VALUE ADDED RESELLER TERMS & CONDITIONS
(Effective January 1, 2011)
(a) These Terms and Conditions govern the respective rights and obligations of CyberSite.net, Inc. ("CyberSite.net"), and by inference its parent corporation Group One Communications, Inc. ("GOCI"), and the program participant (the "Reseller") identified in the program application (the "Program Application") completed by the Reseller and submitted to CyberSite.net. These Terms and Conditions apply to the Reseller's participation in the program identified in the Program Application, and any other program in which CyberSite.net may accept the Reseller's participation (in any such case, the "Program").
(b) CyberSite.net may modify these Terms and Conditions and the applicable Program Description from time to time in its sole discretion, which modifications will be effective upon posting to CyberSite.net's web site.
(c) The Acceptance Letter, the Program Application, the Program Description and these Terms and Conditions collectively form a single contract between CyberSite.net and the Reseller (the "Agreement"). The Acceptance Letter, Program Application and Program Description, as each may be modified or amended from time to time, are each incorporated herein by this reference.
CyberSite.net will provide Reseller the applicable discount set forth in the Program Description (the "Discount") for each order for Services or Products attributed to Reseller (each, an "Order"). Each Order purchased for a specific Reseller Customer shall not in any circumstances constitute a New Account for the Reseller as set for in the Value Added Reseller [VAR} Program Description. 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 Program Agreement, including any income, sales, or use tax on profits which may be levied against it.
3. Term and Termination.
(a) Reseller's participation in the Program will begin on the date of the Acceptance Letter sent by CyberSite.net to Reseller (the "Acceptance Date"). The Program Agreement will terminate on the first anniversary of the Acceptance Date. Thereafter, the Program Agreement will renew automatically for successive periods of one year unless either CyberSite.net or the Reseller gives notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
(b) Either party may terminate this Agreement at any time for any reason by giving notice to the other party at least thirty (30) days prior to the effective date of termination.
(c) Upon termination of this Agreement for any reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein, and except for CyberSite.net's obligation to provide the Discount for Orders accepted prior to the effective date of termination. The provisions of Sections 3, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which CyberSite.net may be entitled.
4. Reseller's Representations and Warranties.
Reseller hereby represents and warrants to CyberSite.net, and agrees that during the Term of the Agreement Reseller will ensure that: (a) The information regarding Reseller in the Program Application is true and correct in all material respects; (b) Reseller will comply with all applicable laws, rules and regulations in the conduct of its business; (c) Reseller will not make any representations concerning the Products or Services except those that have been approved or published by CyberSite.net; and (d) Reseller will not distribute any documents or materials describing the Products or Services except those that have been approved or published by CyberSite.net.
5. License to CyberSite.net.
CyberSite.net hereby grants to Reseller a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to post a copy of CyberSite.net's name and logo, and maintain a hypertext link to CyberSite.net's web site, (a) on a page in the Reseller web site where strategic partners are listed, and (b) on such other pages on the Reseller web site as may be specified in the Acceptance Letter.
6. CyberSite.net's Acceptable Use Policy.
Reseller will abide by and utilize the Program, CyberSite.net's other products and services, and the Reseller web site, only in accordance with the Acceptable Use Policy (the "Acceptable Use Policy") that CyberSite.net posts on its web site. As such Acceptable Use Policy may be changed by CyberSite.net from time to time, the Reseller is required to periodically visit this section to maintain a current knowledge of the VAR Terms and Conditions. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Reseller shall impose the Acceptable Use Policy on its Customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access CyberSite.net's Web site to determine if CyberSite.net has made any changes thereto.
7. Reseller's Responsibilities.
(a) 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 CyberSite.net or on the reputation of CyberSite.net or its products and services.
(b) Reseller will cause its personnel who are responsible for Reseller's activities under this Agreement to remain well-informed concerning CyberSite.net's products and services. Among other things, Reseller will cause such personnel to review CyberSite.net's web site occasionally to ensure that such personnel are reasonably familiar with CyberSite.net's product and service offerings, pricing, promotions, and product and/or service terms and conditions which may be separately posted.
8. CyberSite.net Intellectual Property.
(a) If the applicable Program Description gives Reseller the right to utilize any demonstration software programs, materials or other demonstration tools (collectively, "Demonstration Tools"), CyberSite.net hereby grants to Reseller a non-exclusive, non-transferable, royalty-free license, exercisable solely during the Term of this Agreement, to use applicable CyberSite.net Technology solely for the purpose of accessing and using the Demonstration Tools. Reseller may not use the CyberSite.net Technology for any purpose other than accessing and using the Demonstration Tools. Except for the rights expressly granted above, this Agreement does not transfer from CyberSite.net to Reseller any CyberSite.net Technology, and all rights, titles, and interests in and to the CyberSite.net Technology shall remain solely with CyberSite.net in perpetuity. 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 CyberSite.net Technology.
(b) CyberSite.net's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks, and slogans are the sole and exclusive property of CyberSite.net. Except as otherwise provided in the Agreement, Reseller may not use any of the foregoing in any advertising, publicity, or in any other commercial manner without the prior written consent of CyberSite.net.
(c) Any feedback, data, answers, questions, comments, suggestions, ideas, or the like which Reseller sends to CyberSite.net relating to the Services will be treated as being non-confidential and non-proprietary. CyberSite.net may use, disclose, or publish any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever.
9. Limited Warranty.
(a) CyberSite.net represents and warrants to Reseller that CyberSite.net will provide Products and/or Services in connection with the Orders in the same manner as CyberSite.net provides Products and/or Services to other customers at the same level and type of service.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, CYBERSITE.NET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND CYBERSITE.NET 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. CYBERSITE.NET DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
10. Limitation of Liability.
(a) IN NO EVENT WILL CYBERSITE.NET'S LIABILITY IN CONNECTION WITH THE PRODUCTS OR SERVICES, ANY SOFTWARE PROVIDED HEREUNDER, OR THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE DISCOUNT PAID BY CYBERSITE.NET TO RESELLER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(b) CYBERSITE.NET CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. CYBERSITE.NET 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.
(c) 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 THIS AGREEMENT, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) 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.
(d) 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 10(c) shall not apply to liability arising on account of a party's breach of Section 12 or to Reseller's indemnification obligations under Section 11.
11. Indemnification of CyberSite.net.
Reseller shall defend, indemnify, and hold harmless CyberSite.net, its affiliates and their respective present, former, and future officers, directors, employees, vendors, affiliates, and agents, and their respective heirs, legal representatives, successors, and assigns (collectively the "CyberSite.net Indemnitees"), from and against any and all losses, damages, costs, liabilities, and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the CyberSite.net Indemnitees may suffer, incur, or sustain resulting from or arising out of: (i) Reseller's breach of any representation, warranty, or covenant contained in this Agreement; (ii) services provided by the Reseller to any CyberSite.net customer; and (iii) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by Reseller pertaining to CyberSite.net's Services.
12. Confidentiality; Non-Solicitation.
(a) 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 12(b), each party will: (i) treat the Proprietary Information of the other party as secret and confidential; (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement; and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
(b) Notwithstanding Section 12(a), the following shall not be considered Proprietary Information: (i) 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; (ii) 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; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party; (iv) 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 (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
(c) 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 this 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.
(d) During the term of this Agreement and for two years following expiration or termination of this Agreement, Reseller will not, directly or indirectly, solicit or recruit the services of any employee, associate, vendor, affiliate, or sister subsidiaries of CyberSite.net and its parent corporation GOCI (inclusively each the ìEmployeesî) performing services in whole or in part under this Agreement, while such Employees are employed by CyberSite.net and for a period of six months after such Employees have left the employment of CyberSite.net.
(a) Independent Contractor. CyberSite.net and Reseller are independent contractors and nothing contained in this Agreement places CyberSite.net 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.
(b) Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS 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.
(c) Mandatory Arbitration. Notwithstanding Section 15(b) above, each party agrees that any dispute between the parties arising out of this 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 Los Angeles, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
(d) Headings. The headings herein are for convenience only and are not part of this Agreement.
(e) Entire Agreement; Amendments. This 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 this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence, or other communication of Reseller or CyberSite.net, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Reseller and CyberSite.net. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms and Conditions may be modified from time to time by CyberSite.net in its sole discretion, which modifications will be effective upon posting to CyberSite.net's web site.
(f) Severability. All rights and restrictions contained in this 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 this Agreement illegal, invalid, or unenforceable. If any provision or portion of any provision of this 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.
(g) 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 (i) for the Reseller, denoted in the Program Application, and (ii) for CyberSite.net, as designated on CyberSite.net's web site for the giving of notices. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein.
(h) 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 this 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.
(i) Assignment; Successors. Reseller may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of CyberSite.net. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. CyberSite.net 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 the consent of Reseller. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(j) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
(k) Counterparts. If this 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 this Agreement is signed electronically, CyberSite.net's records of such execution shall be presumed accurate unless proven otherwise.
(l) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this 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, 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.
(m) No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this 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 suppliers that is otherwise identified as a third-party beneficiary, is an intended third-party beneficiary of the provisions as set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Reseller as if it were a party to this Agreement. Without limiting the foregoing, MSLI, GP, a wholly-owned subsidiary of Microsoft Corporation, is an intended third-party beneficiary of the terms and conditions set forth in Addendum A with the right to enforce those provisions as provided in the preceding sentence.
(n) 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 this 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.
(o) Marketing. Reseller agrees that during the term of this Agreement CyberSite.net may publicly refer to Reseller, orally and in writing, as a business partner of CyberSite.net. Any other public reference to Reseller by CyberSite.net requires the written consent of Reseller.
14. 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:
(a) Reseller will comply with all laws relating to the conduct of business practices which prohibit any gratuities or inducements. Reseller acknowledges that CyberSite.net 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 CyberSite.net's behalf outside the United States. Reseller agrees neither to take nor omit to take any action if such act or omission might cause CyberSite.net to be in violation of any such laws. Upon written notice from CyberSite.net, Reseller shall provide such information as CyberSite.net may reasonably consider necessary to verify compliance by Reseller with the provisions of this section.
(b) The Products or 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 CyberSite.net's Services or products in violation of the export license or any applicable law shall not be permitted.
(c) 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.
For purposes of this Agreement, the following terms have the meanings specified below:
(d) "Acceptance Letter" means the acceptance letter sent by CyberSite.net to Reseller, referencing the Program, the Program Description and the Program Application.
(e) "CyberSite.net Technology" means CyberSite.net's proprietary technology, including, without limitation, CyberSite.net services, products, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects, and documentation (both printed and electronic), network designs, know-how, trade secrets, and any related intellectual property rights throughout the world (whether owned by CyberSite.net or licensed to CyberSite.net from a third party), and also including any derivatives, improvements, enhancements, updates, modifications, or extensions of CyberSite.net Technology conceived, reduced to practice, or developed during the term of this Agreement by either party.
(f) "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government, or any agency, or political subdivision thereof.
(g) "Program Description" means the official program description for the Program set forth on CyberSite.net's web site, as the same may be modified by CyberSite.net from time to time.
(h) "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public; (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use; and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
16. Value Added Reseller [VAR] Terms and Conditions.
Terms and conditions have been in effect since January 01, 1995, and are subject to change without prior notice. CyberSite.net retains the right to correct any typographical, grammatical, and/or content errors at any time without any prior notice to any Customer, User, or any other interested Party[ies].
17. Contact Information.
Attention: Deborah Odell, President/CEO
Group One Communications, Inc.
PO BOX 278
Acton, California 93510 USA
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