REGISTRATION SERVICE PROVIDER AGREEMENT ("RSP AGREEMENT") TO ALLOW FOR THE PROVISION OF RESELLONE WEBSITE BUILDER SERVICE This Agreement by and between: RESELLONE.NET CO. ("ResellOne") - and - THE RESELLER SIGNING BELOW
("Reseller") WHEREAS ResellOne provides a website builder service to allow end users to build and manage their websites and FTP this information to the Reseller's servers. Reseller wishes to provide one or more of the aforementioned services to its end users.
NOW THEREFORE, in consideration of the mutual promises herein and for other consideration, the receipt and sufficiency of which are hereby acknowledged, ResellOne and Reseller, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
(a) "API" means the set of technical specifications making up the application program interface;
(b) "Agreement" means this document, and all its schedules and other documents incorporated by reference;
(c) "Brand Management Environment" means the centrally hosted environment that provides the Reseller the ability to set its brand and login on behalf of their customers;
(d) "Customer" means the end user accessing the Website Builder Engine to create its own web site;
(e) "Customer Account" means the name which the Customer will use to access the Website Builder Engine;
(f) "Fee(s)" mean the monies payable for the Service selected by Reseller in accordance with Section 4 herein;
(g) "Service" means the website builder service described in s.2;
(h) "Software" means reference client software provided by ResellOne to Reseller;
(i) "Term" has the meaning outlined in Section 5 of this Agreement;
(j) "ResellOne Trademark" means all names, marks, logos, designs, trade dress and other brand designations used by ResellOne in connection with its products and services that Reseller has a right to offer pursuant to this Agreement;
(k) "Website Builder Engine" means the tool which the Customer interacts with in order to create its website;
(l) "Provisioning Environment" means the ResellOne environment which issues Customer Accounts to the Website
Builder Engine.
2. SERVICES PROVIDED
2.1 ResellOne Service is available as the following offering:
(a) Centrally hosted Website Builder Engine which will reflect the resellers brand;
(b) Centrally hosted Brand Management Interface;
(c) ResellOne may, without consent, from time to time provide enhancements to the Website Builder Engine and the Brand Management Environment, and API and Software, at no additional charge to Reseller or reduced functionality.
2.2 ResellOne may provide Reseller the Software, and/or a set of technical specifications making up the API, either of which will enable Reseller to develop its system to facilitate the resale of the Service to its Customers. Subject to the terms of this Agreement, if ResellOne provides Reseller with the Software, API, or both, ResellOne grants Reseller a non-exclusive, nontransferable worldwide limited license to use the Software and/or API, solely to enable Reseller to offer the Service to Customers. ResellOne may from time to time make modifications to the Software and the API licensed hereunder that will enhance functionality or otherwise improve or reduce its functionality. All rights not specifically granted to Reseller are reserved by ResellOne, including all intellectual property and moral rights.
2.3 ResellOne will not give, sell, lease, license or rent lists of Customer Accounts to any third party (unless required by law), to allow such third party to directly market other services or products to Customers, without Reseller consent, not to be unreasonably withheld or delayed.
3. RESELLER OBLIGATIONS
3.1 Reseller shall be responsible for providing customer service, billing, technical support and customer interface to accept orders from Customers. As part of its registration of all Customers during the Term, Reseller shall submit all data elements as specified in the interface to the Service using the appropriate ResellOne protocols.
3.2 Reseller shall comply with, and ensure that its Customers comply with, all generally applicable policies of ResellOne that may be established from time to time to assure sound, safe and legal operation regarding the use of the Service. Without limitation, Reseller agrees, and shall ensure that each and every Customer agrees, not to: (i) interfere with or disrupt the Service on any networks connected to the Service; (ii) take any action that imposes an unreasonable or disproportionately large load on ResellOne infrastructure providing the Service; (iii) modify, decompile, reverse engineer, disassemble or reproduce any of ResellOne licensed or owned software, systems, applications or components used in providing the Service; (iv) display any content that is unlawful or is likely to be the basis of any criminal, civil or regulatory action (including privacy protection actions) in the jurisdiction in which it is posted or intended to be viewed, (v) display any content that Customer does not have a right to make available, or (vi) use deceptive, misleading or unethical practices that are or might be detrimental to ResellOne or Customers or the general public.
3.3 Reseller acknowledges and agrees that if ResellOne, in its discretion, believes Reseller is abusing the Service, or system, not using the system as intended, or abusing the copyright, then ResellOne may, in its sole discretion, disable Reseller's ability to sell the Service.
3.4 The Reseller is extended a limited license to link to the Website Builder Engine. The Reseller cannot use it other than for the purposes outlined in 2.2, and agrees not to reverse engineer it to create Reseller's own similar service.
3.5 Reseller acknowledges and agrees that if requested by ResellOne, each Customer upon initiating or renewing access to the Website Building Engine, must agree to be bound by the terms and conditions of an end user license agreement or subscription agreement or acknowledgment of Customer's responsibility, no less protective of ResellOne than the form ResellOne shall post on its website from time.
3.6 Reseller acknowledges that ResellOne may supply any or all of the Software, API, or Services on its own behalf, or as a sublicensor or reseller on behalf of a third party supplier, and may substitute such third party suppliers without notice. Reseller acknowledges termination by ResellOne of the Services or any component thereof, may result in a termination under 5.1, but shall not constitute a breach under 5.2.
3.7 Reseller will have the right to advertise, promote and distribute the ResellOne Service under the ResellOne Trademarks (as defined below). ResellOne hereby grants Reseller a license to use the ResellOne Trademarks solely in connection with its advertising, promotion and distribution of the ResellOne Service which it is entitled to offer under this Agreement.
3.8 In performing its obligations hereunder, Reseller may refer to the ResellOne Service it is entitled to offer, (and associated ResellOne products and services or features), by the associated ResellOne Trademarks, provided that such reference is not misleading and complies with any guidelines issued by ResellOne from time to time. Except as set forth in this Section 3.6, Reseller is granted no right, title or license to, or interest in, any ResellOne Trademarks. Reseller acknowledges and agrees that any use of the ResellOne Trademarks by Reseller will enure to the sole benefit of ResellOne. If Reseller acquires any rights in any ResellOne Trademarks by operation of law or otherwise, it will immediately, at no cost or expense to ResellOne, assign such rights to ResellOne along with all associated goodwill.
4. FEES
4.1 A) Reseller shall prepay to ResellOne a mutually agreed upon nonrefundable initial fees, set forth on Schedule
A. This is calculated depending on what package is selected by the Customers. At the initiation of each Customer, Reseller shall pay a prorated fee for the balance of the month in which the Customer begins. At the beginning of each month, ResellOne will advise Reseller of the amount to be prepaid based on the number of Customers, and the specific packages those Customers have chosen. During the month, any changes to packages resulting in changed pricing, or attrition of Customers, shall result in a readjustment of the price to be prepaid by Reseller in the following month. ResellOne shall provide Reseller a monthly statement based on the number of Customers, packages selected, prices per package, and any other information pertinent to the calculation, summarizing the amounts owing with respect to same and to be prepaid for the following month.
B) Reseller acknowledges that: additional packages may be added, then existing packages may be removed, and the functionality of particular packages may be increased or decreased, with or without a change in pricing (but price changes shall not be retroactive).
4.2 If there are insufficient funds in Reseller's account at the time of withdrawal, ResellOne will decline the order. If during the monthly withdrawal of fees, there is insufficient funds, ResellOne will endeavour to send a daily request for payment to the Reseller's billing contact for a five (5) day period. If Reseller has not replenished its account to allow for the outstanding payment within said period, ResellOne may suspend the Customers' Service (preventing them from publishing any changes to their websites). If Reseller's account balance is fully depleted at any time, Reseller shall not be permitted to purchase Service until Reseller's account balance has the necessary funds available.
4.3 Reseller bears all risk and responsibility associated with billings to and collections from Customers, and bad debt.
4.4 Payment may be submitted by Reseller in the following manners:
(a) Via wire transfer to:
ResellOne Co.
Amegy Bank of Texas
4400 Post Oak Parkway
Houston, Texas 77027-7459
Beneficiary Name: ResellOne.net Co
Reseller agrees to pay all wire transfer charges.
Account # 3597210
ABA # 113011258
Reseller agrees to pay all wire transfer charges.
(b) Via check made payable to ResellOne.net Co. and delivered to it:
c/o ResellOne Inc.
390 Benmar Dr, Suite 200
Houston Tx 77060
(c) Via credit card, once the use of a credit card by Reseller is approved by ResellOne.net, by submitting a signed copy of the form made available for such purpose on ResellOne.net's website
(http://resellers.resellone.net/ccpayment.pdf).
4.5 ResellOne reserves the right to change the fees and the process for handling insufficient funds upon notice to Reseller.
5. TERM OF AGREEMENT
5.1 This Agreement shall commence on the Effective Date and continue until the earlier of the following:
(i) termination by either party upon thirty (30) days written notice, (ii) s.5.2 termination for cause; or (iii) ResellOne election to terminate its Service offering, or any component thereof, in which case ResellOne shall endeavor to provide Reseller with reasonable notice of same and use commercially reasonable efforts to service all existing Customers for a commercially reasonable transition period, but shall in no event be obliged beyond the Customer's unexpired term for which ResellOne has been paid.
5.2 If a) either Party materially breaches any term of this Agreement, and such breach is not cured within thirty (30) calendar days after written notice thereof is given by the other Party, or b) Reseller has not replenished its account to ResellOne satisfaction, by the end of any calendar month in which Service was suspended, in whole or part, pursuant to s.4.2; then the non-breaching Party may, but is not obliged to: A) terminate this Agreement as of the date specified in such notice of termination; B) cancel some or all of Customers' Customer Accounts. Nothing in this s.5.2 limits the non-breaching party's recourse to these remedies.
5.3 In addition to the foregoing termination rights, if ResellOne, in its reasonable discretion, determines that Reseller has breached any provision of this Agreement, is in violation of any Service policy or regulation as amended from time to time, has failed to provide adequate support to Customers, or is engaging in conduct that breaches or may put ResellOne in breach of any law or regulation, ResellOne may suspend Reseller's or Customers' access to the Service, pending the cure of such breach or violation, or change of such conduct, to the ResellOne satisfaction acting reasonably.
5.4 Upon termination, Reseller's access to the Service shall cease and Reseller shall not be able to renew or create any new Customer accounts. Reseller acknowledges ResellOne shall be entitled to directly communicate with Customers to minimize disruption in service, including transition to an alternate Reseller.
6. SUPPORT SERVICES
6.1 ResellOne shall provide Reseller support using, at its option, any or all of telephone, website or email. Reseller shall bear sole responsibility for providing support to Customers with respect to the Service. ResellOne.net will not provide support for the customers of Reseller.
7. MAINTENANCE AND SUSPENSION OF SERVICES
7.1 Reseller shall employ all necessary employees, contractors, or agents with sufficient technical training and experience to respond to and fix all technical problems concerning the use of the Service, the Software, and the API in conjunction with Reseller's systems. ResellOne may from time to time perform maintenance on or otherwise suspend and temporarily shut down the Website Builder Engine and Provisioning Environment. ResellOne will make commercially reasonable efforts to minimize any disruption of the Service.
8. SECURITY
8.1 Although information transmitted to ResellOne is stored in operating environments which ResellOne believe are within industry standards for security, Reseller agrees, and shall ensure that its Customers are advised and agree, that: (i) no data transmission over the Internet can be guaranteed 100% secure; (ii) ResellOne is not responsible for any interception or interruption of any communications through the Internet; Reseller and its Customers are responsible for maintaining the security of their respective access codes.
9. THIRD PARTY INFORMATION
9.1 Independent third parties may supply some or all software and information used in one or more components of the Service. While ResellOne makes every effort to ensure the accuracy of all software and information, ResellOne makes no warranty as to the accuracy of any such software or information.
10. REPRESENTATIONS AND WARRANTIES 10.1 Reseller acknowledges and agrees that ResellOne does not warrant, represent or guarantee that the Software, API, or Service will meet the requirements of Reseller or its Customers. The Software, API, and Service are provided "as is" without any warranty, representation or guarantee of any kind. Reseller acknowledges that Reseller, and not ResellOne, bears the entire responsibility for hosting of the websites. WITH REGARD TO THE SOFTWARE, API, AND SERVICE, AND SUPPORT THEREFORE, AND RIGHT TO PROVIDE SAME, RESELLONE (AND EACH OF ITS SUPPLIERS): A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; b) DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY OF THE SOFTWARE, API, OR SERVICE WILL MEET THE RESELLER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE, API, OR SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, API, OR SERVICE WILL BE CORRECTED; AND C) NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SOFTWARE, API, OR SERVICE, OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, OR OTHERWISE. SHOULD ANY OR ALL OF THE SOFTWARE, API, OR SERVICE, PROVE DEFECTIVE IN WHOLE OR PART, THE RESELLER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. RESELLONE AND ITS SUPPLIERS, SHALL NOT BE LIABLE FOR ANY MISREPRESENTATION, BREACH OF ANY IMPLIED OR EXPRESS WARRANTY OR CONDITION, OR BREACH OF ANY OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), OR BE OTHERWISE LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR: (A) INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES; (B) LOSS OF REVENUE; (C) LOSS OF PROFITS; (D) LOSS OF BUSINESS OR GOODWILL; (E) LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, SOFTWARE OR HARDWARE; (F) LOST EMAIL OR DATA OR (G) PUNITIVE DAMAGES; EVEN IF RESELLONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE SOLE REMEDY BELOW FAILS OF ITS ESSENTIAL PURPOSE. RESELLER'S SOLE REMEDY IN THE CASE OF ANY LOSS OR DAMAGE RESULTING FROM ANY MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, ERROR OR DEFECT IN THE PRODUCTS OR SERVICES PROVIDED BY RESELLONE HEREUNDER SHALL BE TERMINATION OF THIS AGREEMENT, AND THE RETURN OF ANY UNUSED DEPOSIT.
11. INDEMNITY
11.1 Reseller, at its own expense, will indemnify, defend and hold harmless ResellOne and its employees, directors, officers, representatives, agents, affiliates and third party beneficiaries (including ResellOne suppliers), against any claim, suit, action, or other proceeding brought against ResellOne based on or arising from any claim or alleged claim (i) relating to any product or service of Reseller, including, but not limited to, Reseller's advertising, systems and other processes, fees charged, billing practices and customer service; or (ii) relating to any agreement with any Customer of Reseller. Reseller will not enter into any settlement or compromise of any such indemnifiable claim without ResellOne prior written consent, which consent shall not be unreasonably withheld. Reseller will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by ResellOne in connection with or arising from any such indemnifiable claim, suit, action or proceeding. If ResellOne is threatened with suit by a third party, it may seek written reiteration of Reseller's indemnification obligations; any failure by Reseller to provide said written assurance may result in suspension or termination of its account.
12. MISCELLANEOUS
12.1 This Agreement shall be governed and construed in accordance with the laws of the State of Texas and the United States of America, excepting its choice of law provisions, and the venue shall be Houston, Texas.
12.2 The following sections survive termination of this Agreement: 8, 9, 10, 11 and 12.
12.3 Additional standard terms relating to this Agreement appear at http://www.resellone.net/legal/ and, as amended from time to time, are incorporated by reference.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the later date set forth.