Standard Peakhour Reseller Agreement

This Agreement sets forth the terms and conditions between Peakhour.io Pty Ltd (ABN 76 619 930 826) (Peakhour) and the entity whose details are attached to this Agreement (Reseller). Peakhour provides software as a service which acts as an intermediary between a client's website and the users of that website. The Reseller wishes to be appointed to act as a reseller of that service and to provide certain support services in accordance with the terms of this Agreement.

  1. Interpretation
    1. In this Agreement, the following terms have the stated meaning:
      Acceptable Use Policy
      means the policy set out in Schedule 2.
      Client
      means each licensee of the Service.
      Client Licence Agreement
      means a licence agreement between the Reseller and each New Client.
      Confidential Information
      means the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.
      Discount
      means a discount of [xx] on the Fees.
      Documentation
      means all documentation provided by Peakhour to the Reseller in respect of the Service, including marketing materials (if any) which Peakhour chooses to make available.
      Existing Client
      means a Client that has acquired a licence of the Service from any entity other than the Reseller (including Peakhour).
      Fees
      means the fees payable by the Reseller to Peakhour as set out in clause 7.4 in each case less the Discount.
      Force Majeure
      means an event that is beyond the reasonable control of a party, excluding:
      (a) an event to the extent that it could have been avoided by that party taking reasonable steps or reasonable care; or
      (b) a lack of funds for any reason.
      Governing Law
      means the law of New South Wales, Australia.
      Intellectual Property Rights
      means all forms of intellectual property rights throughout the world including copyright, registered patents, design, trade mark, know-how, trade-secrets and confidential information, and includes any enhancement, modification or derivative work based on the same.
      Interest Rate
      means the interest rate equivalent to 2% above the Reserve Bank of Australia cash rate target from time to time.
      New Client
      means a Client other than an Existing Client. For the avoidance of doubt, if an Existing Client terminates its licence and signs a Client Licence Agreement with the Reseller, that entity will become a New Client.
      Objectionable
      means objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
      Page Views
      means each time a page of the Website is successfully loaded, including by the same IP address as recorded by the Service. For the avoidance of doubt, a page view will not be counted where the Service blocks a request to a page of the Website.
      Peakhour Data
      means all data, content and information collected, held, used, created, or processed by Peakhour in the course of this Agreement (excluding Reseller Data), including the IP Address, browser, request path, query string, headers of each request submitted by an end user and other meta data in respect of each Website.
      Peakhour Report
      means a report containing the information, and in the format, set out in Part B of Schedule 1 to be provided within 15 days of the end of each Report Period or as otherwise agreed by the parties.
      Peakhour Support Services
      means the services to be provided by Peakhour to the Reseller on behalf of the New Clients as set out in Part A of Schedule 1.
      Personal Information
      has the meaning given in the Privacy Act 1988 (Cth) and the Australian Privacy Principles attached to that Act.
      Reseller Data
      means all data, content, configurations and credentials of, or related to, a Website, including:
      (a) all assets, information and materials on the Website, including images, CSS and content; and
      (b) the public and private encryption keys for that Website.
      Report Period
      is monthly.
      Reseller Support Services
      means first level support to Client and such other support services to be provided by the Reseller to the New Clients as agreed by them from time to time.
      Service
      means the peakhour.io software as a service, which acts as an intermediary between the Website and the users of the Website.
      SLA
      means the Service Level Agreement applicable to the Reseller.
      Step In Rights
      means Peakhour's rights to deal directly with each New Client in the Reseller's place under clause 15.1.
      Term
      means the period from the start of this Agreement until termination or expiry of this Agreement, comprising the:
      Initial Term of 12 months; and any
      Rolling Term of 12 months.
      Territory
      means the world.
      Training Services
      means the services to be provided by Peakhour to the Reseller as set out in Part A of Schedule 1.
      Website
      means each website of a New Client in respect of which the Service is operating.
      Trial Period
      means the 14 day trial period of the Service which may be offered to prospective Clients.
    2. In this Agreement:
      1. capitalised terms used in this Agreement that are not defined in clause 1.1 have the meaning given them in the Schedules as applicable;
      2. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
      3. words in the singular include the plural and vice versa;
      4. a reference to:
        1. a party to the Agreement includes that party's permitted assigns;
        2. personnel includes officers, employees, contractors and agents, but a reference to the Client's personnel does not include Peakhour;
        3. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
        4. including and similar words do not imply any limit;
        5. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
        6. $ or dollars is a reference to Australian dollars;
      5. no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and
      6. to the extent of any conflict, these General Terms prevail over the Schedules unless otherwise expressly stated.
  2. Term
    1. This Agreement will commence on the date of this Agreement and continue for the Initial Term. At the end of the Initial Term, or any subsequent Rolling Term, this Agreement will automatically extend for a further Rolling Term unless terminated in accordance with the terms of this Agreement.
  3. Appointment
    1. Peakhour appoints the Reseller as its non-exclusive reseller in the Territory for the Term. During the Term, the Reseller is licensed and authorised (on a non-assignable, revocable basis) to:
      1. access and use the Service and Documentation only and in accordance with this Agreement;
      2. market the Service;
      3. resell the Service to New Clients by granting the New Client a non-assignable, revocable sub-licence to access and use the software forming part of the Service; and
      4. provide the Reseller Support Services to New Clients.
    2. The Reseller must not knowingly market the Service to, or approach, any Existing Client without Peakhour's prior written consent.
  4. Peakhour's obligations
    1. Peakhour will, at its own cost, provide to the Reseller for the benefit of each New Client, the Peakhour Support Services as described in Schedule 1.
    2. Peakhour will, at the Reseller's request, provide Training Services to assist the Reseller to meet the performance standards set out in Schedule 1. The fee for the training services and related travel expenses (if any) will be quoted by Peakhour and must be paid by the Reseller in advance.
    3. Peakhour will use its reasonable efforts to provide its services to the Reseller:
      1. in accordance with this Agreement and all applicable laws;
      2. exercising reasonable care, skill and diligence; and
      3. using suitably skilled, experienced and qualified personnel.
    4. In respect of each Report Period, Peakhour will provide the Reseller with the Peakhour Report.
    5. Peakhour may, at the Reseller's request, provide additional services outside of the Training Services. Peakhour will quote for those services, including any applicable travel expenses, at the time and before providing such additional services.
  5. Reseller's obligations
    1. The Reseller must use its reasonable endeavours to market and sell the Service to potential new customers.
    2. The Reseller must:
      1. ensure that each New Client enters into a Client Licence Agreement with the Reseller, which must, at a minimum, include terms equivalent to the following:
        1. that the Service is provided on a non-exclusive, non-assignable, revocable basis only and that the Client does not obtain title to any intellectual property rights in the Service;
        2. that the Client grants the Reseller a worldwide, non-exclusive, revocable, transferable licence to store, copy, transmit and display its data that is processed through the Service;
        3. an acknowledgement that the Service will decrypt and re-encrypt all incoming and outgoing traffic;
        4. that the Service may only be used in accordance with the Acceptable Use Policy or a policy that is functionally equivalent to the Acceptable Use Policy;
        5. that the Client must use its reasonable endeavours to prevent any unauthorised access to, or use of, the Service;
        6. that the Client must notify the Reseller of any actual or suspected:
          1. fault or defect in the Service;
          2. unauthorised access to, or use of, the Service;
          3. breach of the Acceptable Use Policy;
      2. provide the Reseller Support Services to each New Client.
      3. comply with the Acceptable Use Policy;
      4. comply with the reasonable instructions of Peakhour and any Documentation;
      5. notify Peakhour as soon as it becomes aware of any actual or suspected:
        1. fault or defect in the Service and to use its best endeavours to assist Peakhour in the diagnosis of any such fault or defect;
        2. any unauthorised access to, or use of, the Service; or
        3. any breach of the Acceptable Use Policy.
    3. The Reseller must not, without Peakhour's prior written consent (which may be given or withheld at Peakhour's absolute discretion) in each instance:
      1. modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Service in any way;
      2. bundle, package or otherwise distribute the Service with or as part of, any other product or collection of products; or
      3. include in any Client Licence Agreement any term that is inconsistent with the terms set out in clause 5.2(a) of this Agreement.
    4. The Reseller is responsible for ensuring its personnel comply with the Reseller's obligations under this Agreement. A breach of any term of the Agreement by the Reseller's personnel, or as a result of any action by any third party, is deemed to be a breach of this Agreement by the Reseller.
    5. The Reseller is responsible for ensuring each New Client complies with the Client Licence Agreement and the terms set out in clause 5.2(a) of this Agreement. A breach of any of the terms set out in clause 5.2(a) of this Agreement by the New Client, or as a result of any action by any third party, is deemed to be a breach of this Agreement by the Reseller.
    6. If Peakhour notifies the Reseller of any third party report that any activities by any of the Reseller's end users, or any activities by the Reseller are in breach of any law or regulation, the Reseller must promptly (and in any event within three business days) take all appropriate steps in response to the third party report including by (as between the Reseller and Peakhour) taking responsibility and liability for the report.
    7. The Reseller must hold and maintain prudent insurance policies during the Term including professional indemnity insurance, public liability insurance and worker's compensation insurance (or equivalent insurance, if applicable in the Territory). The Reseller must provide Peakhour with copies of the certificates of currency of the required insurance policies as requested by Peakhour.
  6. Service levels
    1. Peakhour will use its reasonable efforts to ensure the Service is available to the Reseller in accordance with the SLA. To the extent that the Service is not available for the agreed Uptime, Peakhour will use its reasonable endeavours to provide a workaround.
    2. In the event Peakhour fails to comply with clause 6.1, the Reseller's sole remedy will be as set out in the SLA.
    3. The Reseller acknowledges that the Service relies on a range of third party products and services, including third party rulesets, software libraries, blocklists, and ISP services. Peakhour does not make any warranty or representation in respect of those products or features, including as to their availability or accuracy. Without limiting the previous sentence, if a third party feature provider ceases to provide that product or service or ceases to make that product or service available on reasonable terms, Peakhour will use its reasonable endeavours to replace that product or service, or otherwise provide a workaround.
  7. Fees
    1. Before the Service is initially provided to a New Client, the Reseller must advise Peakhour of the relevant package (as outlined on Peakhour's pricing page) for that New Client (Package).
    2. Unless the Reseller advises Peakhour that a New Client has cancelled or changed its Package before the end of the then current Report Period, the Package will be deemed to have been automatically renewed and the Reseller will be liable to Peakhour for the relevant Fee as set out in clause 7.4.
    3. The Reseller may, by prior notice to Peakhour, change a New Client's selected Package at any time. Where the new Package has a lower licence fee (as outlined on Peakhour's pricing page), the Reseller will be entitled to a pro-rata credit to the Reseller's account for the difference in any amount pre-paid by the Reseller for the remainder of the Report Period. This credit is not refundable. Where the New Package has a higher licence fee (as outlined on Peakhour's pricing page), an invoice will be issued by Peakhour for the difference.
    4. The Reseller is solely responsible for collecting any applicable fees from the New Clients. The Reseller acknowledges that the failure of the New Client to pay the Reseller does not affect the Reseller's liability to Peakhour to pay the following amounts in respect of each New Client (together, the Fees):
      1. the non-refundable set up Fee (if any) (as outlined on Peakhour's pricing page) on that New Client finishing the Trial Period or if no Trial Period was offered, on commencement of the Client Licence Agreement;
      2. the relevant licence fee (as outlined on Peakhour's pricing page) for each New Client's nominated Package, payable in advance at the start of each Report Period; and
      3. during any Report Period in which the actual Page Views for a New Client exceed the allocated Page Views for the New Client's Package as set out in the Peakhour Report for that Report Period, the excess fee (as outlined on Peakhour's pricing page). Excess fees will be automatically charged, along with the licence Fee renewal, to the Reseller at the start of the next Report Period.
    5. Peakhour may increase any, or all, of the Fees by giving the Reseller reasonable notice of the proposed increase. During that notice period, the Reseller may terminate this Agreement by giving notice to Peakhour. If the Reseller does not terminate this Agreement, the Reseller is deemed to accept the increase to the relevant Fee or Fees.
  8. Terms of payment
    1. The Reseller acknowledges and agrees that Peakhour's payment provider will collect and store its credit card details.
    2. The Reseller authorises Peakhour's payment provider to automatically debit its credit card for all Fees at the same time Peakhour issues its invoice. Where the Reseller's credit card is based in a currency other than Australian dollars, the Reseller acknowledges that payment will be debited at the then current conversion rate.
    3. It is the Reseller's responsibility to maintain and update its credit card details and ensure there are sufficient funds available for the Fees. If a payment fails for any reason, Peakhour will notify the Reseller and re-attempt the payment the next business day. If the payment fails three times, Peakhour will suspend the Service for the affected Client.
  9. Data and personal information
    1. The Reseller must, at all times, comply with the provisions of the Privacy Act 1988 (Cth) and the Australian Privacy Principles as though it is an APP entity (as that term is defined in the Privacy Act) to the extent that it is not.
    2. During the Term, the Reseller grants Peakhour a worldwide, non-exclusive, revocable licence to store, copy, transmit and display Reseller Data; to grant any third party that provides services to Peakhour that interoperate with the Service a sub-license to the extent necessary for that third party to provide those services to Peakhour; and to use such Reseller Data to improve Peakhour's Services. The Reseller warrants that it has the authority to grant such licence to Peakhour.
  10. Intellectual Property
    1. Title to all Intellectual Property Rights in the Service and all Peakhour Data is and remains the property of Peakhour (and its licensors).
    2. If the Reseller provides Peakhour with ideas, comments, suggestions, modifications, customisations, improvements or enhancements to the Service (together Feedback) all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback, are owned solely by Peakhour. To the extent the Reseller owns any Intellectual Property Rights in that Feedback, the Reseller hereby assigns those Intellectual Property Rights to Peakhour (including as a present assignment of future copyright).
    3. Unless Peakhour expressly agrees otherwise, the Reseller must not refer to, or use, 'PEAKHOUR' or any other trade mark, brand name, or logo of Peakhour in relation to the Service (or any identical or similar trade mark, brand name or logo). If Peakhour does grant the Reseller a licence to use such intellectual property, the Reseller agrees to comply with Peakhour's branding guidelines.
    4. To the extent that the Reseller creates marketing materials in respect of the Service, Peakhour may acquire a perpetual, irrevocable, sub-licensable licence to use such marketing materials from the Reseller on terms to be agreed in good faith at good time, but which shall be at a price no more than the actual third party costs incurred by the Reseller in developing such marketing materials.
    5. The Reseller must not apply for any trade marks, domains or business names which are the same, or similar to, or which contain, any Peakhour trade mark or brand name.
    6. Title to all Intellectual Property Rights in the Reseller Data is and remains the property of the Reseller.
  11. Confidentiality
    1. A party may not disclose or provide any unauthorised copies of any Confidential Information of a party to any person except:
      1. after obtaining the written consent of the other party;
      2. to its officers, employees and professional advisers on a need to know basis; or
      3. as required by an applicable law, after first consulting with the other party/parties about the form and content of the disclosure,
      and must use its best endeavours to ensure all permitted disclosures are kept confidential, other than a disclosure to a recognised stock exchange.
    2. Neither party will make any public announcement, disclose any information, or allow expressly or by default any other person to disclose information about this Agreement without having first obtained the approval in writing of the other party.
  12. Warranties
    1. Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
    2. Except as otherwise required by law:
      1. Peakhour gives no representation or warranty, express or implied, with respect to the functionality, performance, accuracy, completeness or fitness for purpose of the Service, the Training Services or the Peakhour Support Services;
      2. Peakhour does not warrant that the Service will be uninterrupted, error free, or that it will meet any anticipated benefit or purpose or any other warranty regarding security, reliability, data integrity or protection from third party attacks; and
      3. the Service and Documentation is provided on an 'as is' and 'as available' basis.
    3. If a condition or warranty cannot be excluded by contract, the condition or warranty is deemed to be included in the Agreement. To the extent permitted by law, Peakhour's maximum liability for any breach of that condition or warranty is limited to supplying the Service again for the same period as the duration of the breach.
  13. Liability
    1. The maximum aggregate liability of Peakhour under or in connection with the Agreement or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Fees paid by the Reseller in the 12 months preceding the event giving rise to the claim in respect of the Service to the Reseller's client that is the subject of the claim.
    2. Neither party is liable to the other under or in connection with the Agreement or the Service for any consequential loss, including loss of profit, revenue, savings, business, data, goodwill and any other indirect, incidental or special damage or loss of any kind.
    3. Except to the extent permitted by law, Peakhour will have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings resulting from the acts or omissions or any New Client; any claim, loss, action, damage, suit or proceeding suffered or incurred by a New Client as a result of the termination or suspension of the Reseller's rights under this Agreement for any reason; security breaches (including interception of traffic sent or received by the Service); release, exposure, loss of, or loss of access to Reseller Data, including Personal Information of any New Client; actions of third parties, including deliberate interference with the Service by third parties; and mistakes, omissions, interruptions, defects or other failures of the Service or third party products and services incorporated into the Service.
    4. Clauses 13.1 and 13.2 do not apply to limit a party's liability under or in connection with the Agreement for personal injury or death.
    5. Clause 13.1 does not apply to limit the Reseller's liability to pay the Fees.
    6. Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, by the negligence or misconduct of the other party or its personnel, or by an event of Force Majeure.
    7. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
  14. Indemnity
    1. The Reseller will defend, indemnify and hold harmless Peakhour from and against any and all actions, claims, demands, costs, losses, damages and expenses which may be brought against, suffered or incurred by Peakhour directly or indirectly and in connection with:
      1. any breach by the Reseller of its obligations or warranties under this Agreement;
      2. any failure by the Reseller to include in its Client Licence Agreement terms equivalent to the terms set out in clause 5.2(a);
      3. any actual or alleged infringement by the Reseller or its personnel of the Intellectual Property Rights or moral rights of any third party;
      4. any negligent act or omission by the Reseller or the Reseller's personnel; or
      5. any action, claim or demand which may be brought by a New Client against Peakhour or any other entity.
  15. Step in rights
    1. If this Agreement ends for any reason, on Peakhour's request:
      1. to the extent the Reseller has a stand alone contract with the New Client in respect of the Service:
        1. the Reseller must promptly provide Peakhour with a copy of its contract with each New Client, and a status report setting out details about each New Client as may be reasonably necessary for Peakhour (or its nominee) to continue providing services in the Reseller's place;
        2. the Reseller must novate its agreements with each New Client to Peakhour (or its nominee), and assist Peakhour in ensuring a smooth handover of New Clients. Peakhour (or its nominee) will then deal directly with each New Client in providing the Reseller's Support Services to the New Client and collecting any fees from the New Client in the Reseller's place;
      2. to the extent the Reseller does not have a stand alone contract with the New Client in respect of the Service, the Reseller must, within five business days of termination of this Agreement, advise the New Client that the New Client can obtain the Service directly through Peakhour.
    2. The Reseller is not entitled to any compensation in relation to Peakhour's exercise of its Step In Rights under this clause 15.1.
  16. Termination
    1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
      1. breaches any material provision of the Agreement and the breach is not:
        1. remedied within 20 business days of the receipt of a notice from the first party requiring it to remedy the breach; or
        2. capable of being remedied; or
      2. is unable to perform a material obligation under the Agreement for 20 business days or more due to an event of Force Majeure.
    2. Either party may terminate this Agreement for convenience by providing three months' notice at any time.
  17. Consequences of Termination or Expiry
    1. Upon termination or expiry of this Agreement for any reason:
      1. Peakhour may exercise its Step in Rights, and the Reseller must comply with the handover process set out in clause 15 for each New Client;
      2. all rights granted to the Reseller under, or in accordance with, this Agreement immediately cease;
      3. the Reseller must pay to Peakhour all outstanding Fees;
      4. the Reseller will not be entitled to any refund in respect of Fees already paid, except to the extent that the Reseller has paid in advance for a period of more than a month, in which case Peakhour will refund a pro rata portion of the licence Fee and service Fee with respect to the period after the end of the then current month, less a $30 handling fee; and
      5. except as otherwise required by law, Peakhour will delete all cached Reseller Data it holds. For the avoidance of doubt, Peakhour retains all Peakhour Data.
    2. Termination or expiry of the Agreement does not affect either party's rights and obligations that accrued before that termination or expiry.
    3. On termination or expiry of the Agreement, each party must (at the request of the other party) promptly return to the other party or destroy all Confidential Information of the other party that is in the first party's possession or control.
    4. Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 1, 8, 9.2, 11, 13, 14, 17 and 19, continue in force.
  18. Suspension
    1. Without limiting any other right or remedy available to Peakhour, Peakhour may by notice to the Reseller, restrict or suspend the Reseller's rights granted under clause 3.1 to the Service where the Reseller (including any of its personnel):
      1. undermines, or attempts to undermine, the security or integrity of the Service;
      2. uses, or attempts to use, the Service:
        1. for improper purposes; or
        2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
      3. has, in Peakhour's reasonable opinion, otherwise materially breached the Agreement, including the Acceptable Use Policy.
    2. For the avoidance of doubt, any suspension of the Reseller's rights shall not affect the right of any New Client to continue to access and use the Service under the Client Licence Agreement.
  19. Disputes
    1. If a dispute arises, neither party may commence any court or arbitration proceedings relating to the dispute until it has complied the provisions of this clause, except to seek urgent interlocutory relief.
    2. Should any dispute arise, the parties must attempt to resolve the dispute as follows:
      1. if not resolved satisfactorily at an operational level, either party may issue a written notice to the other party setting out the details of the dispute (Dispute Notice); and
      2. within fifteen business days of receipt of a Dispute Notice, the respective executive officers / managing director or equivalent of the parties will meet in order to attempt to negotiate an amicable settlement. The meeting will take place at such time and place as agreed between the parties. Such negotiation will be conducted in English in good faith, with the genuine intention of resolving the matter; and
      3. should the parties be unable to resolve the matter within the fifteen business days referred to in clause 19.2(b), either party may immediately refer the dispute to the Australian Disputes Centre for mediation (‘ADC') and the parties will use reasonable endeavours to resolve the dispute following the ADC Guidelines for Commercial Mediation. For the avoidance of doubt, the parties agree to the appointment of the mediator on the terms of the Mediation Appointment Agreement contained in the ADC Guidelines for Commercial Mediation, the terms of which are incorporated into this Agreement.
    3. Each party must pay its own costs in relation to complying with this clause except that the costs and expenses of the mediation (other than the parties' own legal costs) will be borne by the parties equally.
    4. Unless prevented by the nature of the dispute, the parties will continue to perform this Agreement while attempts are made to resolve the dispute.
  20. General
    1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
      1. immediately notifies the other party and provides full information about the Force Majeure;
      2. uses best efforts to overcome the Force Majeure; and
      3. continues to perform its obligations to the extent practicable.
    2. Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    3. Independent contractor: Peakhour is an independent contractor of the Reseller, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
    4. Notices: A notice given by a party under the Agreement must be delivered to the other party via email or other address notified by the other party for this purpose.
    5. Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
    6. Variation: Any variation to the Agreement must be in writing and signed by both parties.
    7. Entire agreement: The Agreement sets out everything agreed by the parties relating to the Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the start of this Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement.
    8. Subcontracting and assignment: The Reseller may not assign, novate, subcontract or transfer any right or obligation under the Agreement. The Reseller remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
    9. Law: The Agreement is governed by, and must be interpreted in accordance with, the Governing Law. Each party submits to the non-exclusive jurisdiction of the Courts of the Governing Law.

Schedules

Schedule 1 - Peakhour Services

A. Services

Peakhour Support Services
  • Ticketing system (via email)
    30 minute email response during standard business hours.
    60 minute time frame from 5-10pm, 7-9am
  • Online chat via website during standard business hours
  • Phone support during standard business hours

B. Peakhour Report

Domain, Current Plan (allowed views), Report End Date,Actual Page Views,Excess Charges

Schedule 2 - Acceptable Use Policy

The Reseller must not, and must not permit or authorise any third party to:

  1. reverse engineer, reverse compile, disassemble, decompile, decrypt, derive or otherwise recreate the source code of, copy, update, modify, create derivative works, delete, destroy or deface any part of the Service (or any part thereof) in any manner;
  2. impersonate another person or misrepresent that it has any authorisation to act on behalf of others or Peakhour;
  3. use the Service to store, transmit or display malicious code, or any content that breaches any third party right (including Intellectual Property Rights and privacy rights), is Objectionable, incorrect or misleading; or is otherwise fraudulent or in violation of any applicable law or governmental regulation;
  4. use its access to the Service to develop a competitive product or service;
  5. attempt to undermine the security or integrity of the Service;
  6. use, misuse, or otherwise impair the functionality of the Service in any way or impair the ability of any other entity to use the Service; or
  7. attempt to view, access or copy any material or data other than that to which the Reseller is authorised to access.

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