Terms and Conditions of Service

RESELLER TERMS AND CONDITIONS OF SERVICE

BETWEEN You

AND KangaWeb

By joining the KangaWeb Reseller Program, You agree to the following Terms and Conditions of Service.

RECITALS

This is a legal agreement between You and KangaWeb.

Before joining the KangaWeb Reseller Program, You must read the Agreement and accept its terms and conditions.

If You do not wish to be bound by the terms and conditions of the Agreement, You MUST NOT join the Reseller Program offered by KangaWeb.

Definitions

"account" means all aspects of the Service provided to you under this Agreement.

"Agreement" means these Terms and Conditions of Service.

"Claim" means any action, claim, demand, cost, loss, damage, (whether special, indirect, consequential, general or any other damage), expense or other liability (including for death and injury, and the costs of defending or settling any Claim) whether arising in contract, negligence or any other tortious action.

"Client" means any person to whom KangaWeb provides the Service.

"domain parking" means one or more domain names pointing to Your website, or any part of it.

"Force Majeure" means circumstances beyond the control of a party which includes (but is not limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer), acts of war (declared or undeclared) or terrorism.

"General Terms and Conditions" means the terms and conditions of service specified at http://www.kangaweb.com/terms.html.

"KangaWeb", "we", "our" and "us" means KangaWeb Technologies Pty Ltd (ACN 094 264 310), a company incorporated under the Corporations Act 2001.

"KangaWeb Site" refers to all websites that are used by KangaWeb to provide current and potential Clients with information relating to our products and services.

"person" includes an individual, a body corporate, office, commission, authority, committee, tribunal, board, institute, organization or other body however described.

"Reseller" means any Person who joins the KangaWeb Reseller Program.

"Reseller Account" means Your membership of our Reseller Program and all related services.

"Reseller Gold Master Account" refers to the 300MB web hosting package that is included with our Reseller Gold plan.

"Reseller Program" means all Reseller services offered by KangaWeb including, but not limited to, the Flexible Reseller and Reseller Gold plans.

"Resold Account" means any hosting package or other service that is purchased from KangaWeb by You through our Reseller Program.

"Servers" means all Servers owned or operated by KangaWeb, and which You may access or use, pursuant to the Agreement or otherwise, as a result of KangaWeb providing the Service.

"Service" means the hosting of Your website and related services on Servers operated by KangaWeb, including access to Your website by You or any other person.

"website" includes all aspects of the Service (website, mail facilities, FTP access etc).

"You" and "Your" means the person who agrees with KangaWeb to have a website hosted on Servers operated by KangaWeb.

Order Details and Processing

You confirm that the details You have provided to KangaWeb when placing Your application to join our Reseller Program are complete and correct.

We reserve the right to decline Your order. If Your order is declined then we will refund Your associated payment (if any) within seven days.

Joining the Reseller Program

Any Person may apply to join the KangaWeb Reseller Program. KangaWeb reserves the right to accept or reject applications to join the Reseller Program at our sole discretion.

After joining the KangaWeb Reseller Program, You must ensure that the email address that You have provided us with as Your customer contact email address remains up-to-date. Your customer contact email address will be used for all correspondence between You and KangaWeb (technical support, invoicing etc), so You must be contactable via the address at all times.

Reseller Discounts

Reseller discounts apply to both the setup fees and monthly hosting fees of all hosting plans, as advertised on the KangaWeb Site. You will also have access to discounts on the purchase of SMS credits, however these discounts vary from the general Reseller discount rate. Current SMS prices can be found on the KangaWeb Site.

Reseller discounts do not apply to the purchase of additional Reseller Gold Master Accounts nor do they apply to hosting account add-on fees, excess traffic fees and excess disk use fees.

Liability for Use of Accounts

You are responsible for and liable for the conduct of Your clients on our servers. You are therefore required to ensure that You, and Your clients, adhere to all of the terms and conditions expressed in our General Terms and Conditions. If there is conflict between this document (Reseller Program Terms and Conditions) and our General Terms and Conditions document then the terms and conditions expressed in this document will apply.

Access To Servers

You must ensure that all clients are properly identified before allowing them to have access to the Servers. It is common for hackers, spammers and other computer criminals to attempt to gain access to Internet servers by signing up for hosting packages under false names, addresses etc. It is therefore critical that You ensure that You know the identity of all Your clients before You purchase a hosting package for them. For further details on screening orders please see the Reseller Handbook.

Technical Support

You are expected to be generally self-sufficient in providing technical support to Your clients. KangaWeb will not provide direct support to Your clients. If You are unsure how to respond to a client's query or if You have insufficient access to Your client's website to resolve a query, KangaWeb will provide support to You so that You can, in turn, assist Your customer.

Notice

You agree to correspond with KangaWeb via our Support Request Form. If KangaWeb needs to contact You for any reason we will do so via email only.

You agree to notify us promptly of any changes to Your email address or other contact details.

Billing

You are responsible for collecting all monies due from Your own customers. You may charge Your own clients any price You feel the market will bear.

You will pay KangaWeb directly for all Resold Accounts. Your billing cycle will be monthly in advance. Approximately one week before Your monthly payment is due, You will receive a single monthly invoice which will include fees for all Resold Accounts.

Your billing date will be the day of the month on which You set up Your first resold account:

• For Reseller Gold clients this is the day of the month that You sign up as a Reseller.
• For Flexible Resellers this is the day of the month on which You order Your first resold account.

Your "billing cycle" is the period from Your billing date up to and including the day before the following billing date.

The fees for any additional Resold Accounts that You purchase will be calculated on a pro-rata basis using the initial billing date described above. That is, after You set up a new Resold Account, Your next invoice would contain the following fees for that Resold Account:

• The setup fee for the Resold Account (if applicable);
• A pro-rata charge for the Resold Account for the period from the setup date up to and including the day before Your next billing date;
• The charge for the next month of hosting for the Resold Account

The above charges for new Resold Accounts are designed to make the billing cycle for every Resold Account the same as Your main billing cycle, so that subsequent invoices can contain a simple monthly charge for each continuing Resold Account.

Upon receiving Your invoice, if You do not want to be charged the next months hosting for a particular Resold Account (e.g. because Your client decides to discontinue their hosting), You must cancel the Resold Account prior to the start of the billing cycle which appears on your invoice. The charge for the cancelled account will not be removed from the current invoice however the amount that You overpay will be automatically credited to Your next invoice.

If You cancel a Resold Account on or after the first day of a billing cycle then no refund will apply for that billing cycle. Refunds only apply for accounts cancelled prior to the start of the billing cycle.

If you set up and then cancel a Resold Account in the same billing cycle, You will be charged the setup fee and pro-rata monthly fee for the Resold Account.

For a detailed billing example please see the Reseller Handbook.

Except in the circumstances outlined above, all fees are non-refundable.

Contact With Your Customers

We will endeavour to remain anonymous to the Your clients at all times. KangaWeb will not provide support to Your customers.

Prices

Prices are subject to change without notice. Any change in monthly fees will apply to Your next billing cycle, but will not be payable for Your current billing cycle.

Transferring Non-resold Accounts to Your Reseller Account

If You have previously referred clients to KangaWeb through our Affiliate Program, or You hold other non-resold accounts with KangaWeb, You can transfer up to five (5) of these non-resold accounts to Your Reseller Account under the following conditions:

• You must be listed as the registered affiliate or account holder for the hosting account;
• The hosting account must have been hosted by KangaWeb for at least 6 months;
• The account holder must confirm to us that they wish to move their hosting account to Your Reseller Account.

If You would choose to transfer up to five (5) non-resold accounts that meet the requirements above, the following fees apply:

• If You are currently a Reseller, no fees apply to the transfer of non-resold accounts to Your Reseller Account.
• If You are not currently a Reseller and would like to join our Flexible Reseller Program, again no fees apply to the transfer of non-resold accounts to Your Reseller Account.
• If You are not currently a Reseller and would like to join our Reseller Gold program, the Reseller Gold setup fee applicable at the time that You join will apply for Your Reseller Gold Master Account. You may choose to upgrade an existing hosting account to Your Reseller Gold Master Account if you wish (the applicable setup fee will apply). Other than the Reseller Gold Master Account setup fee, no other charges apply to the transfer of non-resold accounts to Your Reseller Account.

Please note that any fees paid for a non-resold account prior to transferring it to Your Reseller Account are non-refundable. You will be billed for the hosting account as soon as it is transferred. Therefore we recommend that You transfer non-resold accounts to Your Reseller Account just prior to the end of the current billing cycle for the non-resold account.

KangaWeb reserves the right to disallow account transfers at our discretion.

Upgrading from a Flexible Reseller to a Reseller Gold

If You wish to upgrade Your Reseller Account from the Flexible Reseller to the Reseller Gold plan, You must either:

• Upgrade one of Your existing Resold Accounts to a Reseller Gold Master Account, or
• Place an order for a new Reseller Gold Master Account.

The Reseller Gold setup fee applicable at the time that you upgrade applies in both of the above cases.

Once Your Reseller Gold Master Account has been set up, You need to contact us and request that the resold accounts under Your Flexible Reseller account be transferred to Your Reseller Gold account. No fees are payable for transferring these resold accounts.

Any fees outstanding on Your Flexible Reseller account will be transferred to Your new Reseller Gold account, and charged at the new rate(s).

Downgrading from a Reseller Gold to a Flexible Reseller

If You wish to downgrade Your Reseller account from a Reseller Gold to a Flexible Reseller, You must first sign up as a Flexible Reseller.

Once You have joined the Flexible Reseller plan, You need to contact us and include in your message:

• The type of hosting package that Your Reseller Gold Master Account should be downgraded to (our standard downgrade fee will apply)
• A request that the Resold Accounts under Your Reseller Gold account be transferred to Your Flexible Reseller account. No fees are payable for transferring these Resold Accounts, however the Flexible Reseller pricing structure will apply from the date of the transfer.

Any fees outstanding on Your Reseller Gold account will be transferred to Your new Flexible Reseller account, and charged at the new rate(s).

Gigablock Accounts

The advertised limits applying to the Gigablock plan, including but not limited to disk space limits, traffic limits, number of POP accounts included and so on, are based on allocation rather than use. That is, you cannot oversell your Gigablock account's facilities by allocating more than the advertised space, traffic, and features for your Gigablock.

When you create individual hosting accounts within your Gigablock, when the relevant individual account holder logs in to your Customer HQ, they will be presented with details of how much disk space and traffic are allocated to their individual account.

The maximum amount of space which can be allocated to an individual account within your Gigablock is 250MB. The maximum amount of traffic that can be allocated to an individual account within your Gigablock is 10GB.

Once you have allocated space, bandwidth and other features to an individual hosting account within your Gigablock you can change those allocations (within the constraints of your Gigablock) but a once-off fee applies for each change. You can also purchase Add-On features such as Domain Parking if you wish, but our normal charges apply for those Add-On features.

Apart from the exceptions noted within this "Gigablock Accounts" section, individual accounts within your Gigablock are subject to the same terms and conditions as other Resold Accounts as specified at http://www.kangaweb.com/terms.html.

Leaving the Reseller Program

You may withdraw from the program at any time. In such circumstances, any continuing resold accounts will be charged at the normal retail price. You will continue to be responsible for any payments due from continuing resold accounts unless other arrangements are made with the consent of both KangaWeb and the Your continuing clients.

Refusal of Service

We reserve the right to refuse or cancel service at our sole discretion.

Modifications to Service

KangaWeb reserves the right to modify or discontinue the Service (or any part thereof) as we see fit, with or without notice. You agree that KangaWeb will not be liable to You or any other party for such modifications to the Service.

KangaWeb reserves the right to update these Terms and Conditions from time to time. Any updates to these Terms and Conditions will apply to the Service from the time that this Agreement is updated on the KangaWeb site.

Right to Outsource

At our sole discretion, we may outsource the Services or the performance of any work, or part thereof, relating to the Services to any party as we see fit.

Intellectual Property

You agree to indemnify, hold harmless and defend at your own expense us from and against any and all Claims for infringement of copyright, patents, trade marks, industrial designs or other intellectual property rights issued under the laws of any country where the copyright, patents, trade marks, industrial designs or other intellectual property were provided by you, or where you represented, expressly or impliedly, that the copyright, patents, trade marks, industrial designs or other intellectual property were your intellectual property.

We undertake to give you prompt notice of any Claim described above that is made against us or any of our subsidiaries, dealers or customers and you will forthwith defend any such Claims and make settlements thereof at your own expense.

You acknowledge that any and all of the copyright, patents, trade marks, industrial designs or other intellectual property rights used or subsisting in or in connection with our business, marketing and/or support material relating to our business and all documentation and manuals relating thereto are and will remain our property and you will not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by us thereof.

You will not, during or after the expiry or termination of this Agreement, without the prior written consent of us, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by us.

Severability

If any part of this Agreement is deemed to be unenforceable or otherwise invalid then that will not affect the validity nor enforceability of any other parts of this agreement.

Jurisdiction

This agreement shall be interpreted under the laws of the Australian Capital Territory (ACT), Australia, and both parties agree that any legal action or proceedings relating to this agreement shall be settled in the courts and/or tribunals in the Australian Capital Territory (ACT), Australia.

Force Majeure

Neither party will be liable to the other party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of Force Majeure.

Waiver

Failure or neglect by us to enforce, at any time, any of the provisions of this Agreement will not be construed or deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement or prejudice our rights to take subsequent action.

Headings

The headings of the terms and conditions contained in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.

Assignment

You may not assign, attempt to assign nor otherwise transfer any right or obligation arising out of this Agreement without our written consent.

Limitation of Liability

WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE ADVICE PROVIDED TO YOU AND/OR YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES.

YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.

NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE AUSTRALIAN PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION) PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).

Disclaimer

We make no statement, warranty, representation or promise not expressly set out in the Agreement, or required by law. We expressly disclaim all warranties, representations or promises in relation to the Service.

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