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Ilait Resellers Agreement: Terms of Service

These Terms of Service is between Ilait, Inc (“Ilait” or “Provider”), a Delaware corporation whose principal place of business is 800 Bellevue Way NE Suite 400, Bellevue, WA 98004, United States and you (“Reseller”).

Access to Ilait’s cloud computing and hosting services, through the Ilait Partner OS – Control Panel and API (collectively the “Control Panel”), software applications and other current and future services (collectively the “Services”) are subject to and governed by these Terms of Service, together with any additional incorporated terms or agreements.

By accessing Provider’s Services, Reseller agree to be bound by all of the terms and conditions set forth in these Terms of Service (the “Agreement”). Provider has the right to modify the terms or conditions of this Agreement with prior written notice of thirty (30) days, to be sent via email, except in the event of a change in applicable law or industry standards in which this Agreement may be modified immediately upon notice. Reseller’s access or use of the Services following any such modification of the Agreement constitutes Reseller’s consent to the modified Agreement.

1. Use of the Services

Reseller agrees to access and use the Services only for the lawful purposes as set forth herein and in accordance with any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States, or the export laws of other relevant countries as amended from time to time). Reseller agrees to use the Services as set forth in Provider’s Acceptable Use Policy (”AUP”) document.

Reseller shall only administer the Services through the Control Panel. Reseller and Reseller's customers shall only use the Services through appropriate methods described by Provider in the Control Panel, such as web applications and client software. Reseller agrees to use the Control Panel and Services in accordance with the AUP. Reseller shall not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Reseller shall ensure the compliance of its customers with the foregoing authorized use of the Services through Reseller’s own customer contracts. Reseller shall be liable for any breach of use of the Services as set forth above by its customers.

2. Appointment Of Reseller; License Grant

2.1 Provider hereby appoints Reseller as an authorized, non-exclusive reseller to license the Services to Reseller’s customers. Reseller is authorized to provide its customers with technical support, including direct software support and assistance as relates to its customers’ access and use of the Services. Provider shall provide Reseller with technical support for the Services as further described in Section 4 below.

When applicable, as a condition of use of the Services, Reseller accepts and agrees to accept any applicable third party software supplier/ licensor contracts that apply to component software applications included in the Services. When any third party contract applies, Reseller acknowledges and accepts that Reseller is solely responsible for providing its customers with all terms of access and use of third party software or services, including but not limited to end user license agreements or terms of use/ service contracts as applicable.

2.2 Provider hereby grants to Reseller the non-exclusive, non-transferable, non-perpetual, worldwide right to: (i) market, display, and demonstrate the Services to its customers and potential customers; and (ii) distribute sublicenses for use of the Services to its customers; and (iii) collect all license fees associated with such sublicense directly from its customers, for the duration selected and paid for by the Reseller.

3. Reseller's Obligations

3.1 Reseller shall exercise its best efforts in advertising, promoting and selling sublicenses to the Services and providing support; and maintaining and servicing its customers’ use of the Services, under the Reseller’s own name or brand and in its own account, including the option to use its own branding or white label. Reseller shall:

  • 3.1.1 Guarantee that its customers use the Services as authorized and intended, including but not limited to, prohibiting the following: (i) use intended to harm a person, entity or other third party; (ii) execution or assistance of any fraudulent activities; (iii) unsolicited email [Spam/ UCE]; (iv) unauthorized access to third party information; (v) infringement of third party intellectual property rights; (vi) collection of personal information or data in contravention of law; and (vii) perpetration of technical problems [congestion/ denial of service];
  • 3.1.2 Represent to its customers accurately the capabilities, representations and warranties of the Services as set out in its specifications or documentation;
  • 3.1.3 Provide support to its customers. Reseller shall not refer its customers to Provider for technical support.
  • 3.1.4 Promptly report any errors or functionality issues related to the Services to Provider for Provider’s review and assistance; and
  • 3.1.5 Respond to and provide information based on requests from Provider or its third party licensors, including but not limited to its customers’ information.

4. Provider’s Obligations

4.1 Support & Availability. Provider will provide Reseller with technical support services for the Services in accordance with its Service Level Agreement (the “SLA”). Provider will use commercially reasonable efforts to correct any defects or errors in the Services and will endeavor to ensure access to the Services. Provider is not responsible for the existence of or for correcting defects in third party software applications/ programs, platforms or performance or Reseller’s customers’ hardware and does not guarantee that the Services will be error-free or will operate without interruption.

Reseller agrees that Provider may, without notice, suspend access to the Services for maintenance, error correction, safety reasons and upgrades of hardware or software as set forth in the AUP. Provider shall not be liable, directly or indirectly, for any damages to Reseller, its customers, or any third party for exercising the foregoing rights and any resulting interruption or defect of the Services. Reseller shall indemnify and hold harmless Provider from any liability created or caused by Reseller’s customers, including but not limited to damages for unlawful or authorized use. Furthermore, Reseller shall indemnify and hold the Provider harmless against any activity by Reseller’s customers that is outside the scope of the AUP, and Provider may terminate the applicable Services, this Agreement and/or block the offending customer for such activities.

4.2 Login. Provider will assign to and provide Reseller’s appointed officer with login name(s) and password(s) for the Services and Provider’s Control Panel. Reseller shall keep confidential and use its best efforts to prevent disclosure of all logins and passwords. Reseller shall immediately notify Provider upon disclosure or suspicion of misuse/ unauthorized use of a login name or password.

4.3 Domain Name Services. Provider is a registrar for top-level domain names and is ICANN accredited. Registration, renewal and handling of domain names will be processed and billed in the same manner as the Services, subject to documentation as set forth in ICANN Governing Agreements and Policies. Reseller agree to be bound by all terms and conditions as set forth in Domain Registration Agreement when registering or assigning Provider the registrar role for a domain name in the Control Panel.

5. Prices and Payments

5.1 Prices. Reseller shall order the Services via Provider’s Control Panel at the prices listed therein. Provider reserves the right to change prices without advance notice and with immediate effect. The price listed on Provider’s Control Panel at the time the Services are accessed shall be the price for the order on that particular date.

5.2 Revocation of an Order. For only certain Services explicitly marked as “Revocable” as set forth in the Control Panel when placing an order, Reseller may revoke the order within seven (7) days if the ordered Service has not been used by the Reseller or its customer(s). This right to revoke the order shall apply to only certain unused Services that have been removed, within seven (7) days from the first date on which the order was placed through the Control Panel. If any unused Services remain posted in the Provider’s Control Panel for more than seven (7) days, then such Services shall be deemed used and the order shall become irrevocable. The order of any Services that are not explicitly marked as “Revocable” in the Control Panel are irrevocable.

5.3 Billing. Provider will bill Reseller by credit card, ACH, or invoice for all Services, generally within the first week of each month or per other period in accordance with the Service purchased. Reseller is responsible for billing and collecting from Reseller's customers. Reseller is solely responsible for any and all taxes and expenses.

Any amounts payable to Provider hereunder which are not paid after five (5) business days from the due date according to Provider’s invoice, shall incur a late payment fee of $25.00, or corresponding amount and currency according to the Reseller’s assigned pricelist, and, after becoming more than thirty (30) days overdue shall bear interest at the rate of one-and-one-half percent (1.5%) per month or the maximum rate permitted by law. If any legal proceedings are initiated for payment past due or any past due payment is collected through an attorney or a collection agency, Reseller shall pay all reasonable costs of collection, including, without limitation, all court costs and reasonable attorneys' fees. In the event of any payment(s) on Reseller's account that is more than fifteen (15) days overdue, Provider, at its sole discretion and without waiving other rights it may have, may suspend, interrupt, or terminate the Services.

6. No Warranty

6.1 Provider does not warrant any of the third party software accessed as part of the Services and Reseller acknowledges that any such warranty is provided by the respective third party. Accordingly Provider does not warrant that the software accessed as part of the Services will be error-free or operate without interruption from time to time; nor does Provider warrant the retention of data submitted to it by Reseller or Reseller’s customers.

6.2 NO WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE SERVICES HEREIN, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE THAT (i) ACCESS TO THE CONTROL PANEL, WEBSITE, SERVICES OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED; (ii) THAT ANY ERRORS OR DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED; (iii) THAT THE SERVICES AND SOFTWARE FUNCTIONALITY WILL MEET RESELLER’S OR ITS CUSTOMERS’ REQUIREMENTS; (iv) THAT THE SERVICES AND SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY RESELLER OR ITS CUSTOMERS; OR (v) THAT THE SERVICES AND SOFTWARE WILL PRODUCE THE RESULTS DESIRED BY RESELLER OR ITS CUSTOMERS.

7. Intellectual Property

7.1 Ownership. Neither party conveys any existing or future right, other than a right of use as expressly provided in the Agreement, in its proprietary software, programs, systems, data, formula, methods, techniques, processes, routings, standards, trademarks, trade secrets, know-how and technical material including but not limited to programs, applications, source code, or services provided or communicated by one party to the other in the performance of the Agreement and neither party obtains any rights of ownership from the other. The copyrights, trade secrets and all other intellectual property rights of whatever nature shall remain with the original owning party and/or its third party licensors. As between the parties, Reseller owns all intellectual property rights in Reseller or Customer Data, and Provider owns all intellectual property rights in the Services.

7.2 Reseller shall not to remove any logos and trademarks from any Services, software, or if any, documentation provided by Provider. Reseller shall not to reproduce Provider’s logos and trademarks in advertising, promotional or other materials, whether in written or digital in form, without the advance written consent of Provider. Notwithstanding anything herein to the contrary, Reseller may use its own brand or white labeling in sublicensing the Services.

7.3Reseller or Customer Data. Reseller represents and warrants that all of its data, content or other information required for and used in connection with the Services are Reseller’s exclusive property. In the case of third party data, content or other information, Reseller shall ensure through its customer contracts that Reseller‘s customers hold full rights to and may use such information with the Services without liability to any third parties. Reseller agrees to indemnify Provider for any damages, expenses, costs or judgments incurred due to Reseller's breach of the foregoing representation and/or due to any claims regarding such information as described above.

7.4 Each party will notify the other of any notice of or infringements or violations of rights, whether actual or threatened, that pertain to the Services or respective business interests of the parties that come to a party’s attention. In the event of any notice of or infringement of any rights granted to Reseller hereunder, Provider shall have the option to bring any action for such infringement on behalf of itself and Reseller, and Reseller shall cooperate fully with Provider in such action; and in such event Provider shall bear the expenses of the action and all proceeds of such action shall belong to Provider. If Provider declines in writing to bring any such action, Reseller may proceed on its behalf and Provider’s behalf and shall bear all expenses of the action.

8. Confidentiality

8.1 Protection of Confidential Information. “Confidential Information” means either party’s non-public proprietary information, and specifically Provider’s Control Panel, passwords, login, databases, pricing or other information concerning the Services, including but not limited to technology, software programs, source code, applications, and trade secrets, methods and other property rights; and any business, marketing or technical information disclosed by Provider in relation to the Agreement. Confidential Information does not include information (a) hereafter rightfully furnished to either party by a third party without a breach of any separate nondisclosure obligation, (b) publicly available without breach of the Agreement (i.e., information in the public domain), (c) furnished by the disclosing party to a third party without restriction on subsequent disclosure if furnished without breach of confidentiality according to any contract or agreement of that third party or other limitation on that third party’s disclosure, or (d) independently developed by the receiving party without reliance on the Confidential Information as evidenced through written documents. Neither party will provide, disclose or otherwise make available to any third party any Confidential Information and will use commercially reasonable efforts to maintain the secrecy of such information. Except as expressly provided herein, neither party will use or disclose such Confidential Information without the other party’s prior written consent, except to each party’s employees or agents on a need-to-know basis, provided that such employees or agents have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the obligations under this Section 8.1.

8.2 Nothing in this Agreement shall be construed to restrict the parties from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall provide written notice to the other party within two (2) business days of receipt of the order or request, and the disclosing party shall use its best efforts, as determined by the non-disclosing party, to limit the disclosure and maintain the confidentiality of such Confidential Information. In addition, the disclosing party shall permit the other party to attempt to limit such disclosure by appropriate legal means, such as obtaining a court protective order.

8.3 Equitable Remedy. Each party agrees that in the event of any breach of this Section 8 or Section 7 above, including without limitation, the actual or threatened disclosure or unauthorized use of the Confidential Information without prior express written consent of the party with rights to the Confidential Information (the “non-disclosing party”), the non-disclosing party will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, the parties hereby agree that the non-disclosing party may be entitled to specific performance of the disclosing party’s obligations under Section 7, “Intellectual Property” and Section 8, “Confidentiality” commitments as well as such further relief as may be granted by a court of competent jurisdiction. Furthermore, in the event of breach of the Agreement, the parties agree that, in addition to any other remedies that may be available to the non-disclosing party at law or equity, the non-disclosing party shall be entitled to injunctive relief and that the non-disclosing party shall not be required to post bond or other security.

9. Term and Termination

9.1 This Agreement is effective until terminated and in any event shall remain in effect for as long as Reseller purchases or is provided with the Services. Provider may terminate this Agreement with regard to the Reseller (a) immediately if the Reseller: (i) institutes bankruptcy or similar proceedings; (ii) has bankruptcy proceedings instituted against it; (iii) makes or attempts to make an assignment of property or assets for the benefit of its creditors; or (iv) upon Reseller’s breach of Sections 2, 7 or 8, or non-payment pursuant to Section 5 above; or (b) thirty (30) days after Reseller’s breach of any of its other obligations under the Agreement in any material respect, which breach is not remedied within such 30-day period after Reseller has been notified thereof.

Reseller may terminate the Agreement for convenience at any time on thirty (30) days advance notice as long as Reseller currently is not provided any Services. If Reseller terminates the Agreement for convenience, in addition to other amounts Reseller may owe, Reseller may be required to pay an early termination fee equal to any minimum monthly financial commitment Reseller has made for the remaining portion of the then-current term.

9.2 Effect of Termination. Upon any expiration or termination of this Agreement, all rights granted herein shall terminate and Reseller shall immediately cease access or use of the Services and any related documentation and shall no longer be provided with the Services.

Furthermore, upon any breach by Reseller, termination or expiration of this Agreement or any other applicable contract between the parties, Provider may discontinue providing the Services to Reseller and may discontinue Reseller’s access to the Services and Provider’s Control panel without liability.

10. Limitation Of Liability

PROVIDER’S TOTAL LIABILITY UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY RESELLER FOR THE PAST THREE (3) MONTHS. IN NO EVENT SHALL PROVIDER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE.

Provider shall not be liable for any claims or problems arising or occurring during a time period in which the Services were not used or accessed. Reseller also agrees to indemnify and hold harmless Provider and its contractors, agents, employees, officers, directors, shareholders and affiliates from any claims resulting from this Agreement, including any claims made by Reseller’s customers or third parties based on representations and warranties that differ from those made by Provider or its third party licensors in their documentation.

Accordingly, Reseller agrees to assume the responsibility for insuring against or otherwise bearing the risk of greater damages. The limitations of liability set forth herein are intended to limit Provider's liability and will apply notwithstanding the failure of the essential purpose of any limited remedy. Any action, claim or proceeding relating to this Agreement, the Services provided in connection with this Agreement or the transactions contemplated by this Agreement, must be brought within three (3) months following the action or event giving rise to such action, claim or proceeding. Reseller agrees to use reasonable efforts to mitigate any damages sustained by Reseller pursuant to or in connection with the use of or Reseller's inability to use the Services or software provided in connection with this Agreement.

11. Miscellaneous

11.1 Survival. 2.2 (License Grant), 6 (No Warranty), 7 (Intellectual Property), 8 (Confidential Information), 9.2 (Effect of Termination), 10 (Limitation of Liability) and 11 (Miscellaneous) as well as any accrued payment obligations, shall survive any expiration or termination of this Agreement.

11.2 Duly Authorized & Independent Contractors. Reseller represents and warrants that it has the right to enter into this Agreement and that Reseller’s officer who is obtaining the Services has the proper and duly noted authorization to enter into this Agreement to bind Reseller. The relationship of Provider and Reseller is one of independent contractors. Nothing in this Agreement, orders, or other contract shall be taken as creating any partnership, joint venture, or agency relationship between the parties, and neither party has the right to incur any rights or obligations on behalf of the other.

11.3 Assignment.Reseller may not, without Provider’s prior written consent, assign or transfer or purport to assign or transfer this Agreement or the benefit thereof to any other person, firm or company whatsoever.

11.4 Invalid Provisions/ Severability. Should any provision of this Agreement be judicially declared unenforceable or invalid under any applicable statute or rule of law, that provision shall be deemed stricken and the remainder of this Agreement shall continue in full force and effect, with such invalidity not affecting the remaining portions of this Agreement and the remaining Agreement shall be construed so as to best effectuate the intention of the parties in executing it. The parties further agree to re-negotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.

11.5 Entire Agreement; Amendment and Waiver. This Agreement, orders and any other policies, contracts or other documents referenced herein, represent the entire agreement between Provider and Reseller with respect to the Services and shall supersede all prior agreements and communications of the parties, oral or written concerning the Services. No amendment to, or waiver of, any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. The waiver by any party of any breach or default shall not constitute a waiver of any different or subsequent breach or default.

11.6 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Illinois excluding its conflict of law provisions, and Purchaser consents to the exclusive jurisdiction of the federal and state courts located in Cook County, Illinois in connection with any dispute or controversy relating to or arising out of this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

In addition to any sums due Provider pursuant to this Agreement or any sums which Provider may recover pursuant to common law or any federal, state or other law, Reseller shall pay and Provider shall be entitled to collect or recover any and all costs and expenses including attorney’s fees, litigation and non-litigation expenses and court costs, incurred by Provider in the collection of any sums which are due Provider from Reseller.

11.7 Waiver of Jury Trial. In any controversy or claim, whether based in contract, tort or other legal theory, arising out of or relating to this Agreement, or any related documents, enforceability or validity, or the performance or breach thereof or the relationships established there under, Reseller hereby waives any right to trial by jury, when applicable.

If you have any questions, concerns or other notice regarding this Reseller Agreement: Terms of Service or the Services, please contact us as set forth below:

Ilait, Inc. Att. Legal Department
800 Bellevue Way NE, Suite 400
Bellevue, WA 98004
United States

E-mail: agreements@ilait.com
Web: www.ilait.com

Revision 09/21/2012