If you elect to offer the Certificate Services (defined further below) to others, you must agree to and abide by the terms and conditions in this Certificate Services Reseller Agreement (hereinafter, "Cert Reseller Agreement"). This Cert Reseller Agreement is between you, your organization (if you are entering into this Cert Reseller Agreement on behalf of an organization), collectively referred to herein as "you" or "your" (and appropriate formatives), the service provider offering these services to you, if any, (the "Primary Service Provider") and the backend service provider eNom, Inc. (the "Backend Service Provider"). You are identified by the contract information you provide to the Primary and/or Backend Service Provider, as the case may be, and not necessarily by the contact information of the party who pays for the Certificate Services.|
- The "Certificate Services" discussed in this Cert Reseller Agreement are the QuickSSLTM, QuickSSL PremiumTM, TrueBusinessID®, and TrueBusinessID® Wildcard services and such other digital certificate services as may be offered by the Backend Service Provider from time to time and as these Certificate Services are made available to you to be resold to others ("Sub-Resellers") who may then sell these Certificate Services to others. Ultimate consumers of the Certificate Services are referred to in this Cert Reseller Agreement as "Certificate End Users." You may sell the Certificate Services to Sub-Resellers and/or to Certificate End Users, per the terms of this Cert Reseller Agreement.
- This Cert Reseller Agreement may be modified from time to time. Modifications made to this Cert Reseller Agreement will become effective 30 days after the modifications are posted. This Cert Reseller Agreement shall be posted through the interface which you use to configure and/or otherwise order the Certificate Services (the "Services Interface"). You agree that you will check the terms and conditions periodically and that, if you no longer agree to the terms and conditions of this Cert Reseller Agreement, that you will stop selling the Certificate Services and that you will terminate the Certificate Services as described in this Cert Reseller Agreement.
- If you sell the Certificate Services to a Sub-Reseller, the Sub-Reseller MUST agree to this Cert Reseller Agreement, as it may be amended from time to time. When a Sub-Reseller agrees to this Cert Reseller Agreement, the Sub-Reseller does so from the perspective of "you," and may have Sub-Resellers, in turn; under such circumstances, you are the Sub-Reseller's Primary Service Provider. The identity of the Backend Service Provider does not change with additional layers of Sub-Resellers. You agree to hold the Backend Service Provider harmless if you fail to ensure that your Sub-Reseller(s) agree to this Cert Reseller Agreement.
- When you sell the Certificate Services to Certificate End Users, the Certificate End users must agree to the following "Subscriber Agreements":
a) The Quick SSLTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/quickssl_SA.pdf;
b) The QuickSSL PremiumTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/quickssl_premium_SA.pdf;
c) The TrueBusinessIDTM Subscriber Agreement, located at http://www.geotrust.com/resources/cps/pdfs/True_businessid_SA_4.1.pdf;
d) The TrueBusinessID® Wildcard Subscriber Agreement, located at http://www.geotrust.com/resources/legal/terms.htm
All Subscriber Agreements may be amended from time to time (so use a live link to the Subscriber Agreements when obtaining consent). You agree to hold us harmless if you fail to ensure that Certificate End User(s) agree to the foregoing Subscriber Agreements.
- The Certificate Services shall be provided to you in exchange for advance payment of the fees set from time to time by the Backend Service Provider or, if you are also a Sub-Reseller, as may be set by your Primary Service Provider. If you have Sub-Reseller(s), you are responsible for setting your own pricing with respect to your Sub-Resellers and for the collection of fees therefrom. You and each Sub-Reseller below you agree to be separately and individually responsible for and to separately and individually guarantee all payments which may be due to the Backend Service Provider for the Certificate Services.
- The Certificate Services are provided through web-based templates which you may customize and through an Application Programming Interface ("API"). Use of the web-based templates and API is by license only. This use license may be terminated by the Backend Service Provider at any time. This license is non-exclusive, revocable, non-transferable, and non-sub-licensable. You agree that you do not own or have any proprietary interest in the web-based templates and/or API and that you will not reverse engineer or otherwise copy the web-based templates and/or API in whole or in part, other than as contemplated by this Cert Reseller Agreement.
- You are hereby informed that charges by the Backend Service Provider for the Certificate Services will appear as follows: "Domain Name Registration" and/or "I-Net Sftwr Srvc & Sale." If the Backend Service Provider is providing credit card processing services in relation to your Certificate End Users, you agree to communicate this information regarding how the charges will appear so as to minimize misunderstandings and chargebacks by Certificate End Users. With respect to charges by the Backend Service Provider which appear on your own credit card(s), you agree that, prior to contacting your credit card company in relation to such charges, that you will first contact the Primary Service Provider and secondarily the Backend Service Provider to verify the charges and the manner of billing. You agree that any chargeback by a credit card company (or similar dishonoring action by or through another payment provider) of a charge related to the Certificate Services, for whatever reason and by any party, is a material breach of this Cert Reseller Agreement and is grounds for termination. You further agree that upon a chargeback, a threatened chargeback, or other similar dishonoring of a payment of fees or similar creation by you of grounds for insecurity with respect to the payment or collection of fees, you agree and acknowledge that the Backend Service Provider may suspend access to any account which you, your Sub-Reseller(s), and Certificate End Users of you and your Sub-Reseller(s) have with the Backend Service Provider and that all right, title, interest in, and use of any domain name registration(s) and/or websites, email, or other data of such parties which is hosted on systems provided by the Backend Service Provider shall be assumed by the Backend Service Provider as collateral. The Backend Service Provider will reinstate rights in the collateral subject to receipt of fees owed and the then-current reinstatement fee, currently set at US$200. Any and all of the collateral may be liquidated (sold) immediately by the Backend Service Provider to offset amounts owed. If you have a Primary Service Provider, you agree that you may not offset amounts owed to the Backend Service Provider with amounts paid to the Primary Service Provider which were not then received by the Backend Service Provider.
- The term of this Cert Reseller Agreement begins when the Backend Service Provider accepts your acknowledgment of this Cert Reseller Agreement and begins providing the Certificate Services. The term of this Cert Reseller Agreement shall continue for a period of two years and shall be extended for additional one year periods, unless either party provides the other with notice of termination at least sixty days prior to the end of the then current term. Notwithstanding the term of this Cert Reseller Agreement, nothing in this Cert Reseller Agreement obliges the Primary or Backend Service Providers, you, or a Sub-Reseller to continue to offer the Certificate Services to any party through the end of the then current term, though support for existing Certificate End Users must be continued through the term. Discontinuation of the Certificate Services by the Backend Service Provider shall be considered notice of termination of this Cert Reseller Agreement.
- Your use of the Services may be suspended and/or this Cert Reseller Agreement may be terminated if either the Primary Service Provider or the Backend Service Provider determines that you are violating the terms and conditions of this Cert Reseller Agreement or any other agreement entered into by you and either the Primary Service Provider or the Backend Service Provider. In the event of termination or suspension of Services under such circumstances, you agree that no pre-paid fees will be refunded to you.
- In the event of termination of this Cert Reseller Agreement for any reason, all terms of this Cert Reseller Agreement which, by their nature, extend beyond its termination shall remain in effect until fulfilled and shall apply to respective successors and assigns. Neither party shall be liable to the other for damages of any sort resulting solely from terminating this Cert Reseller Agreement according with its terms.
- You, so long as you are offering the Certificate Services, agree to advertise the Certificate Services on your web sites through which the Certificate Services are offered. Backend Service Provider hereby grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the term to use, display, transmit, distribute and reproduce the QuickSSLTM, QuickSSL PremiumTM, and TrueBusinessID® trademark(s) (collectively, the "Service Marks"), on your websites solely for the purpose of labeling, and providing information about, the Certificate Services. You acknowledge that you do not own the Service Marks.
- Certificate End User Information. Subject to the limitations stated in this Agreement, you and the Backend Service Provider shall jointly own all rights in the Certificate End User information supplied during the Certificate Service application process and collected by the parties during the Term, and shall have the right to make any legal use of such information. You agree to comply with the terms of the Backend Service Provider's privacy policies regarding information collected in connection with this Agreement, available at http://www.enom.com/help/privacy.asp.
- Non-Disclosure. The parties agree and acknowledge that, as a result of negotiating, entering into and performing this Agreement, each party has and will have access to certain of the other party's Confidential Information (as defined below). Each party also understands and agrees that misuse and/or disclosure of that information could adversely affect the other party's business. Accordingly, the parties agree that, during the Term of this Agreement and for a period of three (3) years thereafter, each party shall (a) use and reproduce the other party's Confidential Information only for the purposes of this Agreement and only to the extent necessary for such purpose; (b) restrict disclosure of the other party's Confidential Information to its employees, consultants or independent contractors with a need to know and (c) not disclose the other party's Confidential Information to any third party without prior written approval of the other party. Notwithstanding the foregoing, it shall not be a breach of this Agreement for either party to disclose Confidential Information of the third party if required to do so under law or in a judicial or other governmental investigation or proceeding, provided the other party has been given prior notice and the disclosing party has sought all reasonably available safeguards against widespread dissemination prior to such disclosure.
- Confidential Information Defined. As used in this Agreement, the term "Confidential Information" refers to: (i) the terms and conditions of this Agreement; (ii) each party's trade secrets, current or future business plans, strategies, opportunities, methods and/or practices; and (iii) other information relating to either party that is not generally known to the public, including information about either party's personnel, customers, designs, protocols, know-how, processes, costs, prices, finances and research and development. Each party agrees that the Referred User data collected and aggregated by the other party is Confidential Information of such other party. In addition, each party agrees that all processes and protocols provided by the other party hereunder are Confidential Information of such other party. It is further understood and agreed that for purposes of this Agreement, "Confidential Information" shall include the web-based templates and API, all modifications, enhancements, upgrades and improvements thereto and all specifications, programs, source code, object code, documentation, diagrams and other materials of any type whatsoever (tangible or intangible and machine readable or human readable) contained or revealed in any of the foregoing. Notwithstanding the foregoing, the term "Confidential Information" specifically excludes (a) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the other party; (b) information that is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other party; (c) information that either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (d) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder.
- In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking the provision, the affected party's performance (except for any payment obligations) shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
- Except as expressly authorized by this Agreement, neither Reseller nor Sub-Reseller shall make any representations or warranties regarding the Certificate Services. Each party represents and warrants that it has the right to enter into this Agreement, to grant the rights granted hereunder and that its entry into this Agreement does not and will not violate its obligations to any third party. In addition, each party represents and warrants that its signatory to this Agreement is duly authorized to bind it and that, upon execution by both parties, this Agreement shall be valid and binding upon it. Reseller further represents and warrants that if it acts as an agent on behalf of Sub-Reseller, it is duly authorized to do so. Except as a party may be specifically authorized in writing, nothing herein shall be construed as authorizing a party to bind the other in any way nor as constituting a party as an agent or representative of the other.
- EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS WEB SITE(S), THE RELIABILITY, SECURITY, CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE SERVERS USED OR THE GOODS OR SERVICES OFFERED BY EITHER PARTY AND EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY PROVISION OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY'S SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNT PAYABLE TO ENOM UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, HOWEVER, THIS SECTION SHALL NOT LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER.
- INDEMNIFICATION: YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD THE PRIMARY SERVICE PROVIDER AND BACKEND SERVICE PROVIDER, THEIR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE CERTIFICATE SERVICES OR ARISING UNDER THIS CERT RESELLER AGREEMENT, INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS CERT RESELLER AGREEMENT. WHEN EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY BE INVOLVED IN A SUIT WHICH IS RELATED TO THE CERTIFICATE SERVICES UNDER THIS CERT RESELLER AGREEMENT, EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY AND HOLD SUCH PARTIES HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED A BREACH OF THIS CERT RESELLER AGREEMENT BY YOU.
- Settlement. Neither party shall, without prior written consent of the other party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against the indemnified party.
- Each party shall be responsible for and pay its own import duties, levies or imposts, value added, sales taxes, use taxes and any other taxes imposed by any jurisdiction as a result of (a) entry into this Agreement (b) the performance of any of the provisions of this Agreement or (c) the transfer of any property, rights or any other grant hereunder.
- Neither you nor a Sub-Reseller may assign this Agreement, or any of its rights, interests or obligations, hereunder, without the prior written approval of the Backend Service Provider, which approval may be conditioned or withheld, provided, however, that any party to this Cert Reseller Agreement shall have the right to assign its rights and obligations hereunder without consent of the other party to a party which acquires the assignor by merger or sale, or which acquires all or substantially of the assignor's stock or assets or which controls, is controlled by, or is under the common control with the assignor. All of the terms of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
- You agree that the Backend Service Provider shall not be liable for the actions, inactions, negligence, or intentional misconduct of the Primary Service Provider. You acknowledge and agree that neither the Primary Service Provider nor the Backend Service Provider are agents for one another.
- The failure of a party to exercise a right under this Agreement shall in no way constitute a waiver of such right.
- You acknowledge that email and/or online communication systems (chat, account notices, etc.) will be the primary means of communication between yourself and the Primary Service Provider and/or the Backend Service Provider. You acknowledge that it is your responsibility to maintain a current email address and physical mailing address in your contact information with the Primary and/or Backend Service Provider(s). You agree that your failure to respond to a communication from either the Primary Service Provider or the Backend Service Provider may result in suspension or cancellation of Services without any refund of pre-paid fees, if any. You represent and warrant that you will not allow any unauthorized third party to access the account which you use to access the Certificate Services.
- GOVERNING LAW: this Cert Reseller Agreement, your rights and obligations and all actions contemplated by this Cert Reseller Agreement shall be governed by the laws of the United States of America and the State of Washington, as if the Cert Reseller Agreement was a contract wholly entered into and wholly performed within the State of Washington. You agree that any action to enforce this Cert Reseller Agreement or any matter relating to your use of the Services shall be brought exclusively in the United States District Court for the Western District of Washington, or if there is no jurisdiction in such court, then in a state court in King County, Washington state. You consent to the personal and subject matter jurisdiction of any state or Federal court in King County, Washington state in relation to any dispute arising under this Cert Reseller Agreement. You agree that service of process on you by either the Primary Service Provider or Backend Service Provider in relation to any dispute arising under this Cert Reseller Agreement may be served upon you by first class mail to the address listed by you in the contact information you provided to either the Primary Service Provider or Backend Service Provider or by electronically transmitting a true copy of the papers to the email address listed by you in your contact information.