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This Reseller Agreement (the "Agreement") sets forth the terms and conditions on which you ("Reseller") will act as a reseller of certain services of Edit My Site Online. "Authorized Users" specifies an active user of the Edit My Site Online Service. This is a legally binding agreement between you and Edit My Site Online. By registering as a Edit My Site Online reseller, you agree to be legally bound by the terms and conditions set forth in this Agreement. The "Effective Date" of this Agreement shall be the date on which you complete this reseller registration process.
1. Appointment and Authority
1.1 Subject to the terms and conditions of this Agreement, Edit My Site Online appoints Reseller to be a non-exclusive Reseller for the purpose of encouraging the sale of the Edit My Site Online services set forth in Exhibit A (the "Services"). Edit My Site Online may update the list of Services, or otherwise amend Exhibit A, in its sole discretion, from time to time, effective upon notice to Reseller. For purposes of amending Exhibit A, notice to Reseller via email shall be deemed sufficient.
1.2 Reseller's sole authority shall be to perform the tasks listed herein pursuant to the terms and conditions of this Agreement. Reseller does not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Edit My Site Online, nor shall Edit My Site Online be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Reseller, except as specifically authorized under this Agreement or in writing by Edit My Site Online.
1.3 Edit My Site Online shall have sole and exclusive control over all prices, discounts, allowances, refunds, extensions of credit, development, specifications, delivery, and all other terms governing the sale and provision of the Services to Reseller or end users signed up direct with Edit My Site Online; any variance in price charged by Reseller shall not be reflected in the price charged to Reseller by Edit My Site Online. Prices and terms of sale quoted by Edit My Site Online are subject to change by Edit My Site Online at any time.
1.4 Subject to the terms of this Agreement, (a) Edit My Site Online
grants Reseller a non-exclusive, non-transferable, revocable authorization to use the trademarks, service marks, and logos of Edit My Site Online for the sole purpose of promoting the Services in a manner consistent with this Agreement, and (b) Reseller grants Edit My Site Online
a non-exclusive, non-transferable, worldwide license to use, reproduce and display Reseller's Marks and Materials solely for the purposes set forth herein. Immediately upon request, Reseller will provide Edit My Site Online
with a sample of each use or proposed use by Reseller of Edit My Site Online
Marks, and Reseller will immediately cease and desist from any such use not approved by Edit My Site Online
. Reseller will use the Edit My Site Online
Marks in conformance with any trademark usage policies provided by Edit My Site Online
from time to time. Reseller will not take any action inconsistent with Edit My Site Online
's ownership of the Edit My Site Online
Marks, and any benefits accruing from Reseller's use of the Edit My Site Online
Marks will automatically vest in Edit My Site Online
. Reseller will not form any combination marks with the Edit My Site Online
Marks. Edit My Site Online
may terminate this trademark license if, in Edit My Site Online
's discretion, Reseller's use of the Edit My Site Online
Marks tarnishes, blurs or dilutes the quality associated with the Edit My Site Online
Marks or associated goodwill. Edit My Site Online
reserves all rights not expressly granted in this Agreement. Except for the limited rights expressly granted herein by Edit My Site Online
to Reseller, nothing in this Agreement shall serve to transfer to Reseller any intellectual property rights in or to the Services, Edit My Site Online
Marks or other intellectual property owned or claimed by Edit My Site Online. Reseller acknowledges and agrees that Edit My Site Online has sole right, title and interest in and to the Services, Edit My Site Online Marks, and all Edit My Site Online intellectual property and rights therein and thereto. Reseller will promptly inform Edit My Site Online of any known or reasonably suspected infringement or misappropriation of Edit My Site Online's trademarks, copyrights or other intellectual property rights.
1.5 Reseller grants Edit My Site Online the right to publish a one time press release upon signature of this Agreement that may be issued, at Edit My Site Online's sole discretion, for the purpose of announcing the transaction entered into herewith between the parties. Reseller grants non-exclusive rights for inclusion of the Reseller Marks and Materials in Edit My Site Online press releases and promotions.
2. Reseller Obligations
2.1 Reseller will complete the Edit My Site Online
reseller registration process in a true and accurate manner. Furthermore, Reseller will maintain the accuracy of the information kept in his/her Profile on the Edit My Site Online
web site, and Reseller will periodically update such information as necessary so that such information is, at all times, true and accurate.
2.2 Reseller shall use his/her best efforts to market and solicit orders for the Services.
2.3 Reseller will inform Edit My Site Online
of each customer obtained by Reseller according to the procedure described in Exhibit A. Edit My Site Online
reserves the right to accept or reject, in its sole discretion, any customers obtained by Reseller.
2.4 Reseller will conduct all of its activities hereunder in an honest, legal, ethical, businesslike and professional manner, and in a manner that will enhance the image and reputation of Edit My Site Online
and its Services. Reseller will abide by the policies and procedures of Edit My Site Online
in effect from time to time.
2.5 Reseller will use and disseminate only those marketing and promotional materials that are either the most current versions or have been approved in advance by Edit My Site Online.
2.6 Reseller will not make any warranty or guarantee concerning the Services, and Reseller will not make any representations or statements regarding the Services other than those contained in Edit My Site Online's most current marketing literature and promotional materials.
2.7 Reseller will not engage in any type of multi-level marketing program related to Edit My Site Online or its Services without prior Agreement from Edit My Site Online.
2.8 Reseller will acquire within 30 days of the Effective Date, and maintain on an ongoing basis, a high level of knowledge and expertise in the use and operation of the latest version of the Services.
3. Edit My Site Online Obligations
3.1 Edit My Site Online will provide the Services to Reseller provided Reseller is in full compliance with all of the terms and conditions of this Agreement, and provided Reseller agrees to Edit My Site Online's standard terms and conditions governing the use of its services.
3.2 Edit My Site Online will register and provide Services to customers in accordance with Edit My Site Online's standard policies and procedures. Edit My Site Online reserves the right to reject customers that do not comply with any requirements that Edit My Site Online periodically may establish or for any other reason, in Edit My Site Online's sole discretion. Edit My Site Online will be responsible for all aspects of providing the Services. All customers who register for the Services will be deemed to be customers of Edit My Site Online. All Edit My Site Online rules, policies and operating procedures concerning privacy, pricing, customer service, and all other aspects of the Services will apply, and Edit My Site Online may change its rules, policies and operating procedures from time to time in its sole discretion. Reseller acknowledges that, as part of the Services registration process, all customers are required to agree to Edit My Site Online's then-current standard Service Agreement, as amended from time to time in Edit My Site Online's sole discretion.
4. Fees and Payment
4.1 Reseller shall be responsible for all costs and expenses it incurs in connection with the implementation and performance of its obligations under this Agreement.
5. Independent Contractors. Edit My Site Online and Reseller are independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, or (ii) constitute the parties as partners, joint venturers, co-owners or the like. All financial and other obligations associated with Reseller's business are Reseller's sole responsibility. Reseller agrees that it will not be treated as an employee of Edit My Site Online for federal, state or local tax purposes, including but not limited to unemployment compensation or workers' compensation taxes, or for any other purpose. Reseller is solely responsible for any and all taxes, whether federal, state or local, which may be applicable to its business. Reseller has neither the express nor any implied authority to accept orders from customers on behalf of Edit My Site Online nor to enter into or modify contracts, whether oral or written, on behalf of Edit My Site Online. Reseller shall not represent that its products or services are affiliated with or endorsed by Edit My Site Online, without Edit My Site Online's prior written approval.
6. Confidentiality. All information obtained by Reseller in connection with its activities hereunder, including the terms of this Agreement and all technical, pricing, marketing, business and other information that Edit My Site Online provides Reseller or that Reseller receives from Edit My Site Online or its customers or potential customers, shall be treated by Reseller as confidential and proprietary information of Edit My Site Online. Reseller will not use any such information for its own benefit or for any purpose other than fulfilling its obligations under this Agreement and Reseller shall not disclose such information to any third party except with Edit My Site Online's prior written consent.
7. Warranty; Warranty Disclaimers
7.1 Reseller represents and warrants that (i) it has the right, power and authority to enter into this Agreement and to fully perform its obligations under this Agreement; and (ii) the entering into and performance of this Agreement by Reseller does not violate, conflict with, or result in a material default under any other contract or agreement to which Reseller is a party, or by which it is bound.
7.2 EDIT MY SITE ONLINE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING OR RELATED TO THIS AGREEMENT, THE SERVICES OR ANY MATERIALS OR ASSISTANCE PROVIDED TO RESELLER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, COURSE OF PERFORMANCE OR DEALING, TRADE PRACTICE, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnity. Reseller will indemnify and hold harmless Edit My Site Online and its customers, suppliers, directors, officers, agents and employees from and against any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable attorneys' fees) arising out of or relating to any breach by Resellers of any of the terms of this Agreement.
9. Limitation of Liability. EDIT MY SITE ONLINE SHALL NOT BE LIABLE TO RESELLER OR ANY ENTITY OR PERSON CLAIMING THROUGH OR UNDER RESELLER FOR ANY LOSS OF PROFIT OR INCOME OR OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN AN ACTION FOR CONTRACT OR TORT, IN CONNECTION WITH THIS AGREEMENT, EVEN IF EDIT MY SITE ONLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EDIT MY SITE ONLINE'S LIABILITY TO RESELLER HEREUNDER EXCEED THE AMOUNTS RESELLER HAS PAID EDIT MY SITE ONLINE IN THE 12 MONTHS PRECEDING THE CLAIM. THIS LIMIT IS CUMULATIVE AND THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THE LIMIT. RESELLER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND IN THEIR ABSENCE THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
10. Term and Termination
10.1 This Agreement will begin on the Effective Date and continue until terminated pursuant to the terms herein. This Agreement may be terminated by either party for convenience upon 30 days written notice. In the event of a material breach not cured within 10 days of written notice of breach to the breaching party, this Agreement may be terminated immediately upon written notice of termination to the breaching party.
10.2 Upon termination of this Agreement for any reason: (i) Reseller will immediately cease use of all Edit My Site Online confidential and proprietary information, all Edit My Site Online Services provided hereunder, and all Edit My Site Online Marks and marketing materials; (ii) Reseller will immediately return to Edit My Site Online all confidential and proprietary information, brochures, literature, documentation and other materials within its control without retaining any copies thereof. No commission or other payments will accrue to Reseller after the termination of this Agreement for any reason. Neither party will be liable to the other for any termination of this Agreement in accordance with its terms. Sections 5 through 11 herein shall survive termination of the Agreement.
11. Miscellaneous. This Agreement, including Exhibit A (which is incorporated herein by this reference), constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof. Except as otherwise expressly set forth herein, this Agreement may be amended only in a writing signed by the parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties' successors and permitted assigns; provided however, that Reseller may not assign this Agreement, in whole or in part, without Edit My Site Online's prior written consent and any assignment by Reseller without such consent shall be null and void. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without regard to its rules pertaining to conflict of laws. Any litigation or dispute resolution related to this Agreement shall take place in Marin County, California, and the parties hereby consent to the jurisdiction of the state and federal courts located therein. Except as otherwise expressly set forth herein, any notice required or permitted to be given under this Agreement shall be sufficient if in writing, in the English language, and sent via U.S. Certified Mail, return receipt requested. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, that provision will be severed only to the extent minimally necessary, and the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
EXHIBIT A to Edit My Site Online Reseller Agreement
A. Edit My Site Online Services
1. EMSO Pages
2. EMSO Image Space
ADDITIONAL INFORMATION
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