May 05, 2022
RESELLER MASTER AGREEMENT
This Reseller Master Agreement (hereinafter
referred to as the "Agreement") is made, entered into and executed on May 6,
2023 (hereinafter referred to as the "Effective Date")
BETWEEN:-
NabTech Digitalnet Limited (hereinafter referred to as "Parent") and you (hereinafter
referred to as 'Reseller' or 'You'). If you are entering into this agreement on
behalf of a company or other legal entity, you represent that you have the
authority to bind such entity to these terms and conditions, in which case the
term "Reseller" shall refer to such entity.
(The Parent and the Reseller
may be referred to individually as a "Party" and collectively as the "Parties").
WHEREAS the Parent provides various Products and Services;
AND
WHEREAS the Reseller wishes to purchase and resell Parent's Products and
Services
NOW, THEREFORE, for and in consideration of the mutual promises,
benefits and covenants contained herein and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the Parent and the Reseller, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS
(1) "Accounting Currency" refers
to the Accounting Currency of the Parent within the Nabtech Database.
(2) "Advance Account" refers to the credit balance maintained by the Reseller
with the Parent.
(3) "Agreement" refers to this Reseller Master Agreement
alongwith all its appendices, extensions and amendments at any given point in
time.
(4) "Business Day" refers to a working day between Monday to Friday
excluding all Public Holidays.
(5) "Available Balance" refers to credit
in the Advance Account after deducting any accrued liabilities, Locked Funds and
debited amounts.
(6) "Confidential Information", as used in this
Agreement shall mean all data, information and materials including, without
limitation, computer software, data, information, databases, protocols,
reference implementation, documentation, functional and interface
specifications, provided by Parent to the Reseller under this Agreement, whether
written, transmitted, oral, through the Parent Website or otherwise, that is
marked as Confidential.
(7) "Customer" refers to the customer of the
Order as recorded in the Nabtech Database.
(8) "Parent Products" refer
to all products and services of Parent which it has provided/rendered/sold, or
is providing/rendering/selling through this Reseller Program.
(9) "Parent
Servers" refer to Web Servers, Mailing List Servers, Database Servers, Nabtech
Servers and any other Machines / Servers that Parent or its Service Providers
Operate, for the Nabtech, the Parent Website, the Parent Mailing Lists, Parent
Products and any other operations required to fulfill services and operations of
Parent.
(10) "Parent Website" refers to nabtech.co, nabtech.com.ng, and nabtech.co.za
(11) "Nabtech" refers to the set of Servers, Software, Interfaces, Parent
Products and API that is provided for use directly or indirectly under this
Agreement by the Parent and/or its Service Providers.
(12) "Nabtech
Database" is the collection of data elements stored on the Nabtech Servers.
(13) "Nabtech Servers" refer to Machines / Servers that Parent or its
Service Providers maintain to fulfill services and operations of the Nabtech.
(14) "Nabtech User" refers to the Reseller and any Customer, Sub-Reseller,
Agent, Employee, Contractee of the Reseller or any other Legal Entity, which has
been provided access to the "Nabtech" by the Reseller or through the Reseller's
website, directly or indirectly.
(15) "Locked Funds" refers to the amount
of funds temporarily debited to the Resellers Advance Account while an Order is
being Modified, Deleted, Extended, Cancelled or Processed. "Confirming Locked
Funds" refers to the act of permanently debiting this amount to the Reseller's
Advance Account. "Canceling Locked Funds" refers to the act of recrediting the
amount back to the Reseller's Advance Account.
(16) "Lower Tier
Sub-Resellers" - The Reseller may make Parent Products under this agreement
available to Sub-Resellers. Further the Reseller agrees that such Sub-Resellers
may make Parent Products available to their affiliates, partners, or resellers
who may make Parent Products available to their affiliates, partners or
resellers and so on (collectively known as "Lower Tier Sub-Resellers").
(17) "Order" refers to a Parent Product purchased directly or indirectly by a
Reseller, having a unique Order ID in the Nabtech Database.
(18)
"Reseller Contact Details" refers to the Contact Details of the Reseller as
listed in the Nabtech Database.
(19) "Reseller Control Panel" refers to
the set of Web-based interfaces provided by the Parent and its Service Providers
to the Reseller which allows him to Manage Orders, Customers and Lower Tier
Resellers.
(20) "Reseller Master Agreement" refers to this Agreement.
(21) "Reseller Product Agreement Extension" refers to the latest version of
a Specific Reseller Product Agreement Extension as posted in the Reseller
Control Panel or on the Parent Website.
(22) "Reseller Transactions"
refers singly and cumulatively to credits/debits applied to the Resellers
Advance Account.
(23) "Selling Currency" refers to the Selling Currency
of the Parent within the Nabtech Database.
(24) "Service Providers"
refers individually and collectively to any Artificial Juridical Persons,
Company, Concern, Corporation, Enterprise, Firm, Individual, Institute,
Institution, Organization, Person, Society, Trust or any other Legal Entity that
Parent or its Service Providers (recursively) may, directly or indirectly,
Engage / Employ / Outsource / Contract for the fulfillment / provision /
purchase of Parent Products, Nabtech, and any other services and operations of
Parent.
(25) "ICANN" is the Internet Corporation for Assigned Names and
Numbers.
(26) "ICANN ERRP" shall have the same meaning as ascribed to
such term in Appendix 'E'.
(27) "Sub-Reseller" refers to any Artificial
Juridical Persons, Company, Concern, Corporation, Enterprise, Firm, Individual,
Institute, Institution, Organization, Person, Society, Trust or any other Legal
Entity that is registered as a Sub-Reseller under the Reseller as per the data
in the Nabtech Database, or who resells Parent Products through the Reseller.
(28) "Prohibited Persons" refers to individuals, organizations or entities
located in certain sanctioned countries (each a "Sanctioned Country") and
certain individuals, organizations, entities, or domain names, including without
limitation, "Specially Designated Nationals" ("SDN"), as listed by the
government of the United States of America through the Department of the
Treasury's Office of Foreign Assets Control ("OFAC"), with whom all or certain
commercial activities are prohibited.
2. RESELLER PRODUCT AGREEMENT
EXTENSIONS
(1) The Reseller may purchase and resell various Parent
Products by executing, in a form and manner prescribed by Parent, one or more
Reseller Product Agreement Extensions, which shall then be included as a part of
this Agreement.
(2) Any conflicting definitions, terms and conditions in
a Reseller Product Agreement Extension shall take precedence over the same
definition, terms and conditions in this Agreement, and shall be applied only to
that Reseller Product Agreement Extension.
(3) The Reseller agrees to
adhere to the SiteLock Terms and Conditions, available at
https://www.sitelock.com/terms.php, that are incorporated herein and made a part
of this Agreement by reference.
(4) The Reseller agrees to adhere to the
CodeGuard Terms and Conditions, available at
https://codeguard.com/pages/terms-of-service, that are incorporated herein and
made a part of this Agreement by reference.
(5) The Reseller agrees to
adhere to the Google Terms and Conditions, available at
http://www.google.co.in/intl/en/policies/terms/regional.html, that are
incorporated herein and made a part of this Agreement by reference.
(6)
The Reseller agrees to adhere to the Google Privacy Policy, available at
http://www.google.com/intl/en/policies/privacy/, that are incorporated herein
and made a part of this Agreement by reference.
(7) Reseller shall ensure
that the following provision shall be included in the Customer Master Agreement
if the Reseller promotes, markets or sells the Parent Products which include a
product named as “Impress.ly”.
(8) If the Customer selects and purchases
any Parent Products which include a product named as “Impress.ly” the Customer
hereby understands, acknowledges and accepts that the Customer shall be bound by
the terms and conditions provided by AppMachine B.V. at: 1.
http://www.impress.ly/docs/EULA.pdf and 2.
http://www.impress.ly/docs/Impressly-privacy-and-cookie-statement.pdf
(collectively refered to as “Impress.ly Term and Condition”). Save as otherwise
provided in the Impress.ly Terms and Conditions with respect to the use and
operation of Impress.ly, any transaction or matter between the Customer and
Parent pertaining to purchase of the Parent Products i.e. Impress.ly shall be
governed in accordance with this Agreement.
(9) If the Reseller selects
and purchases any Parent Products which include secure sockets layer certificate
either provided by the Parent through its Service Providers under a single brand
i.e. Digicert SSL or in combination with the other brands of the Parent or the
Service Providers, the Terms of Service and other polices (if any) available at
https://www.digicert.com/security-terms (collectively referred to as "DigiCert SSL Terms
of Service"), with respect to the products of said brand shall be applicable and
the Reseller shall comply with such terms and conditions and privacy policy.
The Parent does not endorse or assure the quality, availability, or timeliness
or any other assurance in relation to product or services provisioned by
non-NabTech Digitalnet Limited website(s).
(10) If the Reseller selects,
promotes and sells any Parent Products which includes hosting services either
provided by the Parent under a single brand i.e. Nabtech or in combination
with the other brands of the Parent, the acceptable usage policy,the privacy
policy and Copyright Infringement Policy, Terms of Service available at
https://nabtech.co/privacy-policy.php,
https://nabtech.co/terms-condition.php respectively, with respect to the said brand’s
product shall be applicable. In addition thereto, the Reseller shall notify the
Customers that they must comply with all terms and conditions and privacy policy
applicable to Nabtech products
For avoidance of doubt it hereby clarified
that all other terms, conditions and policies of the Parent shall be applicable
with respect to the foregoing products unless otherwise expressly mentioned in
the foregoing sentence.
(11) If the Reseller selects and purchases any
Parent Products which include hosting services either provided by the Parent
through its Service Providers under a single brand i.e. Nabtech or in
combination with the other brands of the Service Providers, the Terms of Service
and other polices (if any) available, with respect to the
products of said brand shall be applicable and the Reseller shall comply with
such terms and conditions and privacy policy.
The Parent does not endorse or
assure the quality, availability, or timeliness or any other assurance in
relation to product or services provisioned by non-NabTech Digitalnet Limited
website(s).
3. OBLIGATIONS OF THE PARENT
(1) Parent shall make
available the latest versions of the Reseller Master Agreement, and the Reseller
Product Agreement Extensions in the Reseller Control Panel.
(2) Parent
will notify the Reseller via email whenever newer versions of any Reseller
Master Agreement or Reseller Product Agreement Extensions are posted in the
Reseller Control Panel.
4. OBLIGATIONS OF THE RESELLER
(1) The
Reseller shall be responsible for providing customer service, billing support,
and technical support to their Sub-Resellers, Lower Tier Sub-Resellers &
Customers.
(2) The Reseller acknowledges that in the event of any dispute
and/or discrepancy concerning any data element of an Order, Sub-Reseller, Lower
Tier Sub-Reseller or Customer in the Nabtech Database, the data element in the
Nabtech Database records shall prevail.
(3) The Reseller acknowledges
that all information of the Customer in the Nabtech, including authentication
information is accessible to Parent and its Service Providers
(4) The
Reseller will not make any changes to any information or configuration of an
Order without explicit authorization from the customer of that Order
(5)
The Reseller shall comply with all other terms or conditions established by
Parent and/or its Service Providers from time to time.
(6) Reseller
acknowledges that Parent Products may be obtained through Service Providers, and
as such, changes in structure, or contracts may occur, and as a result services
may be adversely affected. Reseller acknowledges and agrees that Parent shall
not have any liability associated with any such occasion.
(7) The
Reseller agrees that Parent Products under this agreement may be made available
to Customers, Sub-Resellers and Lower Tier Sub-Resellers only after they enter
into a legally binding agreement which is no less protective of Parent than this
Agreement and which contains the requirements contained herein applicable to the
Reseller. The Reseller acknowledges and agrees that the Reseller will be
responsible for ensuring Customers', Sub-Resellers' and Lower Tier
Sub-Resellers' compliance with such applicable terms and conditions and shall be
responsible for any liability resulting from Customers', Sub-Resellers' and
Lower Tier Sub-Resellers' noncompliance with such terms and conditions.
(8) The Reseller agrees to provide, maintain and update, current, complete and
accurate information for all the data elements about the Reseller in the
Nabtech Database.
(9) During the term of this Agreement and for three
years thereafter, Reseller (himself/herself/itself or by its Agent / Authorised
Representative) shall maintain the following records relating to its dealings
with Parent, Sub-Resellers, Customers, Prospective Customers and/or their Agents
or Authorized Representatives:-
(1) In electronic, paper or microfilm
form, all written communications with respect to Parent Products.
(2) In
electronic form, records of the accounts of all, current / past Orders with the
Reseller, including dates and amounts of all payments, discount, credits and
refunds.
(3) Reseller shall make these records available for inspection
by Parent upon reasonable notice not exceeding 14 days.
(10) Any
registration agreement used by reseller shall include all registration agreement
provisions and notices required by the ICANN Registrar Accreditation Agreement
and any ICANN Consensus Policies, and shall identify the sponsoring registrar or
provide a means for identifying the sponsoring registrar, such as a link to the
InterNIC Whois lookup service.
(11) Reseller shall identify the
sponsoring registrar upon inquiry from the customer.
(12) Reseller shall
provide the Registrant with the unique "AuthInfo" code within five (5) calendar
days of the Registrants initial request.
(13) Reseller acknowledges and
ensures that the identity and contact information provided by the customer of
any privacy or proxy registration service offered or made available by the
reseller in connection with each registration will be deposited with Registrar
or held in escrow or, alternatively, the Reseller will display a conspicuous
notice to such customers at the time an election is made to utilize such privacy
or proxy service that their data is not being escrowed. Where escrow is used,
the escrow agreement will provide, at a minimum, that data will be released to
registrar in the event reseller breaches our reseller-master agreement, and such
breach is harmful to consumers or the public interest. In the event that ICANN
makes available a program granting recognition to resellers that escrow privacy
or proxy registration data as detailed above, and reseller meets any other
criteria established by ICANN in accordance with its Bylaws, reseller shall be
permitted to apply to ICANN for such recognition.
(14) Reseller shall
provide a link to the ICANN webpage that identifies available registrant
benefits and
responsibilities(https://www.icann.org/resources/pages/benefits-2013-09-16-en)
on the site where the Reseller operates for domain name registration or renewal.
(15) Reseller shall provide a link to the ICANN webpage that identifies
registrant educational material
(https://www.icann.org/resources/pages/educational-2012-02-25-en) on the site
where the Reseller operates for domain name registration or renewal.
(16)
Reseller acknowledges, agrees and ensures that the Registrant accepts the
"Registrar Registrant Agreement" before purchasing domain names. The Reseller
shall display the "Registrar Registrant Agreement" before collecting payment
from the Registrant.
(17) Reseller agrees to display domain registration,
renewal, transfer and restore fee on its website for all the TLD's offered by
them during the term of this Agreement.
(18) Reseller agrees that it will
display the communication and notification methods on their website to
communicate with the Registrant. Reseller shall include domain pre and post
expiry notice details and how the registrant will be informed about expiring
domains. Reseller will ensure that the Registrant contact for expiring domain
names will receive renewal reminders atleast 30 days and 7 days before expiry. A
third reminder will also be sent immediately after the domain name expires.
(19) Reseller has to comply with any ICANN-adopted Specification or Policy
that establishes a program for accreditation of individuals or entities who
provide proxy and privacy registration services. Reseller agrees that proxy and
privacy registration services may only be provided in respect of domain name
registrations by individuals or entities Accredited by ICANN pursuant to their
Proxy Accreditation Program. Until such time as the Proxy Accreditation Program
is established, Resellers shall comply with the Privacy and Proxy Registrations
specifications outlined by ICANN at
http://www.icann.org/en/resources/registrars/raa/approved-with-specs-27jun13-en.htm#privacy-proxy.
(20) Reseller agrees to comply and co-operate with the Parent for any Audit
programs initiated and conducted by the Parent to ensure compliance to the
obligations mentioned above. The Resellers chosen for the Audit program will be
given a reasonable notice, at least 15 days, to provide requested data for
verification. Resellers who fail the Audit program will be given an opportunity
to fix the deficiencies before any escalated action is taken by the Parent.
Failure to fix the deficiencies within a reasonable time allotted by the Parent
may result in suspension of the Reseller account and subsequent termination of
the Agreement.
(21) Reseller shall not transact with or act on behalf of
any Prohibited Person. If Reseller is a Prohibited Person, Reseller is
prohibited from registering or signing up with, subscribing to, or using any
Parent Product, or participating in the Reseller program. Any violation of this
provision ("OFAC Provision") as determined in Parent's sole discretion, may
result in the suspension and/or termination of the Reseller account and the
termination of this Agreement without a refund or compensation of any kind to
Reseller.
5. REPRESENTATIONS AND WARRANTIES
Parent and the
Reseller represent and warrant that:-
(1) They each have all requisite
power and authority to execute, deliver and perform their obligations under this
Agreement;
(2) This Agreement has been duly and validly executed and
delivered and constitutes a legal, valid and binding obligation, enforceable
against the Reseller and Parent in accordance with its terms;
(3) The
execution, delivery, and performance of this Agreement and the consummation by
Parent and the Reseller of the transactions contemplated hereby will not, with
or without the giving of notice, the lapse of time, or both, conflict with or
violate:-
(1) any provision of law, rule, or regulation;
(2) any
order, judgment, or decree;
(3) any provision of corporate by-laws or
other documents; or
(4) any agreement or other instrument.
(4) the
execution, performance and delivery of this Agreement has been duly authorized
by the Reseller and Parent;
(5) No consent, approval, or authorization
of, or exemption by, or filing with, any governmental authority or any third
party is required to be obtained or made in connection with the execution,
delivery, and performance of this Agreement or the taking of any other action
contemplated hereby;
The Reseller represents and warrants that:
(1) the Reseller has read and understood every clause of this Agreement
(2) the Reseller has independently evaluated the desirability of the service and
is not relying on any representation agreement, guarantee or statement other
than as set forth in this agreement
(3) the Reseller is not a Prohibited
Person and is not acting on behalf of a Prohibited Person; and
(4) the
Reseller is eligible, to enter into this Contract according to the laws of the
Reseller's country
6. RIGHTS OF PARENT AND SERVICE PROVIDERS
(1)
Parent and Service Providers may change any information, including
Authentication Information of the Reseller in the Nabtech Database upon
receiving authorization from the Reseller or any authorized representatives of
the Reseller in any form as maybe prescribed by Parent from time to time.
(2) Parent and Service Providers may provide/send any information in the
Nabtech Database, about the Reseller, including Authentication information
(1) to the Reseller Contact Details
(2) to any authorized
representative, agent, contractee, employee of the Reseller upon receiving
authorization in any form as maybe prescribed by Parent from time to time
(3) to the Service Providers
(3) Parent and Service Providers in its
own discretion can at any point of time temporarily or permanently cease to sell
a Parent Product
(4) Parent may provide/send any information in the
Nabtech Database, about the Nabtech Users, Customers, Sub-Resellers and Lower
Tier Sub-Resellers including Authentication Information, to the contact details
of the Nabtech Users, Customers, Sub-Resellers and Lower Tier Sub-Resellers in
the Nabtech Database, or to the authorized representative, agent, contractee,
employee of the corresponding Nabtech Users, Customers, Sub-Resellers and Lower
Tier Sub-Resellers upon receiving authorization in any form as maybe prescribed
by Parent from time to time
(5) Parent reserves the right to change
pricing, minimum order levels, and discounts, of any Parent Product , at any
time.
(6) Parent reserves the right to introduce promotional marketing
schemes for any Parent Product at anytime. Parent make it mandatory upon
Reseller and Lower Tier Sub-Resellers to participate in such a promotional
marketing scheme provided that the program shall only be mandatory for Reseller
and those Lower Tier Sub-Resellers who have signed up for the said Parent
Product.
(7) Parent and Service Providers, in their sole discretion,
expressly reserve the right to deny any Order or cancel an Order within 30 days
of processing the same. In such case Parent may refund the fees charged for the
Order, after deducting any processing charges for the same.
(8) Parent
and Service Providers, in their sole discretion, without notice, expressly
reserve the right to to fix any bugs in, modify, upgrade, freeze the Nabtech,
Parent Products and its associated services. Parent in its sole discretion,
without notice, expressly reserves the right to modify the content on any page
within the Nabtech and Parent product interfaces, including but not limited to
marketing content, images, html, styles, pricing information and any other
information, Reseller acknowledges that actions described in this paragraph may
occur without notification or knowledge of the Reseller. Parent will not be held
responsible or liable for any such changes under any circumstance.
(9)
Notwithstanding anything to the contrary, Parent and Service Providers, in their
sole discretion, expressly reserve the right to without notice or refund,
acccess, delete, suspend, deny, cancel, modify, intercept and analyze traffic
of, copy, backup, access data of, redirect, log usage of, monitor, limit access
to, limit access of, take ownership of or transfer any Order, or to delete,
suspend, freeze, modify Nabtech Users' access to Nabtech, or to modify,
upgrade, suspend, freeze Nabtech, or to publish, transmit, share data in the
Nabtech Database with any person or entity, or to contact any entity in the
Nabtech Database, in order to recover any Payment from the Reseller for any
service rendered by the Parent including services rendered outside the scope of
this agreement for which the Reseller has been notified and requested to remit
payment, or to publish, transmit, share data in the Nabtech Database with any
person or entity, or to contact any entity in the Nabtech Database, or to
correct mistakes made by Parent or its Service Providers in processing or
executing an Order, or in the case of any breach or violation or threatened
breach or violation of this Agreement, or in case Parent learns of a possibility
of breach or violation of this Agreement which Parent in its sole discretion
determines to be appropriate, or incase of Termination of this Agreement, or if
Parent learns of any such event which Parent reasonably determines would lead to
Termination of this Agreement or would constitute as Breach thereof, or to
protect the integrity and stability of the Parent Products and the Nabtech, or
to comply with any applicable laws, government rules or requirements, requests
of law enforcement, or in compliance with any dispute resolution process, or in
compliance with any agreements executed by Parent, or to avoid any liability,
civil or criminal, on the part of Parent and/or Service Providers, as well as
their affiliates, subsidiaries, officers, directors and employees, or if the
Reseller and/or its Customers, Sub-Resellers, Lower Tier Sub-Resellers or any
other authorized representatives of the Reseller violate any applicable
laws/government rules/usage policies, including but not limited to, intellectual
property, copyright, patent or Parent learns of the possibility of any such
violation, or upon authorization from the Reseller in any manner that Parent
deems satisfactory, or for any other appropriate reason. The Reseller agrees
that Parent and Service Providers, and the contractors, employees, directors,
officers, representatives, agents and affiliates, of Parent and Service
Providers, are not liable for loss or damages that may result from any of the
above.
(10) In case of Orders involving web services, Parent and Service
Providers can choose to redirect any Order to any IP Address including, without
limitation, to an IP address which hosts a parking page or a commercial search
engine for the purpose of monetization, if an Order has expired, or is
suspended, or does not contain valid information to direct it to any
destination. Reseller acknowledges that Parent and Service Providers cannot and
do not check to see whether such a redirection, infringes any legal rights
including but not limited to intellectual property rights, privacy rights,
trademark rights, of Reseller, or that the content displayed due to such
redirection is inappropriate, or in violation of any federal, state or local
rule, regulation or law, or injurious to Reseller or any third party, or their
reputation and as such is not responsible for any damages caused directly or
indirectly as a result of such redirection.
(11) Parent has the right to
rectify any mistakes in the data in the Nabtech Database with retrospective
effect.
(12) Parent and Service Providers reserve the right to prohibit
the use of any of their services in connection with any Country-Code Top Level
Domain Name ("ccTLD") of any Sanctioned Country.
(13) Parent and Service
Providers expressly reserve the right to suspend or terminate Reseller's
account, without prior notice and without issuing a refund or compensation of
any kind, if Parent or Service Provider determines in its sole discretion, that
Reseller has violated the OFAC Provision in Section 4. Parent and Service
Provider shall not be liable for any loss or damages resulting from such action
whether such loss or damage is incurred by the Reseller, the Reseller's
customer, or a third party. Parent will not directly or indirectly refund any
amounts to any Prohibited Person, including without limitation, any amounts in a
Reseller's Advance Account.
7. TERMS OF AGREEMENT AND RENEWAL
(1).
Subject to the term of this Agreement, the initial term of the Order purchased
by You shall be for the period set forth in the registration form presented to
You at the first time You purchase the Order (the "Initial Term"). Unless You
cancel prior to the end of the Initial Term, the Term shall automatically renew
for successive periods (each a "Renewal Period") of equal length as the Initial
Term, unless otherwise You elect not to renew at the end of the Initial Term or
Renewal Period by giving a written notice of 30 days prior to expiry of Initial
Term or the Renewal Period, as the case may be. For the purpose of this section
Term shall include Initial Term or Renewal Period as the context may arise. You
acknowledge, agree, and authorize the Parent to automatically bill the
applicable fee and/or charge your Advance Account and/or Card Information (as
defined herein below) or other payment account on file, if any, for each Renewal
Period, unless you terminate or cancel the Order prior to such charge as
provided in this section.
(2) This Agreement shall be terminated in
accordance with the Section 8 (TERMINATION OF AGREEMENT).
8. TERMINATION
OF AGREEMENT
(1) Either Party may terminate this Agreement and/or any
Reseller Product Agreement Extension at any time
(1) With immediate
effect, if the other Party is adjudged insolvent or bankrupt, or if proceedings
are instituted by or against a Party seeking relief, reorganization or
arrangement or compromise or settlement under any laws relating to insolvency,
or seeking any assignment for the benefit of creditors, or seeking the
appointment of a receiver, liquidator or trustee of a Party's property or assets
or the liquidation, dissolution or winding up of a Party's Business.
(2)
Parent may Terminate this Agreement and/or any Reseller Product Agreement
Extension by notifying the Reseller in writing, as of the date specified in such
notice of termination under the following circumstances
(1) In the event
that the Reseller or an Agent / Employee / Authorized Representative of the
Reseller materially breaches any term of this Agreement and/or any Reseller
Product Agreement Extension, including any of its representations, warranties,
covenants and agreements hereunder
(2) There was a material
misrepresentation and/or material inaccuracy, and/or materially misleading
statement in Reseller's Application to Parent and/or any material accompanying
the application.
(3) By giving a 30 (Thirty) days advance notice of
termination delivered as per Section 25 (NOTICE).
(4) With immediate
effect if:-
(1) the Reseller is convicted of a felony or other serious
offense related to financial activities, or is judged by a court to have
committed fraud or breach of fiduciary duty, or is the subject of a judicial
determination that Parent reasonably deems as the substantive equivalent of any
of these; or
(2) the Reseller is disciplined by the government of its
domicile for conduct involving dishonesty or misuse of funds of others.
(3) as provided for in Appendix 'A' and Appendix 'C'
(4) if Any officer
or director of the Reseller is convicted of a felony or of a misdemeanor related
to financial activities, or is judged by a court to have committed fraud or
breach of fiduciary duty, or is the subject of a judicial determination that
Parent deems as the substantive equivalent of any of these;
(3) Reseller
may Terminate this Agreement and/or any Reseller Product Agreement Extension by
notifying Parent in writing, as of the date of receipt of such notice, in the
event that the Reseller does not agree with any revision to the Agreement or any
Reseller Product Agreement Extension made as per Section 15 (RIGHT TO SUBSTITUTE
UPDATED AGREEMENT AND RESELLER Product Agreement EXTENSIONS) within 30 days of
such revision.
(4) Any Product Agreement Extension shall terminate with
immediate effect in the event that
(1) Parent ceases to sell the
particular Parent Product covered under that Product Agreement Extension
(2) Parents contract with Service Provider for the particular Parent Product
terminates or expires without renewal
(5) Effect of Termination of this
Agreement
(1) Parent shall suspend Nabtech Users' access to the
Nabtech, Parent Servers and all Parent Products and Services, under this
agreement and all Reseller Product Agreement Extensions, immediately upon
receiving Termination notice from the Reseller or upon learning of any event,
which Parent reasonably determines, would lead to Termination of the Agreement.
(2) Upon expiration or termination of this Agreement, all Reseller Product
Agreement Extensions signed by the Reseller shall deemed to have been Terminated
with immediate effect
(3) Upon expiration or termination of this
Agreement, Parent may complete the processing of all Orders requested to be
processed, in the order that they were requested to be processed, by the
Reseller prior to the date of such expiration or termination, provided that the
Reseller's Advance Account with Parent has Available Balance sufficient to carry
out these Orders. If Parent is unable to fulfill these Orders then the charges
levied to the Reseller for these Orders will be reversed
(6) Effect of
Termination of any Reseller Product Agreement Extension
(1) Parent may
suspend Nabtech Users' access to applicable Parent Products and Services, and
the Nabtech immediately upon receiving Termination notice from the Reseller or
upon learning of any event, which Parent reasonably determines, would lead to
Termination of any Reseller Product Agreement Extension
(2) Upon
expiration or termination of any Reseller Product Agreement Extension, Parent
may complete the processing of all Orders, of that Parent Product, in the order
that they were requested to be processed, by the Reseller prior to the date of
such expiration or termination, provided that Parent is in a position to fulfill
these Orders, and the Reseller's Advance Account with Parent has Available
Balance sufficient to carry out these Orders. If Parent is unable to fulfill
these Orders then the charges levied to the Reseller for these Orders will be
reversed
(3) Parent may transfer all Orders falling under the purview of
the specific Reseller Product Agreement Extension to another Reseller or Parent.
(7) Any pending balance due from the Reseller at the time of termination of
this Agreement or any Reseller Product Agreement Extension will be immediately
payable.
(8) Neither Party shall be liable to the other for damages of
any sort resulting solely from terminating this Agreement or any Reseller
Product Agreement Extension in accordance with its terms, unless specified
otherwise.The Reseller however shall be liable for any damage arising from any
breach by it of this Agreement or any Reseller Product Agreement Extension.
9. FEES / ADVANCES / RENEWALS
(1) You shall pay all applicable
fees/advances as per the Payment Terms and Conditions set out in Appendix 'C';
In addition to the foregoing, You agree by purchasing the Order(s) the Parent
shall be allowed to place Your account on a recurring payment plan. Unless You
disable the automatic renewal option by selecting appropriate option in the
Reseller Control Panel, the Parent shall have the right to automatically renew
the Order(s) when it comes up for renewal and will take payment from the payment
method the Parent have on file. For avoidance of doubt it is agreed between the
Parties that auto-renewal shall be available for all Order(s) (except for the
"Digital Certificates").
You acknowledge, agree and authorize the Parent
or its Service Providers to seek, demand, capture, process, transfer and store
your debit/credit card information (the "Card Information") when you are making
any purchase or renewing the Order(s) and have selected the auto-renewal and
recurring payment plans.
You agree and acknowledge that auto-renewal
subjected to recurring payment plans may fail in the following scenarios:-
a. If you disable auto-renewal for any Order, at any time;
b. If you
delete any Card Information on record from the Reseller Control Panel, the Card
Information expires, or insufficient of funds or exceeds its permissible limit;
c. If the Nabtech is unable to successfully carry out auto-renewal of your
Order(s) in cases including, but not limited to, the Order being
locked/suspended, an action waiting to be processed etc. in accordance with this
Agreement;
In such event, you agree and acknowledge that it is your
responsibility to manually track of and renew the Order(s).
(2) Parent
will charge a non-refundable fee for an Order unless stated otherwise in any
Product Agreement Extension. The applicable fees will be displayed in the
Reseller Control Panel or on the Parent Website and during the Ordering Process.
Parent has the right to revise this pricing at anytime. Any such revision or
change will be binding and effective immediately on posting of the revision in
the Reseller Control Panel or on the Parent Website or on notification to the
Reseller via email to the Reseller.
(3) Reseller acknowledges that it is
the Reseller's responsibility to keep records and maintain reminders regarding
the expiry of any Order. As a convenience to the Reseller, and not as a binding
commitment, we may notify the Reseller of any expiring Orders, via an email
message sent to the contact information associated with the Reseller in the
Nabtech database. Should renewal fees go unpaid for an Order, the Order will
expire.
Reseller also acknowledges that it is the Reseller's
responsibility to keep a track of the Available Balance under his Reseller
Account. As a convenience to the Reseller, and not as a binding commitment, we
may notify the Reseller of low Available Balance, via an email message sent to
the contact information associated with the Reseller in the Nabtech database.
(4) Reseller acknowledges that after expiration of the term of an
Order, Reseller has no rights on such Order, or any information associated with
such Order, and that ownership of such Order now passes on to Parent. Parent and
Service Providers may make any modifications to said Order or any information
associated with said Order. Parent and Service Providers may intercept any
network/communication requests to such Order and process them in any manner in
their sole discretion. Parent and Service Providers may choose to monetize such
requests in any fashion at their sole discretion. Parent and Service Providers
may choose to display any appropriate message, and/or send any response to any
user making a network/communication request, for or concerning said Order.
Parent and Service Providers may choose to delete said Order at any time after
expiry upon their sole discretion. Parent and Service Providers may choose to
transfer the ownership of the Order to any third party in their sole discretion.
Reseller acknowledges that Parent and Service Providers shall not liable to
Reseller or any third party for any action performed under this clause.
(5) Parent at its sole discretion may allow the renewal of the Order after Order
expiry, and such renewal term will start as on the date of expiry of the Order,
unless otherwise specified. Such process may be charged separately. Such renewal
after the expiry of the Order may not result in exact reinstatement of the Order
in the same form as it was prior to expiry.
(6) Parent makes no
guarantees about the number of days, after deletion of an Order, after which the
same Order will once again become available for purchase.
10. LIMITATION
OF LIABILITY
IN NO EVENT WILL PARENT, SERVICE PROVIDERS, OR CONTRACTORS
OR THIRD PARTY BENEFICIARIES BE LIABLE TO THE RESELLER FOR ANY SPECIAL,
INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, EVEN IF PARENT AND/OR SERVICE PROVIDERS, OR CONTRACTORS OR
THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PARENT FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT
NOT LIMITED TO:
(1) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE
OR MISUSE OF AUTHENTICATION INFORMATION;
(2) LOSS OR LIABILITY RESULTING
FROM FORCE MAJEURE EVENTS;
(3) LOSS OR LIABILITY RESULTING FROM ACCESS
DELAYS OR ACCESS INTERRUPTIONS;
(4) LOSS OR LIABILITY RESULTING FROM
NON-DELIVERY OF DATA OR DATA MISS-DELIVERY;
(5) LOSS OR LIABILITY
RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR
PARENT PRODUCT(S) PROVIDED UNDER THIS AGREEMENT;
(6) LOSS OR LIABILITY
RESULTING FROM THE INTERRUPTION OF SERVICE.
If any legal action or other
legal proceeding (including arbitration) relating to the performance under this
Agreement or the enforcement of any provision of this Agreement is brought
against Parent by the Reseller, then in no event will the liability of Parent
exceed actual amount paid by the Reseller for the Order in question minus direct
expenses incurred with respect to the Order in question.
BOTH PARTIES
ACKNOWLEDGE THAT THE CONSIDERATION AGREED UPON BY THE PARTIES IS BASED IN PART
UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL THE LIABILITY
OF THE PARENT RELATING TO THIS AGREEMENT EXCEED TOTAL AMOUNT PAID TO PARENT BY
THE RESELLER DURING THE MOST RECENT THREE (3) MONTH PERIOD PRECEDING THE EVENTS
GIVING RISE TO SUCH LIABILITY.
11. INDEMNIFICATION
(1) The
Reseller, at its own expense, will indemnify, defend and hold harmless, Parent,
Service Providers and the contractors, employees, directors, officers,
representatives, agents and affiliates, of Parent and Service Providers against
any claim, suit, action, or other proceeding brought against Parent and/or
Service Providers based on or arising from any claim or alleged claim, of third
parties relating to or arising under this Agreement, Parent Products provided
hereunder or use of the Parent Products, including without limitation:-
(1) arising out of any breach by the Reseller of this Agreement
(2)
relating to any product or service of the Reseller, Sub-Resellers, Lower Tier
Sub-Resellers;
(3) relating to any actions of the Reseller, or the
Reseller's employees, contractees, agents, Customers, Sub-Resellers, Lower Tier
Sub-Resellers or any other party affiliated with the Reseller directly or
indirectly;
(4) relating to any agreement and Terms and Conditions with
any Customer of the Reseller, Sub-Resellers, Lower Tier Sub-Resellers;
(5) relating to the Reseller's, Sub-Resellers, or Lower Tier Sub-Resellers
Business, including, but not limited to, the advertising, application process,
systems and other processes, fees charged, billing practices and customer
services provided
(6) relating to or arising out of any Order or use of
any Order
(7) relating to any action of Parent as permitted by this
Agreement
(8) relating to any action of Parent carried out on behalf of
Reseller as described in this Agreement
However, that in any such case
Parent may serve the Reseller with notice of any such claim and upon the
Reseller's written request, Parent will provide to the Reseller all available
information and assistance reasonably necessary for the Reseller to defend such
claim, provided that the Reseller reimburses Parent for its actual costs.
(2) The Reseller will not enter into any settlement or compromise of any
such indemnifiable claim without Parent's prior written consent, which shall not
be unreasonably withheld.
(3) The Reseller will pay any and all costs,
damages, and expenses, including, but not limited to, actual attorneys' fees and
costs awarded against or otherwise incurred by Parent in connection with or
arising from any such indemnifiable claim, suit, action or proceeding.
12. INTELLECTUAL PROPERTY & EMPLOYMENT
Subject to the provisions of this
Agreement, each Party will continue to independently own his/her/its
intellectual property, including all patents, trademarks, trade names, domain
names, service marks, copyrights, trade secrets, proprietary processes and all
other forms of intellectual property. Any improvements to existing intellectual
property will continue to be owned by the Party already holding such
intellectual property.
Reseller is prohibited from displaying the ICANN
or ICANN-Accredited Registrar logo, or from otherwise representing itself as
accredited by ICANN unless it has written permission from ICANN to do so.
Without limiting the generality of the foregoing, no commercial use rights
or any licenses under any patent, patent application, copyright, trademark,
know-how, trade secret, or any other intellectual proprietary rights are granted
by Parent to the Reseller, or by any disclosure of any Confidential Information
to the Reseller under this Agreement.
Reseller shall further ensure
Reseller does not infringe any intellectual property rights or other rights of
any person or entity, or does not publish any content that is libelous or
illegal while using services under this Agreement. Reseller acknowledges that
Parent cannot and does not check to see whether any services or the use of the
services by the Reseller under this Agreement, infringes legal rights of others.
Reseller acknowledges that
(1) Reseller and its subsidiaries;
(2) and shareholders, employees, directors, officers, agents, contractors, of
Reseller and its subsidiaries
(3) and any entity/company that Reseller or
its subsidiaries or shareholders, employees, directors, officers, agents,
contractors, of Reseller and its subsidiaries have invested in or have any form
of interest or control in, or work for, or contract with,
shall not,
directly or indirectly, knowingly or unknowingly, employ, make, or seek to make
any offer of employment to Parent staff during the term of this Agreement and
for a period of twelve (12) months following termination of same.
13.
OWNERSHIP AND USE OF DATA
(1) Reseller agrees and acknowledges that
Parent owns all data, compilation, collective and similar rights, title and
interests worldwide in the Nabtech Database, and all information and derivative
works generated from the Nabtech Database.
(2) Parent and Service
Providers and their designees/agents have the right to backup, copy, publish,
disclose, use, sell, modify, process this data in any form and manner as maybe
required for compliance of any agreements executed by Parent or Service
Providers, or in order to fulfill services under this Agreement, or for any
other appropriate reason.
14. DELAYS OR OMISSIONS; WAIVERS
No
failure on the part of any Party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any Party in exercising
any power, right, privilege or remedy under this Agreement, shall operate as a
waiver of such power, right, privilege or remedy; and no single or partial
exercise or waiver of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
No Party shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
Party; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
No waiver of any of the
provisions of this Agreement shall be deemed to constitute a waiver of any other
provision (whether or not similar), nor shall such waiver constitute a waiver or
continuing waiver unless otherwise expressly provided in writing duly executed
and delivered.
15. RIGHT TO SUBSTITUTE UPDATED AGREEMENT AND RESELLER
PRODUCT AGREEMENT EXTENSIONS
(1) During the period of this Agreement,
Reseller agrees that Parent may:-
(1) revise the terms and conditions of;
and
(2) change the services provided under this Agreement, or any
Reseller Product Agreement Extension.
(2) Any such revision or change
will be binding and effective immediately on posting of the revision in the
Reseller Control Panel or on the Parent Website or on notification to the
Reseller via email.
(3) The Reseller agrees to review the Reseller
Control Panel and the Parent Website including the agreements, periodically, to
be aware of any such revisions
(4) If the Reseller does not agree with
any revision, the Reseller may terminate the Agreement or Reseller Product
Agreement Extension according to Section 8(3) of this Agreement
(5)
Reseller agrees that, continuing use of the services under this Agreement or the
Reseller Product Agreement Extension following notice of any revision, will
constitute as an acceptance of any such revisions or changes
(6) The
Reseller shall execute, if required by Parent, in a form and manner prescribed
by Parent, a supplementary agreement incorporating the amendments to or
revisions of the Agreement and/or Reseller Product Agreement Extension
(7) It will be the Reseller's responsibility to communicate any changes in the
agreement and any obligations/duties covered by these changes to the Reseller's
Agents / Authorized Representatives.
16. CONFIDENTIALITY
All
Confidential Information shall be governed by the Confidentiality Agreement as
attached in Appendix 'B'.
17. PUBLICITY
The Reseller shall not
create, publish, distribute, or permit any written / Oral / electronic material
that makes reference to the Parent or its Service Providers or uses any of
Parent's registered Trademarks / Service Marks or its Service Providers'
registered Trademarks / Service Marks without first submitting such material to
the Parent and receiving prior written consent.
The Reseller gives Parent
the right to recommend / suggest the Reseller's name and details to Customers /
Visitors to the Parent Website, and Prospective Customers and use the Resellers
name in marketing / promotional material with regards to Parent Products.
18. TAXES
The Reseller shall be responsible for sales tax,
consumption tax, transfer duty, custom duty, octroi duty, excise duty, income
tax, and all other taxes and duties, whether international, national, state or
local, however designated, which are levied or imposed or may be levied or
imposed, with respect to this Agreement and the Parent Products.
19.
FORCE MAJEURE
Neither party shall be liable to the other for any loss or
damage resulting from any cause beyond its reasonable control (a "Force Majeure
Event") including, but not limited to, insurrection or civil disorder, riot, war
or military operations, national or local emergency, acts or directives or
omissions of government or other competent authority, compliance with any
statutory obligation or executive order, strike, lock-out, work stoppage,
industrial disputes of any kind (whether or not involving either party's
employees), any Act of God, fire, lightning, explosion, flood, earthquake,
eruption of volcano, storm, subsidence, weather of exceptional severity,
equipment or facilities breakages / shortages which are being experienced by
providers of telecommunications services generally, or other similar force
beyond such Party's reasonable control, and acts or omissions of persons for
whom neither party is responsible. Upon occurrence of a Force Majeure Event and
to the extent such occurrence interferes with either party's performance of this
Agreement, such party shall be excused from performance of its obligations
(other than payment obligations) during the first three months of such
interference, provided that such party uses best efforts to avoid or remove such
causes of non performance as soon as possible.
20. ASSIGNMENT /
SUBLICENSE
Except as otherwise expressly provided herein, the provisions
of this Agreement shall inure to the benefit of and be binding upon, the
successors and assignees of the Parties. The Reseller shall not assign,
sublicense or transfer its rights or obligations under this Agreement to any
third person(s)/party without the prior written consent of the Parent.
21. DISCLAIMER
THE Nabtech, PARENT SERVERS AND ANY OTHER SOFTWARE / API
/ SPECIFICATION / DOCUMENTATION / APPLICATION SERVICES IS PROVIDED ON "AS IS"
AND "WHERE IS" BASIS AND WITHOUT ANY WARRANTY OF ANY KIND.
PARENT AND
SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND / OR CONDITIONS, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS
OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT OF THIRD PARTY RIGHTS AND QUALITY/AVAILABILITY OF TECHNICAL
SUPPORT.
PARENT AND SERVICE PROVIDERS ASSUME NO RESPONSIBILITY AND SHALL
NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER
EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH YOUR ACCESS TO, USE OF, Nabtech
OR BY ACCESSING PARENT SERVERS. WITHOUT LIMITING THE FOREGOING, PARENT AND
SERVICE PROVIDERS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) ANY
INFORMATION/DATA/DOWNLOAD AVAILABLE ON OR THROUGH Nabtech OR PARENT SERVERS
WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE
MANIFESTING DESTRUCTIVE PROPERTIES; OR (B) THE INFORMATION AVAILABLE ON OR
THROUGH THE Nabtech/PARENT SERVERS WILL NOT CONTAIN ADULT-ORIENTED MATERIAL OR
MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR (C) THE FUNCTIONS OR
SERVICES PERFORMED BY PARENT AND SERVICE PROVIDERS WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE Nabtech WILL BE CORRECTED;
OR (D) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR (E) THE
SERVICES PROVIDED UNDER THIS AGREEMENT OPERATE IN COMBINATION WITH ANY SPECIFIC
HARDWARE, SOFTWARE, SYSTEM OR DATA. OR (F) YOU WILL RECEIVE NOTIFICATIONS,
REMINDERS OR ALERTS FOR ANY EVENTS FROM THE SYSTEM INCLUDING BUT NOT LIMITED TO
ANY MODIFICATION TO YOUR ORDER, ANY TRANSACTION IN YOUR ACCOUNT, ANY EXPIRY OF
AN ORDER
PARENT AND SERVICE PROVIDERS MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE SUITABILITY OF THE INFORMATION, CONTENT, DATA, SERVICES,
AVAILABLE OR WITH RESPECT TO THEIR LEGITIMACY, LEGALITY, VALIDITY, QUALITY,
STABILITY, COMPLETENESS, ACCURACY OR RELIABILITY. PARENT AND SERVICE PROVIDERS
DO NOT ENDORSE, VERIFY OR OTHERWISE CERTIFY THE CONTENT OF ANY SUCH INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES, SO THE
FOREGOING EXCLUSIONS, AS TO IMPLIED WARRANTIES, MAY NOT APPLY TO YOU.
FURTHERMORE, PARENT NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE
USE OR THE RESULTS OF THE Nabtech, Nabtech SERVERS, PARENT WEBSITE AND ANY
OTHER SOFTWARE / API / SPECIFICATION / DOCUMENTATION / APPLICATION SERVICES IN
TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
22.
ARBITRATION
Any Dispute, including any question regarding the existence,
validity or termination of the Agreement, shall be referred to and finally
resolved by arbitration.
23. JURISDICTION & ATTORNEY'S FEES
This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the Country, State and City where Parent is incorporated, applicable
therein without reference to rules governing choice of laws. Any action relating
to this Agreement must be brought in a court in the city, state, country where
Parent is incorporated. Parent reserves the right to enforce the law in the
Country/State/District where the Registered/Corporate/Branch Office, or Place of
Management of the Reseller is situated as per the laws of that
Country/State/District.
If any legal action or other legal proceeding
relating to the performance under this Agreement or the enforcement of any
provision of this Agreement is brought against either Party hereto, the
prevailing Party shall be entitled to recover reasonable attorneys' fees, costs
and disbursements (in addition to any other relief to which the prevailing Party
may be entitled).
24. MISCELLANEOUS
(1) Any reference in this
Agreement to gender shall include all genders, and words importing the singular
number only shall include the plural and vice versa.
(2) There are no
representations, warranties, conditions or other agreements, express or implied,
statutory or otherwise, between the Parties in connection with the subject
matter of this Agreement, except as specifically set forth herein.
(3)
The Parties shall attempt to resolve any disputes between them prior to
resorting to litigation through mutual understanding or a mutually acceptable
Arbitrator.
(4) Survival: In the event of termination of this Agreement
for any reason, Sections 1, 4, 6, 8(5), 8(6), 8(7), 8(8), 9, 10, 11, 12, 13, 14,
16, 17, 18, 21, 22, 23, 24(3), 24(4), 24(6), 24(10), 25(2) and all Sections of
Appendix A, and all Sections of Appendix B, and Sections 1(5), 1(6), 1(7), 2(5),
3, 4 of Appendix C and any Sections covered separately under a Survival clause
in any Reseller Product Agreement Extension shall survive.
(5) This
Agreement does not provide and shall not be construed to provide third parties
(i.e. non-parties to this Agreement), including any Sub-Reseller, Lower Tier
Sub-Reseller Agent, Customer, and Prospective Customer with any remedy, claim,
and cause of action or privilege against Parent.
(6) The Reseller and
Parent and its Service Providers are independent contractors, and nothing in
this Agreement will create any partnership, joint venture, agency, franchise,
and sales representative or employment relationship between the parties.
Reseller will have no authority to make or accept any offers or representations
on our, or our Service Providers', behalf. Reseller will not make any statement,
whether on his Website or otherwise, that reasonably would contradict anything
in this Agreement.
(7) Further Assurances: Each Party hereto shall
execute and/or cause to be delivered to the other Party hereto such instruments
and other documents, and shall take such other actions, as such other Party may
reasonably request for the purpose of carrying out or evidencing any of the
transactions contemplated / carried out, by / as a result of, this Agreement.
(8) Construction: The Parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall not
be applied in the construction or interpretation of this Agreement.
(9)
Entire Agreement; Severability: This Agreement, which includes Appendix A,
Appendix B, Appendix C and each executed Reseller Product Agreement Extension
constitutes the entire agreement between the Parties concerning the subject
matter hereof and supersedes any prior agreements, representations, statements,
negotiations, understandings, proposals or undertakings, oral or written, with
respect to the subject matter expressly set forth herein. If any provision of
this Agreement shall be held to be illegal, invalid or unenforceable, each Party
agrees that such provision shall be enforced to the maximum extent permissible
so as to effect the intent of the Parties, and the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby. If necessary to effect the intent of the
Parties, the Parties shall negotiate in good faith to amend this Agreement to
replace the unenforceable language with enforceable language that reflects such
intent as closely as possible.
(10) The division of this Agreement into
Sections, Subsections, Appendices, Extensions and other Subdivisions and the
insertion of headings are for convenience of reference only and shall not affect
or be used in the construction or interpretation of this Agreement.
(11)
This agreement may be executed in counterparts.
(12) Language. All
notices, designations, and specifications made under this Agreement shall be
made in the English Language only.
(13) Dates and Times. All dates and
times relevant to this Agreement or its performance shall be computed based on
the date and time observed in the city of the Registered office of the Parent
25. BREACH
In the event that Parent suspects breach of any of the
terms and conditions of this Agreement:
(1) Parent can immediately,
without any notification and without assigning any reasons, suspend / terminate
Nabtech Users' access to all Parent Products and Services and the Nabtech.
(2) Reseller will be immediately liable for any damages caused by any breach
of any of the terms and conditions of this Agreement.
26. NOTICE
(1) Any notice or other communication required or permitted to be delivered to
Parent under this Agreement shall be in writing unless otherwise specified and
shall be deemed properly delivered when delivered to the legal contact address
specified in the Reseller Control Panel or on the Parent Website, by registered
mail or courier. Any communication shall be deemed to have been validly and
effectively given, on the date of receiving such communication, if such date is
a Business Day and such delivery was made prior to 17:30 hours local time, and
otherwise on the next Business Day.
(2) Any notice or other communication
to be delivered to Parent via email under this agreement shall be deemed to have
been properly delivered if sent to its Legal Contact mentioned in the Reseller
Control Panel or on the Parent Website.
(3) Any notice or other
communication required or permitted to be delivered to the Reseller under this
Agreement shall be deemed properly delivered, given and received when delivered
to email address or contact address of the Reseller in the Nabtech Database.
(4) Other than those notices mentioned in this agreement, Parent is NOT
required to communicate with the Reseller in any respect about services provided
under this agreement. As a convenience to the Reseller, Parent may proactively
send notices about aspects with regards to services rendered under this
Agreement, however these notices may be discontinued by Parent at anytime.
APPENDIX 'A'
TERMS AND CONDITIONS OF Nabtech USAGE
This Appendix
A covers the terms of access to the Nabtech. Any violation of these terms will
constitute a breach of agreement, and grounds for immediate termination of this
Agreement.
1. ACCESS TO Nabtech
(1) Parent may in its ABSOLUTE
and UNFETTERED SOLE DISCRETION, temporarily suspend Nabtech Users' access to
the Nabtech in the event of significant degradation of the Nabtech, or at any
time Parent may deem necessary.
(2) Parent may in its ABSOLUTE and
UNFETTERED SOLE DISCRETION make modifications to the Nabtech from time to time.
(3) Access to the Nabtech is controlled by authentication information
provided by Parent. Parent is not responsible for any action in the Nabtech
that takes place using this authentication information whether authorized or
not.
(4) Parent is not responsible for any action in the Nabtech by a
Nabtech User
(5) Nabtech User will not attempt to hack, crack, gain
unauthorized access, misuse or engage in any practice that may hamper operations
of the Nabtech including, without Limitation temporary / permanent slow down of
the Nabtech, damage to data, software, operating system, applications, hardware
components, network connectivity or any other hardware / software that
constitute the Nabtech and architecture needed to continue operation thereof.
(6) Nabtech User will not send or cause the sending of repeated
unreasonable network requests to the Nabtech or establish repeated unreasonable
connections to the Nabtech. Parent will in its ABSOLUTE and UNFETTERED SOLE
DISCRETION decide what constitutes as a reasonable number of requests or
connections.
(7) Nabtech User will take reasonable measures and
precautions to ensure secrecy of authentication information.
(8) Nabtech
User will take reasonable precautions to protect Nabtech Data from misuse,
unauthorized access or disclosure, alteration, or destruction.
(9) Parent
shall not be responsible for damage caused due to the compromise of your
Authentication information in any manner OR any authorized/unauthorized use of
the Authentication Information.
(10) Parent shall not be liable for any
damages due to downtime or interruption of Nabtech for any duration and any
cause whatsoever.
(11) Parent shall have the right to temporarily or
permanently suspend access of a Nabtech User to the Nabtech if Parent in its
ABSOLUTE and UNFETTERED SOLE DISCRETION suspects misuse of the access to the
Nabtech, or learns of any possible misuse that has occurred, or will occur with
respect to a Nabtech User.
(12) Parent and Service Providers reserve the
right to, in their sole discretion, reject any request, network connection,
e-mail, or message, to, or passing through, Nabtech
2. Terms of USAGE OF
Nabtech
(1) Reseller, or its contractors, employees, directors,
officers, representatives, agents and affiliates and Nabtech Users, either
directly or indirectly, shall not use or permit use of the Nabtech, directly or
indirectly, in violation of any country, state or local rule, regulation or law,
or for any unlawful purpose, or in a manner injurious to Parent, Service
Providers or other Resellers, Customers and Nabtech Users, or their reputation,
including but not limited to the following activities -
(1) Usenet spam
(off-topic, bulk posting/cross-posting, advertising in non-commercial
newsgroups, etc.)
(2) Posting a single article or substantially similar
articles to an excessive number of newsgroups (i.e., more than 2-3) or posting
of articles which are off-topic (i.e., off-topic according to the newsgroup
charter or the article provokes complaints from the readers of the newsgroup for
being off-topic)
(3) Sending unsolicited mass e-mails (i.e., to more than
10 individuals, generally referred to as spamming) which provokes complaints
from any of the recipients; or engaging in spamming from any provider
(4)
Offering for sale or otherwise enabling access to software products that
facilitate the sending of unsolicited e-mail or facilitate the assembling of
multiple e-mail addresses ("spamware")
(5) Advertising, transmitting,
linking to, or otherwise making available any software, program, product, or
service that is designed to violate these terms, including but not limited to
the facilitation of the means to spam, initiation of pinging, flooding,
mailbombing, denial of service attacks, and piracy of software
(6)
Harassment of other individuals utilizing the Internet after being asked to stop
by those individuals, a court, a law-enforcement agency and/or Parent
(7)
Impersonating another user or entity or an existing company/user/service or
otherwise falsifying one's identity for fraudulent purposes in e-mail, Usenet
postings, on IRC, or with any other Internet service, or for the purpose of
directing traffic of said user or entity elsewhere
(8) Pointing to or
otherwise directing traffic to, directly or indirectly, any material that, in
the sole opinion of Parent, is associated with spamming, bulk e-mail, e-mail
harvesting, warez (or links to such material), is in violation of copyright law,
or contains material judged, in the sole opinion of Parent, to be threatening or
obscene or inappropriate
(9) Engaging in or solicit illegal activities,
or to conduct any other activity that infringes the rights of Parent, Service
Providers or any other third party
(10) Making foul or profane
expressions, or impersonating another person with fraudulent or malicious
intent, or to annoy, abuse, threaten, or harass that person
(11)
Transmitting Unsolicited Commercial e-mail (UCE)
(12) Transmitting bulk
e-mail
(13) Being listed, or, in our sole opinion is about to be listed,
in any Spam Blacklist or DNS Blacklist
(14) Posting bulk Usenet/newsgroup
articles
(15) Denial of Service attacks of any kind
(16) Excessive
use of any web service obtained under this agreement beyond reasonable limits as
determined by the Parent in its sole discretion
(17) Copyright or
trademark infringement
(18) Unlawful or illegal activities of any kind
(19) Promoting net abuse in any manner (providing software, tools or
information which enables, facilitates or otherwise supports net abuse)
(20) Causing lossage or creating service degradation for other users whether
intentional or inadvertent.
(21) Distributing chain letters
(22)
Sending large or multiple files or messages to a single recipient with malicious
intent
(23) Cross-posting articles to an excessive number of, or
inappropriate, newsgroups, forums, mailing lists or websites
(24)
Phishing (identity theft), pharming, distribution of virus or malware, child
pornography, Fast Flux techniques, running Botnet command and control, network
attacks, money laundering schemes (Ponzi, Pyramid, Money Mule, etc.), or illegal
distribution of prescription medications, including, but not limited to,
promotion, marketing, or sale of prescription medications without a valid
prescription (25) Referencing an Nabtech provided service or an Order within a
spam email
(26) Hosting, transmitting, providing, publishing, or storing
illegal content, including but not limited to the following material,
information, messages, data or images:
(1) libelous or defamatory content
(2) content that violates any privacy right
(3) content which
threatens physical harm or property damage
(4) content which is obscene,
pornographic, salacious, explicitly erotic or offensive
(5) content that
violates applicable intellectual property laws or regulations, including but not
limited to, the transmission of copyrighted material or trade secrets and the
infringement of patents and trademarks
(6) content which violates any
export, re-export or import laws and regulations of any jurisdiction
(7)
hacker programs or archives, "warez", passwords or "cracks"
(8) internet
relay chat servers ("IRCs") IRC bots
(9) any content which Parent in its
sole discretion determines as illegal, unlawful, or otherwise inappropriate
(2) Parent in its sole discretion will determine what constitutes as
violation of appropriate usage including but not limited to all of the above.
(3) Data in the Nabtech Database cannot be used for any purpose other than
those listed below, except if explicit written permission has been obtained from
Parent:-
(1) To perform services contemplated under this agreement; and
(2) To communicate with the Sub-Reseller, Lower Tier Sub-Reseller or
Customer of an Order with respect to the Order, Support thereof, or any other
matter pertaining to Parent or its services
(4) Data in the Nabtech
Database cannot specifically be used for any purpose listed below :-
(1)
Mass Mailing or SPAM; and
(2) Selling the data
APPENDIX 'B'
CONFIDENTIALITY
The Resellers use and disclosure of Confidential
Information disclosed hereunder are subject to the following terms and
conditions:-
(1) With respect to the Confidential Information, the
Reseller agrees that:
(1) The Reseller shall treat as strictly
confidential, and use all reasonable efforts, including implementing reasonable
physical security measures and operating procedures, to preserve the secrecy and
confidentiality of, all Confidential Information received from Parent.
(2) The Reseller shall make no disclosures whatsoever of any Confidential
Information to others, provided however, that if the Reseller is a corporation,
partnership, or similar entity, disclosure is permitted to the Reseller's
officers and employees who have a demonstrable need to know such Confidential
Information, provided the Reseller shall advise such personnel of the
confidential nature of the Confidential Information and of the procedures
required to maintain the confidentiality thereof; and
(3) The Reseller
shall not modify or remove any confidentiality legends and/or copyright notices
appearing on any Confidential Information of Parent.
(2) The obligations
set forth in this Appendix shall be continuing, provided, however, that this
Appendix imposes no obligation upon the Reseller with respect to information
that:
(1) is disclosed with Parent's prior written approval; or
(2) is or has entered the public domain in its integrated and aggregated form
through no fault of the receiving party; or
(3) is known by the Reseller
prior to the time of disclosure in its integrated and aggregated form; or
(4) is independently developed by the Reseller without use of the
Confidential Information; or
(5) is made generally available by Parent
without restriction on disclosure.
(3) In the event the Reseller is
required by law, regulation or court order to disclose any of Parent's
Confidential Information, the Reseller will promptly notify Parent in writing
prior to making any such disclosure in order to facilitate Parent seeking a
protective order or other appropriate remedy from the proper authority, at the
Reseller's expense. Reseller agrees to cooperate with Parent in seeking such
order or other remedy. Reseller further agrees that if Parent is not successful
in precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required.
(4) In the event of any
termination of this Agreement, all Confidential Information, including all
copies, partial copies of Confidential Information, copied portions contained in
derivative works, in the Reseller's possession shall be immediately returned to
Parent or destroyed. Within 30 (Thirty) days of termination of this Agreement,
the Reseller will certify in writing of the Agreement, to Parent Reseller's
compliance with this provision.
(5) In the event of any termination of
any Reseller Product Agreement Extensions, all Confidential Information,
including all copies, partial copies of Confidential Information, copied
portions contained in derivative works, pertaining to that Parent Product and
the Reseller Product Agreement Extension in the Reseller's possession shall be
immediately returned to Parent or destroyed. Within 30 (Thirty) days of
termination of the Reseller Product Agreement Extension, the Reseller will
certify in writing, to Parent, Reseller's compliance with this provision.
(6) The Reseller shall provide full voluntary disclosure to Parent of any
and all unauthorized disclosures and/or unauthorized uses of any Confidential
Information; and the obligations of this Appendix shall survive such termination
and remain in full force and effect.
(7) The Resellers duties under this
Appendix shall expire five (5) years after the information is received or
earlier, upon written agreement of the parties.
(8) The Reseller agrees
that Parent shall be entitled to seek all available legal and equitable remedies
for the breach by the Reseller of all of these clauses in Appendix 'B' -
CONFIDENTIALITY at the cost of the Reseller.
APPENDIX 'C'
PAYMENT
TERMS AND CONDITIONS
1. ADVANCE ACCOUNT
(1) Prior to purchasing
any Parent Products, the Reseller shall maintain an Advance Account with Parent.
(2) As and when, the Reseller purchases Parent Products, the Reseller's
Advance Account balance shall be reduced as per the then current pricing of that
Parent Product as mentioned in the Reseller Control Panel or on the Parent
Website or during the ordering process.
(3) Parent shall maintain a
record of Reseller's Advance Account balance, which shall be accessible by the
Reseller. If the Reseller's Advance Account balance is insufficient for
processing any Order then that Order shall not be processed.
(4) The
Advance Account will maintain the Reseller Credit in both the Accounting
Currency and Selling Currency of the Parent's choice. Parent has the right to
modify the currency at anytime.
(5) Any negative balance in the
Reseller's Advance Account will be immediately payable. If a Reseller does not
remedy a negative balance in their account within 24 hours, Parent has the right
to terminate this agreement with immediate effect and without any notice. Upon
such termination or otherwise Parent shall continue to have the right to
initiate any legal proceedings against the Reseller to recover any negative
balance in the Reseller's Advance Account.
(6) Parent shall have the
right to set-off any payment received from the Reseller, or Sub-Reseller, or
Lower Tier Sub-Reseller, or Customer against any negative balance in the
Reseller's Advance Account.
(7) Any discrepancy, mistake, error in the
credit / debit / amount in the Reseller Transactions / Advance Account maybe
corrected by Parent at anytime
2. PAYMENT TERMS
(1) Parent will
accept payments from the Reseller only by means specified in the Reseller
Control Panel
(2) Parent will credit all payments received to the
Resellers Advance Account after deducting all bank charges, processing charges
and any other charges which Parent may choose to levy upon its sole discretion,
within reasonable time of receiving the credit in Parent's Account. The exchange
rate will be determined by Parent through a reasonable source. The exchange rate
determined by Parent shall be undisputable.
(3) A processing charge will
be deducted on all Credit Card Transactions. This processing charge will be at
the discretion of Parent, and will be mentioned in the Reseller Control Panel or
on the Parent Website.
(4) It is the Reseller's responsibility to provide
the Reseller Username to Parent to be credited for the payment. The absence of
the Reseller Username along with reasonable information will delay the
corresponding credit to the Advance Account.
(5) In the event that the
Reseller charges back a payment made via Credit Card or the payment instrument
sent by the Reseller bounces due to Lack of Funds or any other Reason, then
(4) Parent may immediately suspend Nabtech Users' access to the Nabtech
(5) Parent has the right to terminate this agreement with immediate effect
and without any notice.
(6) Parent in its ABSOLUTE and UNFETTERED SOLE
DISCRETION may delete, suspend, deny, cancel, modify, take ownership of or
transfer any or all of the Orders placed by the Reseller, or Sub-Resellers or
Lower Tier Sub-Resellers or Customers as well as stop / suspend / delete /
transfer any Orders currently being processed.
(7) Parent in its ABSOLUTE
and UNFETTERED SOLE DISCRETION may Transfer all Orders placed by the
Sub-Resellers or Lower Tier Sub-Resellers or Customers of the Reseller to any
other Reseller, or under Parent's account.
(8) Parent in its ABSOLUTE and
UNFETTERED SOLE DISCRETION may levy reasonable additional charges for the
processing of the Charge-back / Payment Reversal in addition to actual costs of
the same.
(9) Any negative balance in the Resellers Advance Account shall
become immediately payable
(10) Parent shall have the right to initiate
any legal proceedings against the Reseller to recover any such liabilities.
3. PRICING TERMS
(1) All pricing in this Agreement as well as every
Reseller Product Agreement Extension refers to the price at which the Reseller
may Purchase the corresponding Parent Product. This is excluding taxes,
surcharges or any other costs.
(2) Parent may at any time change the
price of any Parent Product with immediate effect. Notification will be provided
to the Reseller before the price change.
4. REFUNDS AND REIMBURSEMENT
TERMS
(1) All Clear Balance pending in the Advance Account maybe refunded
to the Reseller, on request of the Reseller unless otherwise indicated,
including without limitation, if Reseller has violated the OFAC Provision in
Section 4 or if Reseller has violated any other term of this Agreement. Such
request must be sent to Parent in the manner prescribed by Parent.
(2)
All bank charges applicable and a reasonable processing fee will be deducted
from this amount. All Refunds and Reimbursements will take up to 14 Business
Days from the date of receipt of the request, to process.
(3) Parent will
not be responsible for any differences in the reimbursement amount due to
Fluctuation in International Currency rates. Parent will determine in its sole
discretion appropriate conversion rates for currency exchange
(4) Parent
will not refund any amount that has already been debited to the Resellers
Advance Account under any circumstances.
APPENDIX 'D'
TLD SPECIFIC
CONDITIONS
1. .UK SPECIFIC CONDITIONS
(1) The Reseller
understands that they have to make aware .uk registrants about the of the Terms
and Conditions of Domain Name Registration available from our website at
http://www.nominet.org.uk/go/terms.
(2) Reseller shall publish their
complaint handling process, average complaint response time and abuse contact
details on their domain registration website under either Support or Contact Us
page.
APPENDIX 'E'
Nabtech RENEWAL REMINDER MAIL OPT OUT CONDITIONS
Reseller can avail the option of opting out of the default system renewal
reminder mails by signing 'ERRP Opt Out Form' provided by the Parent. This is a
privileged service offered by the Parent based on the Resellers requirement and
their business policies. Reseller understands that :
(1) Parent reserves
the right to decide if the Reseller is meeting the ERRP opt out requirements set
by the Parent. For the purpose of this Agreement, ERRP shall mean the expired
registration recovery policy published by the ICANN (the "ICANN ERRP"), and as
amended from time to time.
(2) Reseller acknowledges that they have read
ICANN ERRP policy and shall read any amendment thereof as displayed at
https://www.icann.org/resources/pages/errp-2013-02-28-en to understand the
requirements set by ICANN and the renewal reminder mail schedule.
(3)
Reseller acknowledges that they are agreeing to all the terms and conditions set
by ERRP opt out form, as published by the Parent, from time to time.
(4)
Reseller understands that by opting out of the renewal reminder mails they are
taking upon themselves, full responsibility of sending renewal reminder mails
for all the domain name owners registered with such Reseller directly and/or the
domain name owners registered with the Sub-Reseller.
(5) Reseller
acknowledges that after choosing ERRP opt out option they can no longer hold the
Nabtech control panel accountable for not sending renewal reminder emails and
the Reseller acknowledges that the Parent shall not be responsible for sending
renewal reminder emails for any domain name registered with the Reseller or the
Sub-Reseller, as the context may arise.
(6) Reseller agrees to blind
carbon copy/BCC all renewal reminder mails sent by them to the Parent's email
viz "errp@nabtech.co".
(7) Reseller understands that the Parent
reserves the right to reinstate the renewal reminder mail service if the
Reseller is found to be in violation of any term of this Agreement or the ICANN
ERRP.