Microtronix Resellers Agreement
Microtronix Web Hosting Resellers Agreement
The terms and conditions set forth herein constitute the full and complete agreement between you (Reseller) and Microtronix ESolutions, LLC (hereinafter referred to as “Microtronix”) with respect to your participation in the Microtronix Reseller Program. The terms contained herein supersede and replace any other agreement or negotiation between you and Microtronix whether oral, written or otherwise including any statements made by any representative of Microtronix at any time. This agreement is effective and binding upon your acceptance of this agreement as indicated by your clicking the designated link (purchase link). You further agree that your continued use of this service constitutes your immediate acceptance of any changes, alterations, updates and amendments to this agreement.
1. “CUSTOMER INFORMATION” – The name, mailing address, telephone number and valid email address of each customer.
2. “MICROTRONIX RESELLER PAGE” – The web page from which you will purchase accounts for resale. Microtronix client page and billing.
3. “MICROTRONIX” – Microtronix ESolutions dba Microtronix
4. “RESELLER CUSTOMER COMMUNICATION” – A communication issued by Microtronix to be distributed to your customers.
5. “RESELLER” AND “YOU” – You and your company, employees, agents and representatives.
B. Terms and Conditions
1. Reseller Eligibility
By submitting your application for a Microtronix Reseller account you hereby certify that you are eligible to hold such account. Specifically eligibility requires the following:
1.1 You must be either a person or a corporation, partnership, limited liability company or other formal legal entity existing under the laws of your local jurisdiction and enter into this agreement in that capacity. If you are an individual, you must be over the age of 18 by the date that you agree to the terms stated herein.
1.2 You may be a participant in the Microtronix affiliate program and remain eligible for a reseller account. However, as to any sale under your reseller account, you will not be eligible to receive an affiliate commission.
1.3 You must have and maintain resources including but not limited to equipment and staff sufficient to allow you to comply with each of the terms set forth herein to the prevailing standard in the industry including but not limited to sales, maintenance, billing and customer support.
2. Reseller Rights and Obligations
2.1 Upon acceptance as a Microtronix reseller and subject to the terms set forth herein, you are hereby granted a limited, nonexclusive, nontransferable, revocable license to purchase web hosting accounts under the Microtronix reseller pricing structure for the sole purposes of reselling such services. The accounts available for sale and the reseller pricing structure are subject to change. The Microtronix accounts that are available for resale at any given time are those available at that time from the Microtronix Reseller Page. The nature and pricing of the Microtronix reseller accounts are subject to change and any changes are effective immediately upon being made available on the Microtronix Reseller Page.
2.2 Upon acceptance as a Microtronix reseller and subject to the terms set forth herein, you are hereby granted a limited, nonexclusive, nontransferable, revocable license to resell Microtronix Hosting plans according to the terms set forth herein.
2.3 The Microtronix resale accounts available for resale are subject to change at any time. This shall include but shall not be limited to the type, nature, size, bandwidth, specifications, services included, and pricing.
2.4 You will at all times maintain the confidentiality of your username and password and agree not to disclose this information to any third party. You assume all responsibility for any actions taken by any person via the use of your username and password combination.
2.5 As to your reseller customer accounts you will be solely responsible for all account services including but not limited to account maintenance, account management, customer support, billing, administration and upkeep.
2.6 You agree at all times to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the DMCA.
2.7 All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Microtronix.
2.8 It is your obligation to keep up to date as to the products and services including the product specifications as to Microtronix Web Hosting Accounts available for resale.
2.9 You shall at all times during the course of this agreement use your best efforts to market, promote and sell the Microtronix Hosting Accounts provided for herein. You shall take no action which would cast in a bad light or otherwise harm the Microtronix name, brand, servers, equipment or reputation.
2.10 You shall maintain at all times accurate customer information including name, mailing address, telephone number and email address in a format that can be provided to Microtronix for audit or any other purpose immediately upon request by Microtronix.
2.11 You shall transmit any information designated by Microtronix as a “reseller customer communication” to your customers within any specific timeframe specified by Microtronix or otherwise not later than a reasonable period of time.
3. Microtronix Rights and Obligations
3.1 Upon acceptance as a Microtronix reseller and subject to the terms set forth herein Microtronix will provide you with a reseller account. Once you have a reseller account you can purchase web hosting accounts for resale to the public according to the terms available at the time of your purchase.
3.2 Limited customer service will be offered to you for the administration of your Reseller account only. Administration of your customer accounts will be solely your responsibility.
3.3 Microtronix will provide the server space and server administration over your reseller accounts. Microtronix will not provide any other services to your customers including but not limited to any of the following: customer service, account management, customer support, billing, administration or upkeep.
3.4 Except as otherwise provided herein Microtronix will have no relationship with your customers directly. All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Microtronix.
3.5 Microtronix shall have the right to request and you shall immediately provide any and all customer information pertaining to any of your customer accounts. You shall maintain your customer information in a manner that is consistent with industry standards and which allows you to comply immediately with any such request for information.
4. Reseller Fees
4.1 There is no service fee currently charged by Microtronix for maintaining a reseller account. The only charge to you at this time is the cost of each customer resale account that you purchase from Microtronix according to the schedule set forth on the Microtronix Reseller Page at the time of purchase. However, Microtronix specifically reserves the right to institute, change, and increase any such fees at any time without notice. Microtronix further reserves the right to add additional features, limitations, restrictions or remove such features, limitations or restrictions without advance notice to you. Microtronix reserves the right to institute additional or different fees for new services or to charge for services presently included. Any such changes become effective immediately without advance notice by including them in the reseller administration panel.
4.2 You are responsible directly to Microtronix for payment for each web hosting customer account that you purchase. You are responsible to make the initial payment and any subsequent renewal payment whether or not your customer pays you for the hosting services. It is suggested that you arrange for terms with your customers that will ensure your timely payment to Microtronix to avoid any interruption in service.
4.3 Microtronix reserves the right to change these prices without notice or offer subsequent promotional rates or add or remove products or product features or impose additional fees which may or may not be more favorable than the terms under which you entered this agreement.
5. Payment of Fees - Microtronix accepts payment by Credit Card (American Express, Visa, MasterCard, Discover) and by personal check, cashier's check or money order.
5.1 Payment by Credit Card
5.1.1. Prior to activation of each of your customer resale accounts and at any applicable time thereafter you agree to allow Microtronix to charge your provided credit card and at stated regular intervals the agreed resale fee amount for the stated period. You further authorize Microtronix to charge your credit card for all subsequent period resale renewal fees at, or a reasonable period in advance of, the commencement of any such subsequent renewal period. You agree to maintain at all times current, valid, existing credit card information with Microtronix for the purpose of satisfying the Microtronix charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for suspension and /or termination of your resale account and your customer accounts at the sole option of Microtronix.
5.2 Payment by Check
5.2.1. Prior to activation of each of your customer resale accounts you agree to submit a check payable in U.S. dollars against a bank located within the United States. Microtronix is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by Microtronix. Invoices will be submitted to you as a courtesy only. Payment for subsequent period fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is timely received in a timely manner by Microtronix. An administrative fee of $50.00 will be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. Refusal or rejection of any such check or any portion thereof is grounds for suspension and /or termination of your resale account and your customer accounts at the sole option of Microtronix.
5.2.2. It is recommended that in order to avoid any service interruption that you submit your payment to Microtronix a sufficient time before the expiration of the current service period so that it reaches Microtronix in advance of the renewal date.
5.3 Refunds. This is a commercial account. There are no refunds of any kind for the purchase of a Reseller customer account. The account, however, may be transferred by you to a new purchaser upon notice to Microtronix and change of the provided customer information. Notwithstanding the forgoing, Microtronix reserves the right to make a refund of any fee paid at any time without waiving its right not to issue such refund at any time. Such right shall be exercised by Microtronix and within its sole discretion.
6. Reseller Pricing
6.1 As a Microtronix reseller you are free to set your own prices for your customer hosting accounts.
7.1 Reseller Branding. You may brand your resale accounts as you wish except that you agree not to infringe upon the rights of any third party in doing so. You further agree that you will indemnify and hold Microtronix harmless of and from any claim, action or other demand for damages including but not limited to attorneys fees and costs of any kind including expert witnesses fees which are in any way related to your marketing, branding, advertising, publicizing or sale of your customer hosting accounts.
8. Required Terms of Sale
8.1 Acceptable Use Policy.
8.1.1. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms which are fully consistent with the Microtronix terms of service and the Microtronix Acceptable Use Policy located in the Microtronix LEGAL portion of the website. This is intended to stand as a minimum Acceptable Use Policy and does not prevent reseller from adopting a policy that is stricter except that any policy adopted by reseller shall comply with the laws of the United States, the State of California and the jurisdiction where the reseller is located.
8.1.2. You agree to keep informed as to changes in the Microtronix Terms of Service including the Acceptable Use Policy and adopt them into your Terms of Service as necessary immediately upon their adoption by Microtronix.
8.2 Compliance with Laws. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that require your customers to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the DMCA.
8.3 Disclosure of Customer Information. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that allow for the disclosure of your customers personal account information upon receipt of a court order or otherwise as is reasonable.
9.1 As the reseller you are responsible for all sales taxes or other taxes that may be applicable to your sale.
10. Suspension and Termination
10.1 Suspension - At the sole option of Microtronix for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Eligibility), Section 3 (Payment of Fees), or the Microtronix Acceptable Use Policy, incorporated herewith as though fully set forth at length herein, Microtronix may suspend your account by deactivating any access by you to your reseller account and access by web users to any information contained on the Microtronix servers related to your reseller account including your customer websites while maintaining the information and data related to your account and your customer’s accounts upon the Microtronix servers for a reasonable period of time. Suspension shall specifically include the disabling of your reseller account, any hosted domain accounts, your customer accounts and any access to information or data related thereto. In the event of any such suspension you will be notified and given an opportunity to correct any such breach. In the event that such breach is not corrected within ten (10) days the account may be terminated under paragraph 10.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
10.2 Termination - This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Microtronix servers. Such information or data may or may not be made available to you by Microtronix after any such termination. This agreement may be terminated (a) at Microtronix sole discretion after a period of suspension as set forth in paragraph 10.1 or (b) by either party upon 15 days notice.
10.2.1. Upon any termination of this agreement, any customer accounts initially established by you under your Microtronix resale account under this agreement shall at the time of such termination become the sole and exclusive property of Microtronix. Microtronix shall have the right but shall not have any obligation to provide and or continue to provide web hosting services to such customers. Nothing contained in this paragraph shall reduce or otherwise affect the Rights of Microtronix under this agreement including but not limited to the right to recover any and all reseller fees under this agreement.
10.3 In the event of termination under paragraph 10.2(a) there will be no refund provided to you of any reseller or other fee. In addition, Microtronix may charge you an additional early termination fee not to exceed $100.00 at its sole option. The assessment of this early termination fee shall not affect the rights of Microtronix to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and attorney’s fees or other costs of any kind as may be applicable under this agreement or otherwise under California Law.
11. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
11.1 It is understood and agreed upon that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Microtronix including but not limited to the Microtronix reseller service tools, customer service tools and maintenance tools. You acknowledge that all right and title to any such Microtronix intellectual property shall remain the sole property of Microtronix and that you have no right, title or interest therein. You further agree not to provide access to the Microtronix reseller services to any third party. You agree that you will not yourself and you agree that you will not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Microtronix Reseller Service or any other aspect of the Microtronix Web hosting or other services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Microtronix service shall also remain the sole property or Microtronix.
11.2 During the term of this agreement you may have access to certain information and materials relating to the Microtronix business, customers, software technology and marketing which Microtronix treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any “Confidential Information” without the express prior written consent of Microtronix; and (ii) not use or disclose any of the “Confidential Information” for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
12. Information Usage
12.1 You hereby consent and agree that as to any information which Microtronix may collect from you and maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from Microtronix concerning you or your account, or other information which in Microtronix sole judgment is reasonable, Microtronix may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Microtronix and may include but shall not be limited to (1) compliance with court order or subpoena of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Microtronix Terms of Service or other policies.
Oregon, OH 43616
14.1 Sections 1, 4, 5, 8 through 22 inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
15. Warranties and Limitations
15.1 Microtronix makes every reasonable effort to maintain operation of the Microtronix Resale service; however, because many events and circumstances are beyond the control of Microtronix, Microtronix does not in any way warrant or otherwise guarantee the availability of the Microtronix Resale system or web hosting servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Microtronix.
15.2 THE Microtronix SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
15.3 In general, Microtronix has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Microtronix accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Microtronix provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Microtronix system.
15.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
15.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO MICROTRONIX IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL MICROTRONIX BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
16.1 Use of Service. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to your marketing to, resale to or support of your customers with respect to the Microtronix hosting services and any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Microtronix in any way related to your use of the Microtronix resale program, Microtronix Web Hosting services or any other aspect thereof.
16.2 Copyright. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Microtronix resale program, Microtronix Web Hosting, or any other aspect thereof. Choice of counsel remains exclusively that of Microtronix
16.3 Password. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of Microtronix.
16.4 Customer Support. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of providing or the failure to provide any account maintenance, account management, customer support, billing, administration and upkeep or any other aspect thereof. Choice of counsel remains exclusively that of Microtronix.
16.5 Personal/Financial Information. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure to comply with paragraph 2.9 herein relating to the protection of personally identifiable information and the protection of customer financial information including but not limited to credit card and bank account data.
16.6 Required Terms of Sale. You agree to fully defend and indemnify and hold harmless Microtronix of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure on your part or on the part of your customers to comply with the required Terms of Sale set forth in paragraph 8 herein.
17. Force Majeure
17.1 Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
18.1 This agreement and the rights hereunder are not assignable or transferable except that Microtronix may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Microtronix. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
19.1 If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
20. Choice of Law
20.1 This Agreement shall be interpreted under the laws of the State of Ohio without regard to any conflict of laws and provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way otherwise relating to this agreement shall be enforced in the Superior Court of the State of Ohio, County of Wood. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service of process by mail and hereby waive any defense of any kind related to jurisdiction or venue.
21. No Agency
21.1 Notwithstanding any other provision of this agreement, Microtronix is not your agent, partner or joint venturer in any respect.
22.1 Microtronix may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Microtronix web site in place of the old. Each and every such amendment shall be become effective immediately upon posting for all pre-existing and future accounts. It is your obligation to check this page often for updated agreements.
23. REQUIRED NOTICES
23.1 Copyright Infringement Claims – Microtronix ESolutions, LLC is registered with the United States Copyright office as an Internet Service Provider. Any notice concerning any claim of copyright infringement should be addressed to Microtronix ESolutions, LLC, COPYRIGHT INFRINGEMENT CLAIM, 8050 Summerfield Rd., Suite 7, Lambertville, MI 48144 - Telephone (216) 307-8480
23.2 Ohio - Pursuant to the terms of The Electronic Commerce Act of 1984 please be advised that as may be applicable to you under Ohio Law if you are unsatisfied with the manner in which a complaint that you may have regarding the Microtronix service you may contact the complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing or by telephone at 1-916-445-1254.
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