Reseller Hosting Terms and Conditions
This Reseller Agreement is an agreement between INMOTION HOSTING, INC. ("Company"), a California corporation, and the program participant (“You” or the "Reseller") identified in the program application completed by the Reseller and submitted to Company (the "Program Application"). The Agreement applies to the Reseller's participation in the program identified in the Program Application, and any other program in which Company may accept the Reseller's participation (in any such case, the "Program"). This Reseller Agreement along with the Acceptance Letter (letter sent by Company to Reseller, referencing the Program, the Program Description and the Program), the Program Application, the Program Description (the official program description for the Program set forth on Company's web site, as the same may be modified by Company from time to time) and all of Company’s policies, all herein incorporated by reference and shall be deemed a single agreement (collectively the "Agreement"). Company may modify the Agreement and the applicable Program Description from time to time in its sole discretion, which modifications will be effective upon posting to Company's web site.
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE COMPANY’S PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALONG WITH ANY NEW, DIFFERENT OR ADDITIONAL TERMS, CONDITIONS OR POLICIES WHICH COMPANY MAY ESTABLISH FROM TIME TO TIME. YOU MAY VIEW THE LATEST VERSION OF THIS AGREEMENT ONLINE.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with Company, whether or not the transactions were in Your behalf. You acknowledge that Company's acceptance of any application made by You for services provided by Company will take place at Company's offices located in California, USA.
- Acceptable Use Policy. Under the Agreement, Reseller and its customers shall comply with Company's then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed under the Legal section of this web site, and which is incorporated in the Agreement by reference. Reseller hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between the Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Reseller (and/or its customer and clients via the Program (the "Reseller Content"). Reseller Content includes content of Reseller's customers and/or users of Reseller's website. Accordingly, under the Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in the Agreement, Company may immediately take corrective action, including removal of all or a portion of the Reseller Content, disconnection or discontinuance of any and all Program, or termination of the Agreement in the event of notice of possible violation by Reseller of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company may not issue to Reseller any fees. Reseller hereby agrees that Company shall have no liability to Reseller or any of Reseller's customers due to any corrective action that Company may take (including, without limitation, disconnection of the Program).
Compensation; Term; Termination; Cancellation Policy.
- Compensation. Company will provide Reseller the applicable payment schedule set forth in the Program Description for each order for Services attributed to Reseller (each, an "Order"). Reseller shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated or imposed on it as a result of the existence or operation of the Agreement, including any income, sales, or use tax on profits which may be levied against it.
- Term. Reseller's participation in the Program will begin on the date of the Acceptance Letter sent by Company to Reseller (the "Acceptance Date"). The Agreement will terminate on the first anniversary of the Acceptance Date. Thereafter, the Program Agreement will renew automatically for successive periods of one year either unless either Company or the Reseller gives notice to the other party of non-renewal at least thirty (30) days prior to expiration of the then-current term.
The Agreement may be terminated:
- by either party by giving the other party thirty (30) days prior written notice (subject to an early cancellation fee payable by Reseller as provided below),
- by Company, at any time, without notice, if, in Company's sole and absolute discretion and/or judgment, Reseller is in violation of any term or condition of the Agreement and related agreements, AUP, or Reseller's use of the Program disrupts or, in Company's sole and absolute discretion and/or judgment, could disrupt, Company's business operations and/or
- by Company in accordance with the applicable Sections set forth in the Agreement.
Company may terminate the Agreement:
- if the Program is prohibited by applicable law, or becomes impractical or unfeasible for any technical, legal or regulatory reason, by giving Reseller as much prior notice as reasonably practicable or
- immediately by giving written notice to Reseller, if Company determines in good faith that Reseller’s use of the Reseller Web site or the Reseller Content violates any term or condition, including the AUP.
- Upon termination of the Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under the Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 8, 10, 11, 13 and 15 of the Agreement shall survive the expiration or termination of the Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of the Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under the Agreement. Termination of the Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
- The Agreement may be terminated:
- Reseller will conduct itself in a professional manner and will maintain a reputation for fair dealing and exemplary service among its customers or clients. Reseller will not make any statement, or take any action, that could reasonably be expected to reflect poorly on Company or on the reputation of Company or its products and services.
- Reseller will cause its personnel who are responsible for Reseller's activities under the Agreement to remain well-informed concerning Company's products and services. Among other things, participate will cause such personnel to review Company's web site occasionally to ensure that such personnel are reasonably familiar with Company's product offerings, pricing, promotions and service terms and conditions.
- Reseller is solely responsible for the quality, performance and all other aspects of the Reseller Content and the goods or services provided through the Reseller Web site.
- Reseller will cooperate fully with Company in connection with Company’s performance of the Program. Reseller must provide any equipment or software that may be necessary for Reseller to use the Program. Delays in Reseller’s performance of its obligations under the Agreement will extend the time for Company’s performance of its obligations that depend on Reseller’s performance on a day for day basis. Reseller will notify Company of any change in Reseller’s mailing address, telephone, e-mail or other contact information.
- Reseller assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Reseller Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
- Because the Program permits Reseller to electronically transmit or upload content directly to the Reseller Web site, Reseller shall be fully responsible for uploading all content to the Reseller Web site and supplementing, modifying and updating the Reseller Web site. Reseller is also responsible for ensuring that the Reseller Content and all aspects of the Reseller Web site are compatible with the hardware and software used by Company to provide the Program, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Program will be available on Company’s Web site. Reseller shall periodically access Company’s Web site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Reseller Content, the Reseller Web site or other damages or any malfunctions or service interruptions caused by any failure of the Reseller Content or any aspect of the Reseller Web site to be compatible with the hardware and software used by Company to provide the Program.
- Unless provided otherwise, Reseller is solely responsible for making back-up copies of the Reseller Web site and Reseller Content.
Reseller’s Representations and Warranties.
Reseller hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Reseller will ensure that:
- The information regarding Reseller in the Program Application is accurate, current and complete and that you will notify Company within five (5) business days when any of the information you provided as part of the application and/or registration process changes. Failure by Reseller, for whatever reason, to respond within five (5) business days to any inquiries made by Company to determine the validity of information provided by Reseller, will constitute a material breach of this Agreement. If Reseller provides any information that is inaccurate, not current, false, misleading or incomplete, or if Company has reasonable grounds to suspect that Reseller’s information is inaccurate, not current, false, misleading or incomplete, Company has the absolute right, in its sole discretion, to terminate its Web Hosting services and close Reseller’s account.;
- Reseller will comply with all applicable laws, rules and regulations in the conduct of its business;
- Reseller will not make any representations concerning the Services except those that have been approved or published by Company; and
- Reseller will not distribute any documents or materials describing the Services except those that have been approved or published by Company.
- Reseller is the owner or valid licensee of the Reseller Content and each element thereof, and Reseller has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Reseller Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
- Reseller’s use, publication and display of the Reseller Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
- Reseller will comply with all applicable laws, rules and regulations regarding the Reseller Content and the Reseller Web site and will use the Reseller Web site only for lawful purposes;
- Reseller has used its best efforts to ensure that the Reseller Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code;
- Reseller is responsible for ensuring that there is no excessive overloading on Company's DNS or servers. Reseller may not use Company's servers and Reseller web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Company reserves the right to remove sites that contain information about hacking or links to such information. Use of your web site as an anonymous gateway is prohibited. Company prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by Company. Reseller agree that Company reserves the right to remove you web site temporarily or permanently from its hosting servers if Company is the recipient of activities that threaten the stability of its network; and
- At all times, Reseller shall bear full risk of loss and damage to your web site and all of your web site content. Reseller is entirely responsible for maintaining the confidentiality of your password and account information. Reseller agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the Site or any of your web site content displayed, linked, transmitted through or stored on the Server. Reseller shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to your web site content; (ii) maintain independent archival and backup copies of your web site content; (iii) ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on Company servers; and (iv) ensure the confidentiality of your password. Company's servers and hosting services are not an archive and Company shall have no liability to Reseller or any other person for loss, damage or destruction of any of your content. If your password is lost, stolen or otherwise compromised, you shall promptly notify Company, whereupon Company shall suspend access to your web site by use of such password and issue a replacement password to you or your authorized representative. Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Company or another party due to someone else using your account or password.
Reseller shall be solely responsible for the development, operation and maintenance of Reseller's web site, online store and e-commerce activities, for all products and services offered by Reseller or appearing online and for all contents and materials appearing online or on Reseller's products, including, without limitation
- the accuracy and appropriateness of the Reseller Content and content and material appearing in its store or on its products,
- ensuring that the Reseller Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
- ensuring that the Reseller Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Reseller shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Reseller shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
- Reseller grants Company the right to reproduce, copy, use and distribute all and any portion of the Reseller Content to the extent needed to provide and operate the Program.
- Reseller hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Reseller will ensure that:
Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 5(b), each party will
- treat the Proprietary Information of the other party as secret and confidential,
- limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of the Agreement, and
- not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
Notwithstanding Section 5(a), the following shall not be considered Proprietary Information:
- any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party;
- any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure;
- any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party,
- any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or
- any information that, two years after expiration or termination of the Agreement, does not constitute a trade secret under applicable law.
- Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of the Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
- During the term of the Agreement and for two years following expiration or termination of the Agreement, Reseller will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under the Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company.
- Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 5(b), each party will
- License to Company. Reseller hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Program under the Order: (a) to post a copy of Company's name and logo, and maintain a hypertext link to Company's web site, on a page in the Reseller web site where strategic partners are listed and on such other pages on the Reseller web site as may be specified in the Acceptance Letter (b) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Reseller Content; and (c) make archival or back-up copies of the Reseller Content and the Reseller Web site. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Reseller Content, all of which shall remain solely with Reseller.
- Company as Reseller or Licensor. Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Program that were or are manufactured or provided by a third party ("Non-Company Product"). Company shall not be responsible for any changes in the Program that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Program. Any malfunction or manufacturer's defects of Non-Company Product either sold, licensed or provided by Company to Reseller or purchased directly by Reseller used in connection with the Program will not be deemed a breach of Company's obligations under the Agreement. Any rights or remedies Reseller may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Reseller by the manufacturer of such Non-Company Product. Reseller is entitled to use any Non-Company Product supplied by Company only in connection with Reseller's permitted use of the Program. Reseller shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Reseller through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Program. Reseller shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
- Internet Protocol (IP) Address Ownership. If Company assigns Reseller an Internet Protocol (“IP”) address for Reseller's use, the right to use that IP address shall belong only to Company, and Reseller shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Program, during the term of the Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Reseller by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
- Caching. Reseller expressly grants to Company a license to cache the entirety of the Reseller Content and Reseller's web site, including content supplied by third parties, hosted by Company under the Agreement and agrees that such caching is not an infringement of any of Reseller's intellectual property rights or any third party's intellectual property rights.
- CPU Usage. Reseller agrees that Reseller shall not use excessive amounts of CPU processing on any of Company's servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Program, or termination of the Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Reseller shall not be entitled to a refund of any fees paid in advance prior to such action.
- Bandwidth and Disk Usage. Reseller agrees that bandwidth and disk usage shall not exceed the number of megabytes agreed to in the stipulated measurements outlined on the web site at the time of sign-up (or other measurements of services in the form of gigabytes, terabytes, etc.) per month for the Program ordered by Reseller on the Order Form (the "Agreed Usage"). Company will monitor Reseller's bandwidth and disk usage. Company shall have the right to take corrective action if Reseller's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Program, or termination of the Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Reseller shall not be entitled to a refund of any fees paid in advance prior to such action.
- Company hereby grants to Reseller a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of the Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Program. Reseller may not use Company’s technology for any purpose other than accessing and using the Program. Except for the rights expressly granted above, the Agreement does not transfer from Company to Reseller any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Reseller shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
- Company owns all right, title and interest in and to the Program and Company's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Program and the related hardware, software and systems ("Marks"). Noting in the Agreement constitutes a license to Reseller to use or resell the Marks.
- Disclaimer of Warranty. Reseller agrees to use all Program and any information obtained through or from Company, at Reseller's own risk. Reseller acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THE AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "COMPANY PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM RESELLER OR STORED BY RESELLER OR ANY OF RESELLER'S RESELLERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.
- Company represents and warrants to Reseller that the Program will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Program Descriptions. Reseller will be deemed to have accepted such Program unless Reseller notifies Company, in writing, within thirty (30) days after performance of any Program of any breach of the foregoing warranties. Reseller’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Program at no cost to Reseller, or, in the event of interruptions to the Program caused by a breach of the foregoing warranties, issue Reseller a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Program have been interrupted. Company may provision the Program from any of its data centers and may from time to time re-provision the Program from different data centers.
- The foregoing warranties shall not apply to performance issues or defects in the Program (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Reseller or any third parties; or (c) that resulted from Reseller’s equipment or any third-party equipment not within the sole control of Company.EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO RESELLER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability.
- IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID BY COMPANY TO RESELLER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY
- COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM
- EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Reseller’s indemnification obligations.
- Notwithstanding anything to the contrary in the Agreement, Company's maximum liability under the Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Reseller for the Program which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
- Reseller understands, acknowledges and agrees that if Company takes any corrective action under the Agreement because of an action of Reseller or one if its customers or a reseller, that corrective action may adversely affect other customers of Reseller or other reseller customers, and Reseller agrees that Company shall have no liability to Reseller, any of its customers or any Reseller due to such corrective action by Company.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with the Agreement. The terms of this section shall survive any termination of the Agreement.
- Indemnification. Reseller agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Reseller's use of the Services, (ii) any violation by Reseller of the AUP, (iii) any breach of any representation, warranty or covenant of Reseller contained in this Agreement or (iv) any acts or omissions of Reseller; (v) a dispute over one or more web sites Company is hosting for Reseller, (vi) Reseller’s breach of this Agreement, (vii) any negligence, willful or improper misconduct by Reseller; (viii) any allegation that Reseller’s site or content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (iv) any action or conduct of Company's undertaken pursuant to this Agreement. The terms of this section shall survive any termination of this Agreement. Reseller shall defend and settle at your sole expense all proceedings arising out of the foregoing. Reseller agrees that Company shall have the right to participate in the defense of any such claim through counsel of its own choosing. Reseller agrees to notify Company of any such claim promptly in writing and to allow Company to control the proceedings. Reseller agrees to cooperate fully with Company during such proceedings. Reseller agrees you will not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to your improper or illegal use of its Web Hosting services. Reseller also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Reservation of Rights. Company explicitly reserves the right and sole discretion to: (i) Censor any web site hosted on its Web Hosting servers that, in Company's sole discretion, is deemed inappropriate; (ii) review every Web Hosting account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels; (iii) modify its pricing through email notification; (iv) terminate your Web Hosting service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Web Hosting fees; and other activities whether lawful or unlawful that Company determines to be harmful to its other customers, operations, or reputation; (v) terminate your Web Hosting service if the contents of your web site result in, or are the subject of, legal action or threatened legal action, against Company or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Company has no obligation to monitor your site or any of your content, but reserves the right in its sole discretion to do so.
- Anti-SPAM. Company will immediately terminate any Web Hosting service which it believes, in its sole discretion, is transmitting or is otherwise connected with any SPAM or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay Company an administrative fee of $1.00 (USD) for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your website hosted with us, otherwise you agree to pay Company's actual damages.
- Dispute Resolution Policy. Reseller agrees that if a dispute arises as a result of one or more web sites Company is hosting for you, you will indemnify, defend and hold Company harmless for damages arising out of such dispute. Reseller also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Independent Contractor. Company and Reseller are independent contractors and nothing contained in the Agreement places Company and Reseller in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to the Agreement, the formation of the Agreement or the breach of the Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California. ANY SUIT, ACTION OR PROCEEDING CONCERNING THE AGREEMENT MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM
- Mandatory Arbitration. Notwithstanding Section 17(b) above, each party agrees that any dispute between the parties arising out of the Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator, appointed in accordance with such rules, who shall render a reasoned opinion. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Atlanta, Georgia. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
- Headings. The headings herein are for convenience only and are not part of the Agreement.
- Entire Agreement; Amendments. The Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and the Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between the Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Reseller or Company, the terms and conditions of the Agreement shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by any authorized representative of Reseller and Company. The Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Program may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
- Severability. All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render the Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of the Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of the Agreement by notice in writing to the other party as provided herein. Company may give written notice to Reseller via e-mail to the Reseller’s e-mail address as maintained in Company’s billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of the Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. Reseller may not assign or transfer the Agreement, or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under the Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Reseller. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with the Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If the Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If the Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under the Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in the Agreement, nothing in the Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Reseller acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Program Description, is an intended third-party beneficiary of the provisions set forth in the Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of the Agreement with respect to its products or services against Reseller as if it were a party to the Agreement.
- Government Regulations. Reseller may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with the Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Reseller operates or does business.
- Marketing. Reseller agrees that during the term of the Agreement Company may publicly refer to Reseller, orally and in writing, as a customer of Company. Any other public reference to Reseller by Company requires the written consent of Reseller.
International Provisions. If Reseller maintains an office outside the United States, conducts business with Persons other than U.S. citizens, or at any time offers to resell Services to any Person that is not a U.S. citizen, the following provisions will apply:
- Reseller will comply with all laws relating to the conduct of business practices which prohibit any gratuities or inducements. Reseller acknowledges that Company is subject to certain United States laws, including but not limited to the Foreign Corrupt Practices Act of 1977 and any amendments thereto, which apply to activities carried out on Company's behalf outside the United States. Reseller agrees neither to take nor omit to take any action if such act or omission might cause Company to be in violation of any such laws. Upon written notice from Company, Reseller shall provide such information as Company may reasonably consider necessary to verify compliance by Reseller with the provisions of this section.
- The Services may require a license for export from the U.S. Government which requires advance disclosure of the ultimate consignee and all parties to the sale, and prohibits diversion, transshipment, or re-exportation out of the United States contrary to U.S. law and regulations by any party. Reseller agrees to furnish all documentation required by the U.S. Government in connection with obtaining any required export license, and agrees that unauthorized diversion, transshipment or re-exportation of the Company's Services in violation of the export license or any applicable law shall not be permitted.
- The parties hereby exclude any application of the United Nations Convention on Contracts in the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods, and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
Revised: September 17, 2013