Reseller Agreement
As of July 5, 2018
We look forward to doing business with you. To establish our business relationship, we have created this Reseller Agreement. This Reseller Agreement is between Hostirian and the individual or entity whose application form we accept (you or your). The “Effective Date” of this Reseller Agreement is the date we notify you that we have accepted your reseller application form. Our Terms of Service and Privacy Policy apply to you through this Reseller Agreement and are incorporated into it. By submitting the reseller application form, you represent and warrant to us that you have read these agreements, and agree to be bound by them.
1. Relationships
1.1 This Reseller Agreement is between HOSTIRIAN and you. We grant to you, a non-exclusive, non-transferable right to market and resell the Services set out on https://www.hostirian.com with third parties with whom you have contracts (End User).1.2 We have no relationship with an End You agree to indemnify and hold us fully harmless from any claims made against us by an End User based on the Services we provide.
1.3 This Reseller Agreement does not give you an exclusive, or any, Nor does it create an exclusive relationship with us. We may, and will, enter into other, and different reseller relationships with other entities on terms that may differ from these. Other companies, including we and our other resellers, can and will compete against you.
2. The Services
2.1 A list of the Services you may resell is determined solely by Hostirian. You may not represent your- self as authorized to sell any other items or services offered by Hostirian.2.2 We will provide the Services directly to End Users as an added value to those products provided by you. Our Services are subject to our Terms of Service and Privacy You agree that your contract with End Users will contain provisions similar to those agreements, and in no case less favorable to us. In particular, your limitation of liabilities, warranties and privacy policy, must be similar to the one we include in our Terms of Service and Privacy Policy. You agree to make your contract available to End Users prior to their entering into a contract with you.
2.3 The Services will be provided to your End Users in the same manner as we would provide the Services to the general public: other than set out herein, we will not treat End Users differently from customers who contract directly with us for the same Services you resell.
3. Your Obligations
3.1 You will use efforts to market the Services which exceed or are equivalent to those you use to market your own Services or those of other hosting companies. In particular, you will use commercially reasonable efforts to promote, solicit and obtain contracts to resell the Service, and to perform your contractual obligations in general.3.2 You will implement training and incentive programs to facilitate the sale of the Services which are equivalent to those you use for your own products or those of other hosting companies.
3.3 You agree to train your support personnel to provide support for the Services. In no event will this training be any less through than that which you provide to your own support End Users may not contact us directly to support the Services. You agree that we may terminate this Reseller Agreement, and create direct contract relationship with your End Users, should we determine that you are not providing adequate support to those End Users, once we have provided you with at least sixty days’ notice of that determination.
3.4 You may promote, distribute and market the Services using the trademarks, service marks or other designations that you deem appropriate. These marks may not infringe on, or denigrate, our marks. You may not use, or register, our trademarks or copyrighted material.
3.5 You will have sole responsibility for assuring compliance with the provisions of your contracts with End Users, and for otherwise reasonably protecting our rights in the Services, including, but not limited to, our right to be free from abuse or misconduct by End Users.
4. Term and Termination
4.1 The term of this Reseller Agreement shall begin on the Effective Date and continue for a period of one year, and continue thereafter from year-to-year unless one party provides written notice to the other of its intent to terminate.4.2 Either party can terminate this Reseller Agreement upon thirty days written notice.
4.3 This Reseller Agreement may be terminated by the either party upon written notice should: (i) there be the occurrence of a material breach which has not been cured within ten days of such notice, or which is not capable of cure; and/or (ii) you are acquired by one of our competitors.
4.4 Upon the date of the termination of this Reseller Agreement, you will immediately cease marketing the Services.
5. Prices
5.1 We will provide the Services to you based on the discounts we have established in our agreement with you. You will be placed in the Tier level for which you The discounts require an annual volume commitment. Should you fail to meet your volume commitment in a particular year, we reserve the right to place you in the Tier for which you would have qualified, adjust your discounts retroactively, and invoice you for the balance. You agree to pay any such invoice within ten business days from the date set out on the invoice. Once paid, all invoices are final. Should you fail to pay such an invoice, we reserve the right to contact the End Users and assume a direct contractual relationship with them.5.2 You will have the right to determine, at your sole discretion, the prices or fees that you charge for the Services you You are solely responsible for collecting all charges, including, but not limited to, applicable taxes, related to the Services, from End Users.
6. Acknowledgements
6.1 You acknowledge that you are bound by applicable provisions of our Terms of Service, including, but not limited to our warranty limitations and disclaimers of liability, as if they were set out in this Reseller Agreement.6.2 You acknowledge that the Services may not satisfy all of the End Users’ requirements. We have no obligation to you or End Users if the Services fail to meet your expectations for any reason.
6.3 We represent that we have the right to provide the Services to you and the End Users and to enter into this Reseller Agreement with you.
6.4 We are not an insurer. Insurance, if any, shall be obtained by you, or the End User. You will direct any End Users to rely on any insurance you or the End User has to recover for injuries or damage in the event of any loss, and agree to hold Hostirian fully harmless from any such claim.
6.5 We shall be able to rely, and take action based, on the information provided by you and End Users.
7. Any claims, warranties, promises or other representations about the Services must be yours alone. You may not make any warranties on our behalf.
8. Confidential and Proprietary
8.1 Each party may have access to certain non-public information of the other All such information, if in writing, shall be specifically and obviously marked as “confidential“ by the disclosing party at the time of disclosure, or if disclosed orally, shall be orally designated as confidential and thereafter identified as confidential by written notice to the receiving party within a reasonable time (“Confidential Information “). Our software code, business strategies, and method of providing its services are hereby deemed Confidential Information without any obligation to designate as such. Neither party will use for its own account or the account of any third party, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party ‘s attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party ‘s Confidential Information. The disclosing party retains all right, title and interest in all Confidential Information it discloses under this Agreement and all improvements and modifications made thereto. No license or other rights with respect to the Confidential Information is hereby granted or intended. Each party will use reasonable care, at least equivalent to the care used for its own similar Confidential Information, to protect the confidentiality of the disclosing party ‘s Confidential Information. Each party’s obligation under this section will survive for a period of two years following the expiration or termination of this Agreement.8.2 Disclosure of Confidential Information hereunder is solely for the purposes set forth in this Agreement. A receiving party shall use the Confidential Information only to facilitate the performance of its obligations hereunder and the Confidential Information may be shared only with those who have a need to know within the receiving party ‘s company and who are bound by nondisclosure obligations at least equivalent to the obligations imposed on the receiving party The receiving party shall not enable or allow any third party to, reverse-engineer, decompile, or disassemble any software disclosed by the disclosing party and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the disclosing party.
8.3 Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party; (ii) the receiving party was legally in possession of prior to receiving it; (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure. If a party is directed to disclose Confidential Information by law, court order, or a government agency, such disclosure shall not be deemed to be a breach of this section, provided the receiving party provides timely prior written notice of such requirement to the disclosing party, to the extent reasonably practicable or allowed by law, and reasonably cooperates with the disclosing party ‘s efforts to contest or limit the scope of such required disclosure.
8.4 Any unauthorized copying, transfer, or use of any Confidential Information by the receiving party shall cause irreparable injury to the disclosing party that cannot be adequately compensated by monetary damages. Monetary damages may not be a sufficient remedy for any such breach. If a party engages, or is reasonably suspected of engaging, causing, or permit- ting any person or entity to engage in any material breach of this section, the disclosing party shall be entitled, in addition to such other remedies, damages and relief as may be available under applicable law, to seek an injunction prohibiting any such act or specifically enforcing this section.
9. General
9.1 Waiver.No party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any right or remedy arising hereunder or in connection with any breach or illegality involving any other party. The waiver by a party of any such right or remedy shall not be construed as a waiver of any other right or remedy or as a continuing waiver with respect to any similar, ongoing, or repeated circumstances.
9.2 Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri. The exclusive forums for any disputes shall be state and federal courts located in St. Louis, Missouri and the parties hereby submit themselves and their property to the personal jurisdiction and venue thereof. Both parties freely and irrevocably waive their right to trial by jury.
9.3 Severability.
If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted, and the validity of the remaining provisions shall not be affected thereby. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
9.4 Notices. All notices, requests, demands or other communications and deliveries required or authorized by this Agreement shall be in writing and shall be given by sending the same by certified mail, return receipt requested, personal delivery, or facsimile to the other party at the address or facsimile number appearing below. Notices shall be deemed given when delivered or transmitted with confirmation or three (3) business days after deposited with the postal service or otherwise dispatched.
If to HOSTIRIAN:
Hostirian
11756 Borman Drive
St. Louis, Missouri 63146
Telephone Number: 800-615-9349 Fax Number: 314-692-3543
Attn: Vice President
9.5 Remedies.
The rights and remedies of the parties specified under this Agreement are not exclusive but are cumulative and are in addition to all other rights and remedies allowed at law or in equity.
9.6 Headings.
Article, section and paragraph headings are for convenience only and shall not be construed as part of this Agreement.
9.7 Attorneys’ Fees.
If any party is required to engage in any proceedings, legal or otherwise, to enforce its rights under this Agreement, the prevailing party shall be entitled to recover from the other, in addition to any other sums due, its reasonable attorney’s fees and costs.
9.8 Force Majeure.
HOSTIRIAN shall not be liable to RESELLER by reason of any failure or delay in the performance of its obligations due to riots, acts of God, terrorism, civil disorder, governmental action, natural cataclysm or other occurrences beyond its control, provided that it addresses the matter with due diligence and speed.
9.9 Compliance with Laws.
Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this Agreement.
9.10 Facsimile Signatures.
In the event copies of this Agreement bearing facsimile signatures are exchanged between the parties, such copies shall be binding and enforceable to the same extent as identical original documents bearing original signatures.
9.11 Survival. In the event of the termination or expiration of this Agreement, the provisions of this Agreement, which by their nature extend beyond the termination or expiration of this Agreement shall remain in effect beyond such termination or expiration until fulfilled.
9.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which, when executed, shall be considered an original for all purposes, provided that all counterparts shall, together, constitute one and the same document.
9.13 No Joint Venture.
Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between HOSTIRIAN and RESELLER. No party shall have the right to obligate or bind another party in any manner to any third party.
9.14 Transferees, Successors, and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
9.15 Entire Agreement, Amendment. This Agreement shall constitute the complete and exclusive statement of the agreement between the parties and shall supersede all oral or written proposals, prior agreements and other prior communications between the parties concerning the subject matter hereof. No addendum, amendment, waiver or modification of this Agreement shall be binding unless it is in writing and signed by an authorized representative of each party.
9.16 Acknowledgement
RESELLER states and acknowledges that they have read the aforementioned terms and conditions and that they understand them.
Company
Name
Date
Signature
Exhibit A
Gold
- 5% off server monthly fee
- FREE setup
- XXXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXXX
Platinum
- 10% off server monthly fee
- FREE setup
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
Diamond
- 15% off server monthly fee
- FREE setup
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- XXXXXXXXXXXXXXX
- Personal Key Account Manager