This Reseller Agreement (the “Agreement”) is made, entered
into and executed on the date on which you electronically
consent
to the Agreement (the “Effective Date”), by and among you
(“Reseller”) and PhpDefender
and may hereinafter be collectively referred to as the
“Company.” The Company and Reseller
may be referred to individually as a “Party” and
collectively as the “Parties.The Company provides Reseller
Services and performs all technical, support and
administrative functions relating to
such Reseller Services, and Reseller wishes
to purchase and resell Reseller Services. NOW, THEREFORE,
for and in consideration of
the mutual promises, benefits and covenants contained herein
and for other good and valuable
consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged,
the Parties, intending to be legally bound, hereby agree as
follows:
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DEFINITIONS
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- “Advance Account” refers to the
balance of funds maintained by Reseller
with the Company as required in the
Reseller Program.
- “Business Day” refers to a
weekday, Monday through Friday,
excluding
all holidays as
applicable.
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“Confidential Information,” as used in
this Agreement, shall mean all data,
information and materials including,
without
limitation, computer software, data,
information, databases, protocols,
reference implementation, documentation,
functional and interface
specifications, provided by the Company
to Reseller under this Agreement,
whether written, transmitted, oral,
through Registrar Website or
otherwise, that is marked as
“Confidential” or that by its nature
and content, it is reasonable to believe
is confidential and proprietary.
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“Customer” refers to the direct or
indirect customer of Reseller.
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“Fees” refers to the payment due to the
Company pursuant to any Order.
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“Order” refers to a Reseller Service
purchased directly or indirectly by a
Reseller, pursuant to this Agreement.
- “Personal Data” is data about any
identified or identifiable natural
person.
- “Reseller Contact Details” refers to
the name, address, phone number,
fax number, email address, and
website(s) of Reseller that Reseller
provides to Registrar.
- “Reseller Program” refers to any of the
Company’s current reseller programs
which provide Resellers and its
Customers with direct or indirect
use of the Company’s servers, software,
interfaces, products and
API and third party products, as
currently described or later modified,
and any reseller programs to be offered
by the Company in the future.
- “Reseller Services” refers to all
products and services which the Company
is providing, rendering, or selling
directly to Reseller or which
Company makes available to Reseller for
resale to Customers as applicable
pursuant to this Agreement, including
but not limited to the Registration
Services.
- “Service Providers” refers individually
and collectively to any third
party that the Company may, directly or
indirectly, engage, employ,
outsource, or contract with for the
fulfillment, provision, or purchase
of Reseller Services and any other
services and operations of the
Company, and shall have the same rights
as the Company to the extent
required to perform services pursuant to
the terms of this Agreement
and as authorized by the Company.
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RESELLER REPRESENTATIONS AND
WARRANTIES
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- Reseller represents and
warrants that: (i) it is a sole
proprietor, partnership,
or corporation duly incorporated,
validly existing and in good standing
under the laws of the state/country of
its domicile; (ii) it has
all requisite legal power and authority
to execute, deliver and perform
its obligations under this Agreement;
(iii) the execution, performance
and delivery of this Agreement by its
officers, employees and agents
has been duly authorized by Reseller;
(iv) no further approval, authorization
or consent of any governmental or
regulatory authority is required
to be obtained or made by Reseller in
order for it to enter into
and perform its obligations under this
Agreement;
(v) Reseller is not in
violation of any third party’s
intellectual, proprietary or other
rights; and (vi) there is no pending
or, to the best of Reseller’s
knowledge, threatened claim, action, or
proceeding against Reseller.
- Reseller represents and
warrants that Reseller does not and
shall not
infringe any intellectual property
rights or other rights of any
person or entity, or does not publish
any content that is libelous
or illegal while using Reseller Services
under this Agreement. Reseller
further acknowledges that the Company
cannot and does not monitor
whether any services or the use of the
services by Reseller under
this Agreement, infringes the legal
rights of others.
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TERM AND TERMINATION
-
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Term. The term of this
Agreement commences on the Effective
Date and continues until terminated
pursuant to the terms herein
(the “Term”).
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Termination.
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Termination
Rights.
-
Unless otherwise
provided in this
Agreement, the Company
may terminate this
Agreement at any time by
giving the Reseller
thirty (30) days’
email information of
termination.
-
The Company may
terminate this Agreement
at any time, with or
without notice, in its
sole discretion: (i) to
protect the
integrity and stability
of Reseller Services;
(ii)
to comply with any
applicable laws,
government rules
or requirements, or any
applicable dispute
resolution
process; or (iii) to
avoid any liability
-
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Termination for
Inactivity.
In the event Reseller has no
transactions for a period of one
hundred and eighty (180)
consecutive days and no other
currently
active Reseller Services
purchased by Customers, the
Company
may immediately terminate this
Agreement by email information
to Reseller.
-
Effect of Termination.
-
Immediately upon any termination
of this Agreement, Reseller
shall transfer to the Company
all information deemed necessary
by the Company regarding the
Registered Name Holders.
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FEES, PAYMENTS & TAXES
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Advance Account.
Resellers are required to maintain an
Advance Account. Payment to the Advance
Account may be made by Crypto or other.
Payment
is expected to appear as available
credit in the Advance Account
within approximately forty-eight (48)
hours.
-
Fees. As per the
applicable Reseller Program terms, the
Fees will either be deducted from the
Advance Account when the Order
is processed. The Company
reserves the right to hold or otherwise
cancel any Order for which
there are insufficient funds in the
Advance Account to cover the
fees associated with the Order.
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Chargebacks.
In the event that Reseller issues a
chargeback for any payment to Company,
Company may immediately debit the
Advance Account,
if applicable, or charge Reseller for
the amount of the chargeback
as well as any fees levied against
Company by its payment processor
for such chargeback. Any negative
balance on the Advance Account
will be immediately due and payable via
guaranteed funds. Company
reserves the right to temporarily or
permanently suspend Reseller’s
access to Reseller Services or terminate
this Agreement if Reseller
issues a chargeback.
-
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Pricing. The Company
will display the current Discount % for
each Reseller Service within Reseller’s
account. The Company has
the right to modify its pricing at any
time, and any such modification
will be binding and effective
immediately upon notification by email
to Reseller or upon posting within
Reseller’s account.
-
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Taxes. Reseller shall
be responsible for any and all
applicable
taxes in connection with this Agreement
and the Reseller Services.
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WARRANTY DISCLAIMER; LIMITATION OF
LIABILITY
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Disclaimer of warranty.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN
CONNECTION WITH THIS AGREEMENT
OR ANY OF ITS SERVICES, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
OR NON-INFRINGEMENT. FURTHER,
WITHOUT ANY LIMITATION TO THE FOREGOING TO THIS AGREEMENT.
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Limitation of liability.
YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF THE
INDEMNIFIED PARTIES, WILL BE LIABLE FOR ANY OF THE
FOLLOWING: (i) INTERRUPTION OF
BUSINESS; (ii) ACCESS DELAYS, DENIAL
OF SERVICE (DOS) ATTACKS OR ACCESS INTERRUPTIONS TO
THIS SITE OR THE WEBSITE(S)
YOU ACCESS TO OBTAIN THE RESELLER SERVICES; (iii) DATA
NON-DELIVERY, MIS-DELIVERY,CORRUPTION,
DESTRUCTION OR OTHER MODIFICATION; (iv) EVENTS
BEYOND THE CONTROL OF COMPANY
OR ANY OF THE INDEMNIFIED PARTIES;
(v) ANY FAILURES OF ENCRYPTION OR OTHER SERVICES
PROVIDED; (vix) ANY LOSS OR DAMAGES THAT MAY
RESULT FROM TERMINATION OF
THIS AGREEMENT. (vii)THE COMPANY WILL NOT BE LIABLE
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
LOST PROFITS) REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EVEN IF THE COMPANY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE COMPANY’S MAXIMUM AGGREGATE
LIABILITY EXCEED THE TOTAL
ACTUAL AMOUNT PAID FOR THE RESELLER SERVICES.
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INTELLECTUAL PROPERTY
-
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Intellectual Property.
Subject to the provisions of this
Agreement, each Party will continue to
independently own its respective
intellectual property,
including all patents, trademarks, trade
names, domain names, service
marks, copyrights, trade secrets,
proprietary processes and all other
forms of intellectual property
worldwide, whether or not registered.
Any use of and improvements to
intellectual property will inure to
the benefit of, and continue to be owned
by, the Party that owns
such intellectual property. Without
limiting the generality of the
foregoing, no commercial use rights or
any licenses under any patent,
patent application, copyright,
trademark, know-how, trade secret,
or any other intellectual or other
proprietary rights are granted
by the Company to Reseller.
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MODIFICATIONS TO RESELLER SERVICES AND
AGREEMENT
-
- The Company reserves the right
to modify or discontinue, temporarily
or permanently, Reseller Services with
or without notice at any time.
The Company shall not be liable to
Reseller or to any third party
for any modification, suspension or
discontinuance of Reseller Services.
- Except as otherwise provided in
this Agreement, Reseller agrees that,
during the Term of this Agreement, the
Company may revise the terms
and conditions of this Agreement. The
Company will notify Reseller
of any material changes to the
Agreement, and, if Reseller objects,
Reseller agrees that its only recourse
is termination of this Agreement
with ten (10) days’ prior email notice
to the Company.
The Company
may publish an amendment
substituting the revised agreement in
place of this Agreement, or
otherwise amending, modifying or
replacing this Agreement, without
prior notice to Reseller if required
The Company is not bound by nor should
Reseller rely on any representation
by (i) any agent, representative or
employee of any third party that
Reseller may use to apply for the
Reseller Services; or (ii) on
information
posted on the Registrar Website of a
general informational nature.
Moreover, no employee, contractor, agent
or representative of the
Company is authorized to alter or amend
the terms and conditions
of this Agreement. Only the Company may
amend this Agreement through
its authorized amendment procedures.
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CONFIDENTIALITY
-
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Use of Confidential Information.
Reseller’s use and disclosure of
Confidential Information disclosed
hereunder are subject to the term and
conditions of this
Section. With respect to the
Confidential Information, Reseller
agrees
that:(i) Reseller shall treat as
strictly confidential, and use all
reasonable efforts to preserve the
secrecy and confidentiality of
all Confidential Information received
from the Company, including
implementing reasonable physical
security measures and operating
procedures designed to protect the same,
which in any case, shall
not be less stringent than the measures
Reseller takes to protect
its own confidential information; and
(ii) Reseller Shall make no
disclosures whatsoever of any
Confidential Information to others,
provided however, that if Reseller is a
corporation,partnership,
or similar entity, disclosure is
permitted to Reseller's Officers
and employees who have a demonstrable
need to know such Confidential
Information, provided Reseller shall
advise such personnel of the
confidential nature of the Confidential
Information and of the procedures
required to maintain the confidentiality
thereof. The obligations
set forth in this section shall be
continuing; provided, however,
that this section imposes no obligation
upon Reseller With respect
to information that: (x) is disclosed
after the Company’s prior written
approval; (y) is independently developed
by Reseller without the
use of the Confidential Information; or
(z) is made generally available
by the Company without restriction on
disclosure.
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In the event of any termination of this
Agreement: (i) all Confidential
Information in Reseller’s possession
shall be immediately
returned to the Company or, at the
Company’s sole option, Reseller
shall certify as to the destruction of
such Confidential Information;
(ii) Reseller shall provide full
voluntary disclosure to the Company
of any and all unauthorized disclosures
and/or unauthorized uses
of any Confidential Information; and
(iii) the obligations of this
section shall survive such termination
and remain in full force and
effect for a period of five (5) years.
-
Reseller agrees that the Company shall
be entitled to seek all available legal
and equitable remedies for the breach of
this
Section 13 by Reseller.
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ARBITRATION; GOVERNING LAW
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Arbitration.
-
Unless you are in India, you
also hereby agree to the
Company’s Arbitration Agreement,
which is incorporated into this
Agreement
by reference and can be found
here.
-
Alternatively, if you are in
India, the following provision
applies to you:
- All disputes,
controversies and
differences arising out
of or relating to this
Agreement, including a
dispute
relating to the validity
or existence of this
Agreement
(“Dispute”) shall be
referred to and resolved
by
arbitration in Mumbai,
India under the
provisions
of the Arbitration and
Conciliation Act, 1996;
provided
that, to the extent a
party may suffer
immediate
and irreparable harm for
which monetary damages
would
not be an adequate
remedy as a result of
the other
party’s breach or
threatened breach of any
obligation
hereunder, such party
may seek equitable
relief,
including an injunction,
from a court of
competent
jurisdiction, which
shall not be subject to
this
Section. The arbitration
tribunal shall consist
of
one (1) arbitrator
jointly appointed by the
parties
within fifteen (15) days
from the date of first
recommendation
for an arbitrator in
written form for a party
to
the other. If the
parties fail to agree on
appointment
of such arbitrator, then
the arbitrator shall be
appointed as per the
provisions of
Arbitration and
Conciliation Act, 1996.
The language of the
arbitration
shall be English. As
part of the terms of the
appointment
of the arbitrator(s),
the arbitrator(s) shall
be
required to produce a
final and binding award
or
awards within six (6)
months of the
appointment of
the sole arbitrator
(jointly appointed by
the parties).
Parties shall use their
best efforts to assist
the
arbitrator(s) to achieve
this objective, and the
parties agree that this
six (6) month period
shall
only be extended in
exceptional
circumstances, which
are to be determined by
the arbitrator(s) in its
absolute discretion. The
arbitral award passed by
the arbitrator shall be
final and binding on the
parties and shall be
enforceable in
accordance with
its terms. The
arbitrator shall state
reasons for
its findings in writing.
The parties agree to be
bound thereby and to act
accordingly. All costs
of
the arbitration shall be
borne equally by the
parties.
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Governing Law
Unless you are in India, any controversy
or claim arising out of or relating to
this Agreement, the formation of this
Agreement
or the breach of this Agreement,
including any claim based upon an
alleged tort, shall be governed by the
substantive laws of the Commonwealth
of Massachusetts. If you are in India,
any controversy or claim arising
out of or relating to this Agreement,
the formation of this Agreement
or the breach of this Agreement,
including any claim based upon an
alleged tort, shall be governed by the
substantive laws of the Republic
of India. Notwithstanding the foregoing,
the United Nations Convention
on Contracts for the International Sale
of Goods does not apply to
this Agreement.
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MISCELLANEOUS
-
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Personal Data.
The Company incorporates its Privacy
Notice by reference. Please read our
Privacy Notice by
clicking here
. In addition,you hereby represent
that you have provided the
Company’s Privacy Notice to any person
whose personal data you disclose
to the Company and that you have
obtained their consent to the foregoing.
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Force Majeure.
Force Majeure. Neither Party shall be
deemed in default of this Agreement to
the extent of its obligations or
attempts to
cure any breach are delayed or prevented
by reason of any act of
God, fire, natural disaster, accident,
riots, acts of government,or
any other cause beyond the reasonable
control of such Party; provided,
that the Party whose performance is
affected by any such event gives
the other Party written notice thereof
within ten (10) Business Days
of such event or occurrence.
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Assignment.
Reseller may not assign or transfer this
Agreement or any of Reseller’s rights or
obligations hereunder, without the prior
written consent of Registrar. In
addition, Reseller must comply with
any applicable ICANN inter-the Company
transfer process. Any attempted
assignment in violation of the foregoing
provision shall be null
and void and of no force or effect
whatsoever. The Company may assign
its rights and obligations under this
Agreement, and may engage subcontractors
or agents in performing its duties and
exercising its rights hereunder,
without your consent. This Agreement
shall be binding upon and shall
inure to the benefit of the Parties
hereto and their respective successors
and permitted assigns. You agree that
the Company may transfer your
domain name from one accredited
registrar to another accredited
registrar
without requiring your consent, to the
extent not prohibited by ICANN
or applicable registry rules or by
applicable law.
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Publicity. Reseller
shall not create, publish, distribute,
or permit any written, oral, or
electronic material that makes reference
to the Company or its Service Providers
or uses any trademarks or
service marks of the Company or its
Service Providers without prior
written consent. Reseller gives the
Company the right to recommend
and/or refer Reseller’s name and details
to Customers, and use Reseller’s
name in marketing and promotional
material with regard to its use
of the Reseller Services.
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Notice. Notice to
Reseller shall be sufficiently given if
provided in writing and transmitted by
email to the current email
address included in the Reseller Contact
Details. Notice to the Company
shall be sufficiently given only if in
writing and transmitted by
email to the Company’s email address
below, delivered personally
or by a nationally recognized courier
service, or mailed by prepaid
registered mail addressed:
Attn: Endurance India
Address: Unit No. 501, 5th Floor, IT
Building 3,
Nesco IT Park, Nesco Complex,
Western Express Highway,
Goregaon (East)
Mumbai 400063, Maharashtra
India
Email:
compliance@resellerclub.com
compliance@resellerclub.com
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Survival.
In the event of termination of this
Agreement for any reason, Sections 8
(Indemnification), 9 (Warranty
Disclaimer; Limitation
of Liability), 10 (Intellectual
Property), 13 (Confidentiality) and
14 (Arbitration; Governing Law), in
addition to any section that
by its nature should survive
termination, shall survive.
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Language. All notices,
designations, and specifications
made under this Agreement shall be made
in the English language only.
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Dates and Times.
All dates and times relevant to this
Agreement or its performance shall be
computed based on the date and time
observed in
the city of the registered office of the
Company.
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Construction.
Any reference in this Agreement to
gender shall include all genders, and
words importing the singular number only
shall include
the plural and vice versa
-
Disclaimer.
There are no representations,
warranties, conditions or other
agreements, express or implied,
statutory or otherwise, between
the Parties in connection with the
subject matter of this Agreement,
except as specifically set forth herein.
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No Third-Party
Beneficiaries.
This Agreement does not provide and
shall not be construed to provide third
parties (i.e., non-parties to this
Agreement),
including any Customer or a prospective
customer of Reseller with
any remedy, claim, and cause of action
or privilege against the Company
or its Service Providers.
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Independent
Contractors.
Reseller and the Company are independent
contractors, and nothing in this
Agreement will create any partnership,
joint venture,
agency, franchise, and sales
representative or employment
relationship
between the Parties. Reseller will have
no authority to make or accept
any offers or representations on the
Company’s behalf. Reseller will
not make any statement, whether on its
Website or otherwise, that
reasonably would contradict anything in
this Agreement.
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Entire Agreement;
Severance.
This Agreement, which includes the
specific policies referenced herein,
constitutes the entire agreement between
the Parties
concerning the subject matter hereof and
supersedes any prior agreements,
representations, statements,
negotiations, understandings, proposals
or undertakings, oral or written, with
respect to the subject matter
expressly set forth herein. If any
provision of this Agreement shall
be held to be illegal, invalid or
unenforceable, each Party agrees
that such provision shall be enforced to
the maximum extent permissible
so as to effect the intent of the
Parties, and the validity, legality
and enforceability of the remaining
provisions of this Agreement
shall not in any way be affected or
impaired thereby.