Resellers Terms and Conditions
1. Program.
(a) These Terms and Conditions govern the respective rights and obligations of HostSG, ("HostSG") and the program participant (the "Reseller") identified in the program application completed by the Reseller and submitted to HostSG (the "Program Application"). These Terms and Conditions apply to the Reseller's participation in the program identified in the Program Application, and any other program in which HostSG may accept the Reseller's participation (in any such case, the "Program").
(b) HostSG may modify these Terms and Conditions and the applicable Program Description from time to time in its sole discretion, which modifications will be effective upon posting to HostSG's web site.
(c) The Program Application, the Program Description and these Terms and Conditions collectively form a single contract between HostSG and the Reseller (the "Agreement"). The Acceptance Letter, Program Application and Program Description, as each may be modified or amended from time to time, are each incorporated herein by this reference.
2. Compensation.
HostSG will provide Reseller the applicable discount set forth in the Program Description (the "Discount") for each order for Services attributed to Reseller (each, an "Order"). Reseller shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however designated or imposed on it as a result of the existence or operation of the Program Agreement, including any income, sales, or use tax on profits which may be levied against it.
3. Term and Termination.
(a) Reseller's participation in the Program will begin on the date of the Acceptance Letter sent by HostSG to Reseller (the "Acceptance Date"). The Program Agreement will terminate on the first anniversary of the Acceptance Date. Thereafter, the Program Agreement will renew automatically for successive periods of one year either unless either HostSG or the Reseller gives notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
(b) Either party may terminate this Agreement at any time for any reason by giving notice to the other party at least thirty (30) days prior to the effective date of termination.
(c) Upon termination of this Agreement for any reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein, and except for HostSG's obligation to provide the Discount for Orders accepted prior to the effective date of termination. The provisions of Sections 3, 10, and 11 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which HostSG may be entitled.
4. Reseller’s Representations and Warranties.
Reseller hereby represents and warrants to HostSG, and agrees that during the Term of the Agreement Reseller will ensure that: (a) The information regarding Reseller in the Program Application is true and correct in all material respects; (b) Reseller will comply with all applicable laws, rules and regulations in the conduct of its business; (c) Reseller will not make any representations concerning the Services except those that have been approved or published by HostSG; and (d) Reseller will not distribute any documents or materials describing the Services except those that have been approved or published by HostSG.
5. License to HostSG.
HostSG hereby grants to Reseller a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to post a copy of HostSG's name and logo, and maintain a hypertext link to HostSG's web site, (a) on a page in the Reseller web site where strategic partners are listed and (b) on such other pages on the Reseller web site as may be specified in the Reseller Acceptance Email.
6. HostSG's Acceptable Use Policy.
Reseller will abide by and utilize, the Program, HostSG's other products and services, and the Reseller Web site, only in accordance with the Acceptable Use Policy (the "Acceptable Use Policy") that HostSG posts on its Web site, as such Acceptable Use Policy may be changed by HostSG from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Reseller shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access HostSG's Web site to determine if HostSG has made any changes thereto.
7. Reseller's Responsibilities.
(a) Reseller will conduct itself in a professional manner and will maintain a reputation for fair dealing and exemplary service among its customers or clients. Reseller will not make any statement, or take any action, that could reasonably be expected to reflect poorly on HostSG or on the reputation of HostSG or its products and services.
(b) Reseller will cause its personnel who are responsible for Reseller's activities under this Agreement to remain well-informed concerning HostSG's products and services. Among other things, Participate will cause such personnel to review HostSG's web site occasionally to ensure that such personnel are reasonably familiar with HostSG's product offerings, pricing, promotions and service terms and conditions.
8. HostSG Intellectual Property.
(a) If the applicable Program Description gives Reseller the right to utilize any demonstration software programs, materials or other demonstration tools (collectively, "Demonstration Tools"), HostSG hereby grants to Reseller a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable HostSG Technology solely for the purpose of accessing and using the Demonstration Tools. Reseller may not use the HostSG Technology for any purpose other than accessing and using the Demonstration Tools. Except for the rights expressly granted above, this Agreement does not transfer from HostSG to Reseller any HostSG Technology, and all rights, titles and interests in and to the HostSG Technology shall remain solely with HostSG. Reseller shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the HostSG Technology.
(b) HostSG's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of HostSG. Except as otherwise provided in the Agreement, Reseller may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of HostSG.
(c) Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Reseller sends to HostSG relating to the Services will be treated as being non-confidential and non-proprietary. HostSG may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
9. Limited Warranty.
(a) HostSG represents and warrants to Reseller that HostSG will provide Services in connection with the Orders in the same manner as HostSG provides Services to other customers at the same level and type of service.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, HostSG MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND HostSG HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO RESELLER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. HostSG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
10. Limitation of Liability.
(a) IN NO EVENT WILL HostSG'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER, OR THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE DISCOUNT PAID BY HostSG TO RESELLER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(b) HostSG CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. HostSG WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
(c) EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR (EXCEPT AS PROVIDED IN SECTIONS 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(d) The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party's breach of Section 12 or to Reseller's indemnification obligations under Section 11.
11. Indemnification of HostSG.
Reseller shall defend, indemnify and hold harmless HostSG, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "HostSG Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of the HostSG Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Reseller's breach of any representation, warranty, or covenant contained in this Agreement, (ii) services provided by the Reseller to any HostSG customer, and (iii) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by Reseller pertaining to HostSG's Services.
12. Confidentiality; Non-Solicitation.
(a) Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 12(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
(b) Notwithstanding Section 12(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
(c) Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
(d) During the term of this Agreement and for two years following expiration or termination of this Agreement, Reseller will not, directly or indirectly, solicit or recruit the services of any employee of HostSG performing services under this Agreement, while such employee is employed by HostSG and for a period of six months after such employee has left the employment of HostSG.
