These Terms and Conditions govern the Reseller Agreement entered into between Pacnet Internet (HK) Limited ("Party A") and its appointed Reseller ("Party B").

Whereas:

• A. Party A is engaged in the business of providing Internet services;
• B. Party B has experience in marketing similar services;
• C. Party A wishes to liaise with Party B, subject to the terms set out in the Agreement;
• D. Party A is acting as the Internet Service Provider of Party B's customers' Internet related projects.

It is hereby agreed as follows:

1. Definitions

   In these Terms and Conditions for Reseller Agreements, unless the contrary intention appears, the following definitions will apply:

   • "Agreement" Means these Terms and Conditions for Reseller Agreements together with the Reseller Agreement entered into for the marketing of Pacnet Internet (HK) Limited's Service;
   • "Commencement Date" Means the start date of the Agreement and so specified in the Reseller Agreement;
   • "Commission" Means the amount payable to Party B pursuant to the Reseller Agreement;
   • "Confidential Information" Means the confidential information of a Party which relates to the subject matter of the Agreement and includes:
     1. confidential information relating to Party A or its clientele;
     2. information relating to the personnel, policies or business strategies of Party A;
     3. the Service specifications;
        
     4. information relating to the terms of the Agreement;
   • "End User" Means a customer or potential customer identified by Party B;
   • "End User Agreement" Means a written agreement, in the format provided by Party A, to be entered into between an End User (who/which is introduced by Party B) and Party A;
   • "Force Majeure" Means circumstances beyond the reasonable control of the Parties and which results in a Party being unable to observe or perform on time an obligation under the Agreement. Such circumstances shall include but shall not be limited to:
     
     1. acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
        
     2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
   • "Initial Term" Means the period of the Agreement and so specified in the Reseller Agreement;
   • "Intellectual Property Rights" Means copyright, trademark, design, patent, parallel importation, semiconductor or circuit layout rights;
   • "Order" Means the standard Party A application form, including the End-User Agreement, in the format provided by Party A;
   • "Party" Means either Party A or Party B as the context dictates;
   • "Reseller Agreement" Means the Reseller Agreement that stipulates the specific terms and conditions in relation to the business arrangement entered into between Party A and Party B, for which these Terms and Conditions for Reseller Agreements will serve as an addendum to;
   • "Service" Means Party A services described in the Reseller Agreement;
   • "Territory" Means the Hong Kong Administrative Region
     
     
2. Interpretation

   In these Terms and Conditions for Reseller Agreements, unless the contrary intention appears:

   1. the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
   2. a cross reference to a clause number is a reference to its subclauses;
   3. words in the singular number include the plural and vice versa;
   4. words importing a gender include any other gender;
   5. a reference to a person includes a partnership and a body, whether corporate or otherwise;
   6. a reference to a clause is a reference to a clause or subclause of these Terms and Conditions for Reseller Agreements;
   7. a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
   8. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
   9. a reference to the Reseller Agreement includes a reference to any part of the Reseller Agreement which is not physically annexed to this Terms and Conditions for Reseller Agreements but which is incorporated by reference;
   10. the recitals to these Terms and Conditions for Reseller Agreements do not form part of these Terms and Conditions;
   11. monetary references are references to Hong Kong currency.
       
       
3. Commencement Date and Term
   
   
   1. The Agreement shall remain in force from the Commencement Date until the expiry of the Initial Term.
   2. Subject to subclause 3, the Agreement may be renewed at the sole discretion of Party A for a subsequent term of a similar duration to the Initial Term. Party B shall provide at least thirty (30) days notice in writing prior to the expiry of the Initial Term if it wishes to renew the Agreement pursuant to this subclause.
   3. Renewal of the Agreement pursuant to subclause 2 is subject to the consent of Party A, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Party A may require an adjustment of the Commission as a condition of providing its consent to a renewal.
      
      
4. Scope of this Agreement
   
   
   1. Party A hereby permits Party B to promote, and to solicit Orders for, the Service within the Territory.
   2. The permission is non-exclusive and in no way limits Party A's right to market the Service within the Territory, either directly or through other third parties.
      
      
5. Obligations of Party B
   
   
   1. Party B shall:
      1. use its best endeavours to promote the Service in the Territory. Such promotion shall include demonstration of the Service to End-Users and advertising of the Service at Party B's own expense;
      2. obey and comply with all ordinances, regulations, bye-laws, rules and requirements of any Governmental or other competent authority relating to Party B's obligations and duties under this Agreement;
      3. act diligently as a promoter in respect of the Service;
      4. act in good faith at all times towards Party A and provide such assistance and co-operation as practicable upon request by Party A;
      5. as soon as practicable, upon Party A's request, provide any information sought by Party A regarding which might reasonably be considered relevant to Party A's marketing strategy or Party A's future promotion and supply policy; and
   2. Except as otherwise provided in the Agreement, Party B shall bear its own expenses associated with the promotion of the Service pursuant to the Agreement.
      
   3. Any advertising or promotion undertaken by Party B shall at all times fairly and accurately represent the Service and shall comply with any reasonably directions as to content or format that Party A may from time to time give to Party B. Without limiting the foregoing, Party B will familiarise itself with, and observe, all relevant laws regarding fair trading and trade practices.
      
   4. Party B shall maintain sufficient resources, including personnel familiar with the Service, in order to fulfil Party B's responsibilities under the Agreement.
      
      
6. Responsibilities of Party A
   
   
   1. Party A shall, if requested by Party B or if otherwise considered necessary by Party A, provide Party B or its employees with such training in the use of the Service as Party A considers necessary to enable Party B to market the Service.
      
   2. Party A shall provide Party B from time to time with current information regarding:
      
      1. the use of the Service; and
      2. other technical information concerning the access of the Service.
   3. Party A does not warrant that training or information provided pursuant to this clause is sufficient to enable Party B or its personnel to adequately respond to all queries and concerns raised by an End-User. Party B acknowledges its responsibility to refer to Party A as necessary queries or concerns raised or expressed by an End-User which Party B is unable to answer.
      
   4. Party A shall, in addition to any other obligation arising under the Agreement, provide Party B with such assistance, training, sales aids, briefings and materials as are specified in the Reseller Agreement.
      
      
7. Use of Service

   Without limiting subclause 1, Party B shall not use the Service other than for purposes of :-

   1. marketing the Service to End-Users; and
   2. performing its obligation under the Agreement.
      
      
8. Orders
   
   
   1. In order to complete a sale, Party B must arrange for the End-User to submit a signed Order, including a signed End-User Agreement directly to Party A.
   2. Party B shall inform End-Users that all Orders are subject to acceptance by Party A at Party A's sole discretion.
   3. All Orders accepted by Party A shall be invoiced by Party A directly to the End-User and all payments shall be made by the End-User directly to Party A.
   4. Party B must bring to the attention of End-Users all relevant contractual terms associated with the Order.
   5. Party A shall, at its complete discretion, decide whether or not to accept such an Order in whole or in part. Party A shall inform Party B of any decision to reject all or part of such an Order.
      
      
9. Commission
   
   
   1. Party A shall, within the time frame as stipulated under the Commission and Payment Terms in the Reseller Agreement, pay to Party B the Commission applicable to each Order as accepted by Party A.
   2. Party A is not liable to make payment of the Commission until full payment has been received from the End-User.
   3. In the event that Party A repays any money, or cancels or credits a sale to an End-User in respect of the service provided by Party B for any reason, the Commission paid to Party B in respect of that money shall be debited to the account of Party B and deducted from any future entitlement to Commission.
      
      
10. Status of Party B
    
    
    1. Party B is not a partner or agent of Party A and does not have the power or authority, directly or indirectly or through its servants or agents, to bind Party A to any agreement with a Customer or other third party or otherwise to contract, negotiate or enter into a binding relationship for or on behalf of Party A.
    2. Party B shall observe fiduciary obligations to Party A in relation to:
       1. all property of Party A in Party B's possession;
       2. any moneys owing by Party B to Party A; and
       3. all Confidential Information.
          
          
11. Confidentiality
    
    
    1. A Party shall not, without the prior written approval of the other Party, disclose the other Party's Confidential Information.
    2. A Party shall not be in breach of subclause 1 in circumstances where it is legally compelled to disclose the other Party's Confidential Information.
    3. Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-Contractors engaged for the purposes of the Agreement, do not make public or disclose the other Party's Confidential Information.
    4. This clause shall survive the termination of the Agreement.
       
       
12. Indemnity
    
    
    1. Party B releases and indemnifies Party A, its servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against Party A arising out of a breach of the Agreement by Party B or the negligence of Party B, its agents, employees or sub-Contractors or of any other person for whose acts or omissions Party B is vicariously liable.
       
    2. Party B releases and indemnifies Party A against any action, claim or demand by Party B's servants, employees or agents or their personal representatives or dependants arising out of the performance of the Agreement.
       
       
13. Termination
    
    
    1. Without prejudice to any other rights Party A may have under the Agreement or at law, Party A may terminate the Agreement immediately by notice in writing if Party B is in breach of any term and such breach is not remedied within thirty (30) days of written notice by Party A.
    2. Party A may terminate the Agreement immediately upon notice in writing to Party B if Party B becomes or threatens to become or is in jeopardy of becoming subject to any form of insolvency administration.
    3. Notwithstanding anything to the contrary contained in the Agreement, both parties agree that either party ("notifying party") shall be entitled to terminate the Agreement upon giving not less than one (1) month's notice in writing to the other party provided that the notifying party has observed and performed the obligations and conditions herein contained in full.
    4. If notice is given to Party B to terminate the Agreement pursuant to this clause, Party A may, in addition to terminating the Agreement:
       1. recover any of Party A's property and all related data, documentation and records retained by Party B pursuant to this Agreement;
       2. recover from Party B the amount of any loss or damage sustained as a result of the termination;
       3. be regarded as discharged from any further obligations under the Agreement; and
       4. pursue any additional or alternative remedies provided by law.
    5. Upon termination of the Agreement, Party B shall provide all reasonable assistance which Party A considers necessary to enable the transfer of Party A's property (including the Materials) and all related data, documentation and records to Party A or a third party nominated by Party A, at no additional charge.
       
       
14. Force Majeure
    
    
    1. Neither Party shall be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to Force Majeure.
    2. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.
    3. If a delay or failure by a Party to perform its obligation due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.
       
       
15. Sub-Contracts

    Party B shall not sub-contract or otherwise arrange for another person to perform any part of the Agreement or to discharge any of its obligations under any part of the Agreement without the prior written consent of Party A.

16. Conflict of Interest

    Party B warrants that to the best of its knowledge no conflict of interest exists or is likely to arise in the performance of its obligations under the Agreement.

17. Entire Agreement

    The Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

18. Assignment and Novation
    
    
    1. The benefit of the Agreement shall not be assigned by Party B without Party A's written consent.
    2. Party A may consent to the assignment or novation of the Agreement subject to such conditions as it chooses to impose.
       
       
19. Waiver
    
    
    1. No right under the Agreement shall be deemed to be waived except by notice in writing signed by each Party.
    2. A waiver by Party A pursuant to subclause 1 will not prejudice its rights in respect of any subsequent breach of the Agreement by Party B.
    3. Subject to subclause 1, any failure by Party A to enforce any clause of the Agreement, or any forbearance, delay or indulgence granted by Party A to Party B, will not be construed as a waiver of Party A's rights under the Agreement.
       
       
20. Party A's Rights

    Any express statement of a right of Party A under the Agreement is without prejudice to any other right of Party A expressly stated in the Agreement or arising at law.

21. Survival of Agreement
    
    
    1. Subject to any provision to the contrary, the Agreement shall ensure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not ensure to the benefit of any other persons.
    2. The covenants, conditions and provisions of the Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
       
       
22. Severability

    If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.

23. Governing Law

    The Agreement will be governed by and construed according to the law of the jurisdiction of the Hong Kong Special Administration Region.

24. Notices
    
    
    1. Notices under the Agreement may be delivered by hand, by mail (including electronic mail) or by facsimile to the registered addresses unless otherwise specified by the parties in the Reseller Agreement.
    2. Notice will be deemed given:
       1. in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
       2. in the case of posting, 48 hours after dispatch;
       3. in the case of facsimile or electronic mail, at the time of dispatch.
25. Pacnet reserves the right to amend the Agreement as and when necessary.