problems with Reseller Codes.

(c) Restrictions: Reseller will not: (i) display Reseller Codes on any website other than Reseller’s Website without Webnames.ca’s express, prior written consent; (ii) authorize or permit any person other than Customers to use Reseller Codes; (iii) use Reseller Codes in any manner or for any purpose that is critical or disparaging of Webnames.ca or that might diminish or otherwise damage Webnames.ca’s reputation and goodwill or that implies sponsorship or endorsement by Webnames.ca; or (iv) use Reseller Codes in any manner or for any purpose other than as expressly set forth in this Agreement.

6. Reseller Accounts

(a) Application: This section 6 applies only if the Registration Notice specifies that that Reseller will register Domain Names on behalf of Customers though a Reseller Account.

(b) Reseller Accounts: During the Term, Webnames.ca will establish one or more accounts (each a “Reseller Account”) for use by Reseller to engage in a transaction (including Domain Name registrations and other Domain Name Transactions) on behalf of, or in the name of, Customers. Customers have the right to transfer their Domain Name registrations from a Reseller Account to another Webnames.ca account, in which case Reseller will no longer have any administrative privileges regarding the transferred Domain Names and related services. Reseller will promptly comply with all requests by Customers for transfers or changes to their Domain Name registrations.

(c) Reseller Responsibilities/Representations: For each Customer for whom Reseller engages in a Domain Name Transaction using a Reseller Account, Reseller will ensure, and Reseller represents and warrants to Webnames.ca, that: (i) Reseller has the requisite authority from the Customer to engage in Domain Name Transactions on behalf of the Customer (including registering and administering Domain Names on behalf of the Customer) using a Reseller Account; and (ii) Reseller has informed the Customer of the terms and conditions that apply to all transactions (including Qualifying Transactions), and Reseller has the requisite authority from the Customer to bind the Customer to those terms and conditions.

7. ICANN Requirements

(a) Application: This section 7 applies unless the applicable Registration Notice expressly specifies that Qualifying Services and Qualifying Transactions do not apply ICANN-administered top-level domains.

(b) General: Reseller will not take any action inconsistent with applicable law or the corresponding provision in the current version of ICANN’s Registrar Accreditation Agreement, a current copy of which is available online (http://www.icann.org/en/resources/registrars/raa/approved-with-specs-27jun13-en.htm#registrant) or upon request from Webnames.ca.

(c) Disclosure: Reseller will disclose to each Customer that each Qualifying Transaction and related services will be performed and provided by Webnames.ca.

(d) Branding: Reseller will not display the ICANN or ICANN-Accredited Registrar logo, or otherwise represent Reseller to be accredited by ICANN, unless Reseller has express written permission from ICANN to do so.

(e) ICANN Proxy/Privacy Registration Specification: If Reseller provides a proxy or privacy registration service, then without limiting the generality of any other provision of this Agreement Reseller will comply with all ICANN-adopted specifications and policies that establish a program for accreditation of individuals or entities who provide proxy and privacy registration services, including ICANN’s Specification on Privacy and Proxy Registrations, as established and amended by ICANN from time to time, a current copy of which is available online (http://www.icann.org/en/resources/registrars/raa/approved-with-specs-27jun13-en.htm#privacy-proxy) or upon request from Webnames.ca.

(f) Links: Reseller will include on Reseller’s Website clearly displayed and reasonably prominent links to the following: (i) ICANN’s educational webpage summarizing the terms of the ICANN Registrar Accreditation Agreement and related Consensus Policies (currently located at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm); and (ii) ICANN’s Registrants' Benefits and Responsibilities Specification attached to ICANN’s Registrar Accreditation Agreement (currently located at http://www.icann.org/en/resources/registrars/raa/approved-with-specs-27jun13-en.htm#registrant). Reseller will ensure that each link is at least as prominent (in both size and location) as links to Reseller’s own terms and conditions and policies.

8. Other Matters

(a) Other Agreements:

(i) General: Reseller acknowledges that, in addition to this Agreement, access to and use of Parent Accounts, Child Accounts, Reseller Accounts, Reseller Codes, and Customer accounts, and all Qualifying Transactions and other transactions with Customers, are governed by Other Agreements and Webnames.ca’s policies and procedures, as established and amended by Webnames.ca in its discretion from time to time, current versions of which are available online at www.webnames.ca/terms.asp.

(ii) No Amendment: Reseller will not purport to amend any Other Agreement or any of Webnames.ca’s policies and procedures as they apply to Customers or Qualifying Transactions, or impose on a Customer any additional terms and conditions that are inconsistent or conflict with any Other Agreement or any of Webnames.ca’s policies and procedures.

(b) Qualifying Services/Qualifying Transactions: Notwithstanding any other provision of this Agreement: (i) Webnames.ca may in its discretion from time to time change, modify, suspend or terminate Qualifying Services, without any notice or liability to Reseller; (ii) Webnames.ca in its discretion will establish and change from time to time the fees and charges (including discounts) for Qualifying Transactions, without any notice or liability to Reseller; (iii) Webnames.ca is solely responsible for the processing and fulfillment of all orders for Qualifying Transactions; (iv) Reseller is not a party to any Qualifying Transaction or other transaction between any Customer and Webnames.ca; and (v) Webnames.ca may in its discretion refuse to deal with any Customer or reject, refuse, cancel or terminate any order for a Qualifying Transaction or other transactions with Customers, without any notice or liability to Reseller or any other person.

9. Marketing Materials

(a) Marketing Materials: Webnames.ca may in its discretion from time to time provide advertising and marketing materials (collectively “ Marketing Materials”) to Reseller. Subject to the provisions of this Agreement, Webnames.ca hereby grants to Reseller a limited, restricted, non-exclusive, non-assignable, non-transferable, non-sub-licensable, revocable license during the Term to display Marketing Materials on Promotional Pages (defined in section 10(b)) and distribute Marketing Materials as expressly authorized in writing by Webnames.ca solely for the purpose of advertising and promoting Webnames.ca’s services. Webnames.ca may in its discretion change or modify Marketing Materials from time to time, and Reseller will promptly comply with and implement all changes at Reseller’s sole cost.

(b) Restrictions/Requirements: Reseller will not: (i) display Marketing Materials or any portion of them on any website other than Promotional Pages without Webnames.ca’s express, prior written consent; (ii) alter, change or modify Marketing Materials in any way whatsoever, without Webnames.ca’s express, prior written consent; (iii) assign, authorize, license, sublicense, grant or create any interest in, to or associated with Marketing Materials or any part of them or their use; (iv) use Marketing Materials or any part of them in any manner or for any purpose: (A) that is critical or disparaging of Webnames.ca or its services or that might diminish or otherwise damage Webnames.ca’s reputation and goodwill, or (B) that implies endorsement by Webnames.ca of Reseller’s business, products or services; or (v) use Marketing Materials or any part of them in any manner or for any purpose other than as expressly set forth in this Agreement. Promptly upon request by Webnames.ca, Reseller will permit Webnames.ca to inspect and observe all of Reseller’s use of and activities relating to Marketing Materials.

(c) Benefit/Goodwill: Reseller acknowledges Webnames.ca’s sole ownership of Marketing Materials (including all of Webnames.ca’s trademarks incorporated in Marketing Materials) and the goodwill pertaining to Marketing Materials. All of the benefit and goodwill associated with Reseller’s use of Marketing Materials (including Webnames.ca’s trademarks incorporated in Marketing Materials) will enure entirely to Webnames.ca. Reseller will not itself, and will not assist, permit or encourage any other person to, do anything or omit to do anything that might impair, jeopardize, violate, misappropriate or infringe Webnames.ca’s rights and interests in and to Marketing Materials (including any of Webnames.ca’s trademarks incorporated in Marketing Materials) . Reseller will reasonably cooperate with Webnames.ca for the purpose of registering, protecting, preserving, and enhancing Marketing Materials and Webnames.ca’s rights and interests in and to Marketing Materials.

10. Reseller’s Obligations

(a) Referrals: During the Term, Reseller will use reasonable commercial efforts to encourage Reseller’s customers to use Webnames.ca’s services.

(b) Promotional Pages: Subject to Webnames.ca’s express prior written approval (which Webnames.ca may withhold or revoke in its discretion), during the Term Reseller may establish one or more pages (collectively, the “Promotional Pages”) on Reseller’s Website to p romote Webnames.ca’s services. Notwithstanding Webnames.ca’s approval of any Promotional Pages or any other provision of this Agreement, Reseller is solely responsible and liable for creating, operating, supporting, and maintaining Reseller’s Website and the Promotional Pages, for the content of Reseller’s Website and the Promotional Pages (subject to the requirements of this Agreement), and for the use of Reseller’s Website and the Promotional Pages by Internet users. Reseller will ensure that throughout the Term Reseller’s Website and the Promotional Pages: (i) comply with this Agreement and all applicable laws and community standards; (ii) do not infringe, violate or misappropriate the rights (including intellectual property, industrial property, moral, privacy and publicity rights) of any person; (iii) are not directed to persons under 13 years of age; and (iv) do not contain, reference or distribute any statements, messages, images or other materials that are abusive, contain nudity, deceptive, defamatory, derogatory, discriminatory, false, fraudulent, harassing, harmful, hateful, indecent, objectionable, obscene, offensive, pornographic, profane, racist, sexist, sexually explicit, threatening, violent, vulgar or otherwise objectionable, or which advocate, depict, encourage or tend to incite any such conduct, the commission of a crime or other unlawful activities.

(c) Accurate Information/Representations:

(i) Webnames.ca: Reseller will provide Webnames.ca with full, complete and accurate information regarding all Qualifying Transactions and Customers, including by providing all information requested by Webnames.ca regarding the actual or beneficial Registered Name Holder for a Domain Name.

(ii) Customers: Reseller will provide Customers or potential Customers with accurate information regarding Webnames.ca’s services. Reseller will not make or give any representations, warranties, conditions, promises, claims or instructions about Webnames.ca’s services or the use thereof to any person except for: (i) the representations expressly set forth on the Landing Page (as amended from time to time); (ii) Marketing Materials (without any change or modification by Reseller); or (iii) other representations or materials expressly approved in writing by Webnames.ca from time to time.

(d) Customer Data/Personal Information:

(i) General: Reseller will collect, use, disclose and retain all data and information (including personal information) regarding Customers and their Representatives that Reseller obtains as a result of this Agreement solely for the purpose of performing Reseller’s obligations and exercising Reseller’s rights under this Agreement and strictly in accordance with all applicable laws (including all personal information protection and privacy laws)

(ii) Details: Without limiting the generality of section 10(d)(i): (A) Reseller will obtain each Customer’s informed consent to the collection, use, disclosure and retention of the Customer’s data and information (including personal information) by Reseller, Webnames.ca and Domain Name Registry Authorities as contemplated by this Agreement; (B) Reseller will take commercially reasonable measures (including administrative, physical and technical security and safeguarding measures and solutions appropriate to the sensitivity of the information) to protect all data and information regarding Customers from unauthorized access, collection, use, disclosure, disposal or similar risks; and (C) Reseller will collect, use, disclose and retain data and information (including personal information) regarding a Domain Name Transaction in accordance with all applicable Registry Agreements/Policies.

(iii) Compliance Assistance/Certification: Upon request by Webnames.ca, Reseller will: (A) cooperate with and assist Webnames.ca to comply with all applicable laws and Registry Agreements/Policies relating to the collection, use, disclosure and retention of data and information and with Webnames.ca’s Privacy Policy; and (B) Reseller will promptly complete, sign and return to Webnames.ca a questionnaire providing details of Reseller’s practices and procedures regarding the protection of data and information and a certificate verifying Reseller’s compliance with Reseller’s obligations under this Agreement regarding data and information.

(e) Compliance with Laws: Reseller will at all times comply with all applicable laws relating to Reseller, Reseller’s Website, the use and distribution of Marketing Materials, and the performance of Reseller’s obligations under this Agreement . Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, under no circumstances whatsoever will Reseller use any unsolicited commercial electronic messages or other communications (including spam) to directly or indirectly reference, advertise, promote or distribute the Program, Reseller’s Website, the Promotional Pages, Webnames.ca or Marketing Materials.

(f) Prohibited Marketing: Reseller acknowledges that nothing in this Agreement or done pursuant to this Agreement: (i) makes or will make Reseller an accredited domain name registrar, and Reseller will not state or imply (in marketing materials or otherwise) that Reseller is by virtue of this Agreement an accredited domain name registration; (ii) gives Reseller any right or license to use the name, trademarks or other branding of any Domain Name Registry Authority, and Reseller will not use the name, trademarks or other branding of a Domain Name Registry Authority unless Reseller has the lawful right or license to do so pursuant to a separate agreement between Reseller and the Domain Name Registry Authority; or (iii) except as expressly set forth in section 7(f), gives Reseller any right or license to link to pages or documents within the website of any Domain Name Registry Authority, and Reseller will not link to pages or documents within the website of any Domain Name Registry Authority unless Reseller has the lawful right or license to do so pursuant to a separate agreement between Reseller and the Domain Name Registry Authority.

(g) Proxy/Privacy Registration Services: Without limiting the generality of any other provision of this Agreement, if Reseller offers or operates a proxy or privacy registration service then Reseller will comply with all applicable Registry Agreements/Policies relating to the proxy or privacy registration service .

(h) Notifications: Upon request by Webnames.ca, Reseller will cooperate with and assist Webnames.ca to contact Customers and send notices to Customers as may be required by Other Agreements, Registry Agreements/Policies or applicable law.

11. Referral Fees and Related Matters

(a) Referral Fee: For each Qualifying Transaction during the Term, Webnames.ca will pay to Reseller a fee (the “ Referral Fee”) that is a portion of the Purchase Price for the Qualifying Transaction calculated using the applicable Referral Fee Rate. The initial Referral Fee Rate will be specified in the Registration Notice. Webnames.ca may in its discretion change the Referral Fee Rate from time to time upon thirty (30) days’ notice to Reseller. The Referral Fee will be calculated and paid in Canadian currency, and for the purpose of those calculations a Purchase Price paid in a foreign currency will be converted to Canadian currency using an even exchange rate. The Referral Fee will not be payable unless and until Webnames.ca actually receives payment of the Purchase Price. If the Purchase Price paid in respect of a Qualifying Transaction is reduced or eliminated, whether as a result of a discount, refund, return, rebate, charge back or for any other reason in Webnames.ca’s discretion, the Referral Fee in respect of the Purchase Price will be adjusted accordingly. Webnames.ca does not guarantee and is not required to pay any minimum amount of Referral Fees to Reseller.

(b) Reports, Invoices and Payments: Within forty-five (45) days after the end of each quarter or a different period expressly agreed in writing by the Parties from time to time (each a “Reporting Period”), Webnames.ca will deliver (including by email) to Reseller a detailed report (each a “Report”) showing the calculation of the Referral Fees payable to Reseller in respect of Purchase Price payments received by Webnames.ca during the Reporting Period. After Reseller receives the Report, Reseller will deliver (including by email) to Webnames.ca an invoice for the Referral Fees payable to Reseller for the Reporting Period as set forth in the Report. Within thirty (30) days after Webnames.ca receives an invoice, Webnames.ca will pay to Reseller the applicable Referral Fees, less all withholdings and deductions required by applicable law or authorized under this Agreement. To protect Customers’ privacy, Reports may include only limited information regarding the identity of Customers. A Report will be deemed to be correct unless Reseller delivers a written notice of complaint to Webnames.ca within thirty (30) days after the date of the Report.

(c) Taxes and Withholdings: All amounts payable to Reseller under this Agreement are inclusive of all Taxes. Reseller is solely responsible and liable for the remittance to the relevant authorities in a timely and proper manner of all Taxes arising from, connected with, and relating to the amounts payable by Webnames.ca to Reseller under this Agreement. Notwithstanding the foregoing or any other provision of this Agreement: (i) Reseller authorizes Webnames.ca to withhold and remit to the appropriate taxation or other authorities all Taxes and other amounts required by applicable law to be withheld and remitted in connection with any payment under this Agreement; and (ii) if any amounts are payable by Reseller to Webnames.ca under any other agreement between the Parties, Reseller authorizes Webnames.ca to set off and deduct all of those amounts as against any amounts payable to Reseller under this Agreement.

(d) No Other Remuneration: The Referral Fee is full and complete compensation for the performance by Reseller of Reseller’s obligations under this Agreement. Except for the Referral Fee, Reseller is not entitled to any other fees, commissions or other remuneration arising from, connected with or relating to this Agreement, Qualifying Transactions or any other transaction between Webnames.ca and Customers. For greater certainty, Reseller will not be entitled to a Referral Fee or other remuneration in respect of any transactions between Webnames.ca and Customers after the Term, including Qualifying Transactions that continue after the Term.

(e) Disputes: In the event of any dispute regarding Qualifying Transactions or the fees and charges for Qualifying Transactions, the determination of those matters by Webnames.ca acting reasonably will be conclusive and binding upon Reseller.

12. Reseller’s Payment of Webnames.ca’s Fees

(a) Payment Options: During the Term, Reseller will pay the Purchase Price and other fees for Qualifying Transactions and related Taxes, and all other fees payable to Webnames.ca, using one of the applicable billing and payment options expressly specified in the Registration Notice or as otherwise expressly agreed to by the Parties from time to time (the “Payment Options”). Except for the applicable Payment Options and as otherwise expressly set forth in this Agreement, payments to Webnames.ca are subject to fees and payments provisions of the Webnames.ca Terms of Use and Services Agreement (available by clicking here).

(b) Changes/Overdue Payments: Webnames.ca may in its discretion change any or all Payment Options on thirty (30) days’ prior notice to Reseller, provided that if Reseller fails to pay any invoice within thirty (30) days after the date of the invoice, then Webnames.ca may in its discretion and without any notice or liability to Reseller or any other person immediately cancel any or all Payment Options and charge all amounts owing under all invoices issued to Reseller to any of the credit card numbers Webnames.ca has on file for Reseller; and if any amounts remain unpaid Webnames.ca may in its discretion and without any notice or liability to Reseller or any other person immediately suspend use of all Reseller Accounts and Parent Accounts (which will prevent all transactions in those accounts) until all outstanding amounts are paid.

13. Representations/Warranties and Disclaimer

(a) Mutual Representations/Warranties: Each Party represents and warrants that : (i) the Party has, and will have at all material times, all requisite power, capacity, authority and approvals to enter into, execute and deliver this Agreement and to perform fully its obligations under this Agreement; and (ii) the Party’s execution and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that the Party now or in the future owes to any other person.

(b) NO OTHER REPRESENTATIONS/WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13(a), THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO ACCURACY, CAPACITY, COMPLETENESS, DELAYS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE, VIRUSES OR OTHER HARMFUL COMPONENT, ERRORS, OR INTERRUPTED SERVICE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, RESULTS, QUALITY, TIMELINESS, TITLE OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY WEBNAMES.CA TO THE FULLEST EXTENT PERMITTED BY LAW.

(c) Costs and Acknowledgment: Except as expressly set forth in this Agreement, each Party will bear its own costs and expenses in connection with the Program and the performance of the Party’s obligations under this Agreement, and neither Party will bring a claim for any effort expended in either promoting or otherwise developing a market for the Program or Webnames.ca’s services. Each Party acknowledges that the Program involves certain risks, and neither Party has made or received any representation, warranty or guarantee, express or implied, as to the potential sales volume, fees, profits or success of the Program.

(d) Sole Remedy: If Reseller is dissatisfied with the Program, Reseller’s sole and exclusive remedy is to cease participating in the Program.

(e) Definition: In this section 13, “Program” includes Marketing Materials, the Landing Page and all services provided by Webnames.ca to Reseller or Customers arising from, connected with or relating to the Program.

14. LIABILITY EXCLUSIONS/LIMITATIONS/RELEASE

(a) EXCLUSIONS/LIMITATIONS/RELEASE: NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT EXCEPT SECTION 14(b), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

(i) EXCLUSIONS: THE LIABILITY (IF ANY) OF EACH PARTY AND ITS REPRESENTATIVES TO THE OTHER PARTY AND ITS REPRESENTATIVES ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING WEBNAMES.CA’S SERVICES AND DOMAIN NAME TRANSACTIONS), THE TERMINATION OF THIS AGREEMENT, THE RELATIONSHIP BETWEEN THE PARTIES, OR ANY RELATED MATTER, IS LIMITED TO DIRECT DAMAGE SUFFERED BY THE OTHER PARTY ONLY, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ITS REPRESENTATIVES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE OF ANY NATURE OR KIND WHATSOEVER OR FOR ANY LOSS OF DATA, LOSS OF INFORMATION, LOSS OF BUSINESS, LOSS OF MARKETS, LOSS OF SAVINGS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF USE, LOSS OF PRODUCTION, OR LOSS OF GOODWILL, ANTICIPATED OR OTHERWISE (INCLUDING BY REASON OF ANY EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN ANTICIPATION OF THE CONTINUANCE OR PERFORMANCE OF THIS AGREEMENT);

(ii) LIMITATIONS: IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY AND ITS REPRESENTATIVES TO THE OTHER PARTY AND ITS REPRESENTATIVES, UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING WEBNAMES.CA’S SERVICES AND DOMAIN NAME TRANSACTIONS), THE TERMINATION OF THIS AGREEMENT, THE RELATIONSHIP BETWEEN THE PARTIES, OR ANY RELATED MATTER, EVER EXCEED THE TOTAL AMOUNT OF REFERRAL FEES PAID TO RESELLER UNDER THIS AGREEMENT; AND

(iii) APPLICATION: THIS SECTION 14(a) APPLIES TO LIABILITY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LAW OR UNDER ANY STATUTE), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY THE LIABLE PARTY OR ITS REPRESENTATIVES, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE FOR THE LOSS OR DAMAGE, AND EVEN IF THE LIABLE PARTY KNOWS OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE BEING INCURRED AND REGARDLESS OF WHETHER OR NOT THE LOSS OR DAMAGE WAS FORESEEABLE.

(b) EXCEPTIONS: THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 14(a) DO NOT APPLY TO: (a) LIABILITY FOR PERSONAL INJURY TO OR THE DEATH OF AN INDIVIDUAL; (b) THE OBLIGATIONS SET FORTH IN SECTION 15 (INDEMNITY); OR (c) LIABILITY FOR BREACH OF ANY OF THE OBLIGATIONS SET FORTH IN SECTIONS 5(c), 9(b), 9(c), 10(b), 10(c), 10(d), AND 10(e).

15. Indemnity

(a) Definitions: In this Agreement: (i) “Claims” means all losses, damages, personal and bodily injuries, property damage, claims, counterclaims, complaints, disputes, demands, causes of action, liabilities, obligations, damages, reasonable legal fees, costs, expenses, and disbursements (including reasonable legal fees and disbursements as between solicitor and own client) of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal; and (ii) “ Proceedings” means all actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.

(b) General Indemnity: Subject to sections 15(c) and 15(d), each Party (the “Indemnifying Party”) will defend, indemnify, and save and hold harmless the other Party (the “ Indemnified Party”) and its Representatives from and against all third party Claims and third party Proceedings directly or indirectly arising from, connected with, or relating to the performance of the Indemnifying Party’s obligations under this Agreement or any breach of this Agreement or negligence or wrongful conduct by the Indemnifying Party or any person for whom the Indemnifying Party is under this Agreement or in law responsible.

(c) Mutual Indemnity: If any third party Claim or third party Proceeding gives rise to an indemnity obligation by both Parties pursuant to section 15(b), the liability of each Party to indemnify the other Party or its Representatives will be apportioned and offset in proportion to the responsibility of each Party for the matter giving rise to the third party Claim or third party Proceeding.

(d) Indemnity Procedure: Notwithstanding sections 15(b) and 15(c), the Indemnifying Party’s obligations are conditional upon the Indemnified Party and its Representatives (if applicable): (i) giving the Indemnifying Party prompt notice of the third party Claim or third party Proceeding (provided that a failure to give prompt notice will only relieve indemnifying Party of its obligations if the failure to give prompt notice has caused, or is likely to cause, prejudice to indemnifying Party); (ii) granting control of the defence and settlement of the third party Claim or third party Proceeding to the Indemnifying Party (provided that a third party Claim or third party Proceeding will not be settled without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed); and (iii) reasonably co-operating with the Indemnifying Party regarding the defence and settlement of the third party Claim or third party Proceeding at the Indemnified Party’s expense. Notwithstanding anything contained in this Agreement to the contrary, the Indemnified Party and its Representatives (if applicable) retain the right to participate in the defense of and settlement negotiations relating to any third party Claim or third party Proceeding with counsel of their own selection at their sole cost and expense.

16. Term and Termination

(a) Term: This Agreement will commence on the Effective Date and will continue in full force and effect unless and until terminated by either Party in accordance with this section 16 (the “Term”).

(b) Termination for Convenience: Either Party may terminate this Agreement for the Party’s sole convenience effective upon thirty (30) days’ notice of termination to the other Party.

(c) Termination for Cause: Notwithstanding any other provision of this Agreement, either Party may in its discretion terminate this Agreement for cause effective immediately upon notice of termination to the other Party if the other Party breaches this Agreement and has not remedied the breach within seven (7) days after receipt of a notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the other Party does not cure the breach within seven (7) days.

(d) Consequences of Termination: Upon termination of this Agreement for any reason: (i) Webnames.ca will convert all Child Accounts to independent Accounts held by the relevant Customer, and Reseller will no longer have any administrative privileges regarding those Accounts or any related Domain Names or services registered or ordered through those Accounts; (ii) Webnames.ca will cancel the Landing Page and all Reseller Codes; (iii) Reseller will immediately remove the Promotional Pages from Reseller’s Website; (iv) Reseller will immediately cease using Reseller Codes; (v) Reseller will immediately cease using and promptly return to Webnames.ca all Marketing Materials in Reseller’s possession or control; and (vi) Webnames.ca will pay to Reseller all outstanding and unpaid Referral Fees, provided that Webnames.ca may in its discretion withhold the payment of Referral Fees for up to ninety (90) days to avoid overpayment to Reseller as a result of refunds, returns, rebates, charge backs or other reasons.

(e) Suspension: Notwithstanding any other provision of this Agreement, Webnames.ca may in its discretion at any time, and without any notice or liability to Reseller or any other person, suspend Reseller’s participation in the Program if Webnames.ca reasonably believes that Reseller has breached any of Reseller’s obligations under this Agreement.

(f) Survival: Notwithstanding any other provision of this Agreement, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the termination of this Agreement for whatever reason and will remain in full force and effect and be binding upon the Parties: sections 9(c), 10(d), 11(d), 11(e), 13(b), 13(c), 13(d), 14, 15, 16(d), 16(f) and 17.

17. General

(a) Reservation/Relationship: All rights not expressly granted under this Agreement are reserved to the Parties. Notwithstanding any other provision of this Agreement, the arrangement and relationship between the Parties is non-exclusive, and nothing in this Agreement in any way limits, impairs or restricts either Party’s right and ability, and each Party reserves the right and ability from time to time in its discretion, to enter into similar arrangements with other persons. The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties.

(b) Interpretation: In this Agreement: (i) a reference to “this Agreement” and other similar terms refers to this Agreement as a whole, and not just to the particular provision in which those words appear; (ii) headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iii) words importing the singular number only include the plural and vice versa; (iv) reference to a day, month, quarter or year means a calendar day, month, quarter or year, unless expressly stated otherwise; (v) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (vi) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vii) “law” includes common law, equity, statutes, regulations, ordinances and orders in council, and reference to a specific law includes all regulations, and ordinances and orders in council and mandatory guidelines and directives made or issued under the law; and (viii) “ discretion” or “option” means a person’s sole, absolute and unfettered discretion or option (as applicable). Reseller expressly requests and requires that this Agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en Anglais.

(c) Force Majeure: Notwithstanding any other provision of this Agreement, neither Party will be liable for any delay in performing or failure to perform any of the Party’s obligations under this Agreement to the extent performance is delayed or prevented due to a cause that is beyond the Party’s reasonable control. Any delay or failure of that kind will be deemed not a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

(d) Notices: All notices to be given under this Agreement will be in writing. Reseller will deliver all notices to Webnames.ca under this Agreement by courier or personal delivery or facsimile transmission to Webnames.ca’s head office address specified on the Webnames.ca website, Attention: President. Webnames.ca may deliver notices to Reseller by email or facsimile transmission to Reseller’s email address specified in Reseller’s account information Webnames.ca has on file or by email to the administrative contact for any Domain Name registered by Reseller through Webnames.ca.

(e) Miscellaneous: If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. No consent or waiver by Webnames.ca to or of any breach by Reseller of this Agreement will be effective unless in writing and signed by Webnames.ca, or deemed or construed to be a consent to or waiver of a continuing breach or any other breach by Reseller of this Agreement. If Webnames.ca’s consent or approval is required under this Agreement, then Webnames.ca may in its discretion and for its sole convenience withhold or refuse the consent or approval. This Agreement will enure to the benefit of and will be binding upon the Parties and their respective successors and permitted assigns. Certain provisions of this Agreement expressly benefit the Parties’ respective Representatives, each of whom is an intended third party beneficiary to this Agreement and is entitled to independently enforce the applicable provisions of this Agreement for its own benefit. Reseller will not assign, transfer, delegate, license, sub-license or grant this Agreement or Reseller’s rights, duties and obligations under this Agreement without Webnames.ca’s express prior written consent, which consent may be withheld in Webnames.ca’s discretion. Webnames.ca may, without Reseller’s consent, assign this Agreement and any of Webnames.ca’s rights, duties or obligations under this Agreement, and Webnames.ca may engage subcontractors to perform Webnames.ca’s duties and obligations under this Agreement Except as expressly set forth in this Agreement, Webnames.ca’s rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which Webnames.ca may be lawfully entitled under this Agreement or at law, and Webnames.ca will be entitled to pursue all of its rights and remedies concurrently, consecutively and alternatively. Each of the Parties will execute any further documents and do any further acts or things that may be necessary to implement and carry out the intent of this Agreement .

(f) Governing Law and Dispute Resolution: This Agreement and the subject matter of this Agreement and all related matters are and will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods. All disputes between the Parties arising from, connected with or relating to this Agreement or the subject matter of this Agreement or any related matters will be determined by the Supreme Court of British Columbia sitting in the City of Vancouver, British Columbia, and the Parties each hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court for those purposes.

(g) Complete Agreement: This Agreement sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. Except as expressly set forth in section 1(c), this Agreement may be modified only by a written instrument signed by both Parties or their successors or permitted assigns.

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