THIS AGREEMENT HAS A PROVISION FOR ARBITRATION OF DISPUTES BETWEEN THE PARTIES.
This Reseller Agreement ("RSA") is a legal agreement by and between you, as you have identified yourself in your account information ("You" and "Your") and Name.com, Inc. ("Name.com"). You warrant that the information You provide in Your account with Name.com ("Your Account") is accurate and that You will keep it updated. This RSA sets forth the terms and conditions of Your use and resale of Name.com's Domain Name Registration and related services ("Services"). By using the Services, You acknowledge that You have read, understand and agree to be bound by this RSA, along with any additional terms, conditions or policies which Name.com or ICANN may establish from time to time. In addition to transactions entered into by You on Your behalf, You also agree to be bound by this RSA for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your Account. This RSA will only be effective upon Name.com's provision of the Services to You. The terms and conditions of this RSA may be modified from time to time by Name.com. Such modifications become effective thirty (30) days after we notify You of the modifications or immediately upon Your express consent to the revised terms and are effective from that date forward. You agree that we may notify You of the modifications by, for example, sending email to You at Your email address of record. If You do not agree to the terms and conditions of this RSA as modified, You may send us a cancellation notice and You will remain subject to the unmodified terms and conditions of this RSA (except Section 5 ICANN Obligations will apply to You) for the remainder of the term of the RSA, after which Your RSA will terminate.
- Reselling the Services
Subject to the terms and conditions of this RSA, Name.com grants You a non- exclusive, non-transferable license to resell the Services worldwide. To resell domain name registration services, You and each of Your end customers purchasing such Services must agree to the Domain Name Registration Agreement (the "Registration Agreement"). To resell Name.com's privacy service that lists proxy contact information in the WHOIS database instead of Your end customer's contact information, You and each of Your end customers purchasing such Services must agree to the ID Protection Service Agreement. You agree to indemnify and hold harmless Name.com for any failure by You to obtain the consent of any customer to these additional terms and conditions. The Services do not include other services which are not made available through Your Account by Name.com or its third party licensors.
If You stop using Your Account, become unavailable to Name.com, Your customers, or this RSA is terminated by Name.com for any reason, Name.com may, but is not obligated to, assume direct control over any of Your customers.
- Points, payments, and commissions
You are required to maintain a positive and sufficient account balance or set up a valid payment profile to obtain the Services. Name.com accepts checks and/or wire transfers with no additional charges. Please contact Name.com to arrange such a payment.
You authorize Name.com to deduct from your account balance, or debit the credit card You present in relation to a particular transaction or the credit card You otherwise provide through Your Account. You must present only approved transactions to Name.com. Prior to contacting Your credit card company in relation to such charges, You will first contact Name.com to verify the charges and the manner of billing. You must require all customers in and below Your Account to only present approved transactions to Name.com and to contact Name.com regarding charges, as described above. Any chargeback by a credit card company or similar action by or through another payment provider relating to payment to Name.com, for whatever reason, whether by You, by any customer below Your Account i) is a material breach of this RSA, ii) is an act for which You agree to be jointly and severally liable to make Name.com whole, iii) is an act with respect to which Name.com will charge $35.00 per incident, in addition to merchant services fees and other payment provider service charges which may be charged to Name.com, and iv) that the same shall be grounds for suspension and/or termination of this RSA and the Services. Under such circumstances, Name.com may suspend Your access to any and all of Your Accounts and may assume all right, title, interest in, and use of any domain name registration(s) and/or websites, email, or other data hosted on systems controlled by Name.com (the "Collateral"). Name.com will reinstate rights in the Collateral solely in its discretion, subject to receipt of the fee(s) owed and the then- current reinstatement fee, currently set at US$200. You hereby acknowledge and consent to Name.com's right, but not obligation, to sell, dispose of, or retain the Collateral if Name.com determines the same to be a means of obtaining some monetary or other satisfaction or security, even if You assert that the value of the Collateral exceeds the amount You owe Name.com.
Name.com may require that You pay for the Services using a particular payment means, such as by wire transfer. Name.com may also demand reasonable assurance of payment at Name.com's sole discretion.
You authorize Name.com to deduct from Your account balance any amounts owed by You to Name.com, including, without limitation, amounts owed as a result of Your indemnification of Name.com for third party claims and any administrative costs, including reasonable administrative costs which may be charged for inactive accounts.
You authorize Name.com to sell, take title to, and/or use any Collateral as a means of obtaining some monetary or other satisfaction for any amounts owed by You to Name.com, including, without limitation, amounts owed as a result of Your indemnification of Name.com for third party claims and any administrative costs, including reasonable administrative costs which may be charged for inactive accounts.
You are responsible for providing customer service, billing, and technical support to Your customers. Name.com will provide telephone and/or email support to You 24 hours, 7 days per week. Name.com may, but is not obligated to, provide support directly to Your customers. If Name.com receives communications from registrants or from third-parties regarding Services provided in Your Account, Name.com will, where appropriate, forward such communications to You at Name.com's discretion for further action; however, reserves the right to respond to such communications directly. If Name.com determines that You are providing inadequate support to Your customers (resulting in, for example, an excessive number of support calls directly from Your customers), You will be in breach of this RSA and Name.com may terminate this RSA.
- Licensed Use of Trademarks and Technology
The Services may only be accessed through the application programming interface (including the associated documentation, the "API"), Your Account, websites created by Name.com which use the API, updates and upgrades thereto, and through such other means and technologies which Name.com makes available through its websites or downloads (collectively, the "Technology").
Name.com hereby grants to You a non-exclusive, non-transferable, royalty-free, terminable license, exercisable solely during the term of this RSA, to use the Technology solely for the purpose of accessing and using the Services.
Name.com hereby grants You a non-exclusive, worldwide, fully paid up, royalty free, terminable right and license to use Name.com's trademarks (the "Trademarks") solely as provided by Name.com and solely as pre-approved in writing in connection with the marketing and promotion of the Services. All approved uses of Trademarks will inure to the benefit of Name.com.
Except for the rights expressly granted above, this RSA does not transfer from Name.com to You or Your customers any Name.com Trademarks, technology or intellectual property rights, and all rights, titles and interests in and to the Trademarks, Technology and intellectual property remain solely with Name.com.
You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Technology.
You shall not branch or otherwise prepare derivatives of the API.
You shall not copy or use the Technology except as specified in this RSA.
You shall not create, apply for, or otherwise procure any rights in any Trademarks or any patent or copyright interest in the Technology and any derivative thereof ("IP Interest") which IP Interest would block, impede, or make more expensive Name.com's continued use and enjoyment of the Technology. If You breach the provisions of this Section, any IP Interests created thereby shall be assigned to Name.com at the point they are fixed in tangible form. You agree to execute any documents necessary to affect an assignment of any such IP Interests to Name.com without compensation.
You shall not use the Technology to communicate with or control a system other than one(s) designated by Name.com, and You may not access the Services using any access mechanism other than the Technology.
You shall not abuse the Service infrastructure. "Abuse" in the foregoing sentence means, by way of example and without limitation, any action or conduct which degrades service to other users of the shared Services and Technology.
You shall not use the Technology to engage in drop catching.
- ICANN Obligations
Pursuant to Name.com's Registrar Accreditation Agreement with ICANN (a current version of which can be found here) (the "RAA") You must comply with the following terms:
You must not display the ICANN or ICANN-Accredited Registrar logo, or otherwise represent Yourself as accredited by ICANN unless You have written permission from ICANN to do so.
You shall require all of Your Customers to enter into the Registration Agreement. You shall ensure that the Registration Agreement includes all registration agreement provisions and notices required by the RAA and any ICANN Consensus Policies. You shall publish on Your website all fees for domain name renewals, post-expiration renewal fees (if different), and also redemption/restore fees. In addition, you must include such fees in the Registration Agreement. You must also identify Name.com as the sponsoring registrar upon inquiry from Your customer.
You must comply with any ICANN-adopted specification or policy that establishes a program for accreditation of individuals or entities who provide proxy and privacy registration services (a "Proxy Accreditation Program"). Among other features, the Proxy Accreditation Program may require that proxy and privacy registration services may only be provided in respect of domain name registrations by individuals or entities accredited by ICANN pursuant to such Proxy Accreditation Program. In such a case, You must not knowingly accept registrations from any provider of proxy and privacy registration services that is not Accredited by ICANN pursuant to the Proxy Accreditation Program. Until such time as the Proxy Accreditation Program is established, You must comply with the Specification on Privacy and Proxy Registrations.
ICANN has published an educational webpage summarizing the terms of the RAA and related consensus policies. You must provide a link to such webpage on any website You may operate for domain name registration or renewal, such link which must be clearly displayed to Your customers at least as clearly as You link to policies or notifications required to be displayed under ICANN consensus policies.
You must publish on Your website(s) and/or provide a link to the Registrants' Benefits and Responsibilities and shall not take any action inconsistent with the RAA or applicable law.
Any other terms and conditions which come into effect through the revision of the RAA by ICANN or through the introduction of any amended or new ICANN consensus policy, whether or not Name.com gives You notice of such revisions, amendments, or new policies.
In addition to any other right to terminate set forth in this RSA, Name.com specifically has the right to immediately terminate this RSA, without notice or right to cure, in the event that You violate any terms found in this Section 5.
- License by You to Name.com
In connection with providing materials to Name.com in performance of the Services, You grant Name.com a limited license to modify, adapt, incorporate with other material, and otherwise to use the materials provided by You but only to the extent necessary or useful to provide the Services as directed by You. You warrant that the materials provided by You to Name.com are Your sole property or that You have obtained appropriate licenses to the material such that Name.com's use of the material in providing the Services shall not subject Name.com to a claim.
- Restrictions on Use of Services
You must not make any representations or warranties about the Services to any of Your customers or any other third party that are inconsistent with this RSA. You agree not to use the Services, or to allow Your customers to use the Services for:
- The transmission of unsolicited email (spam);
- Repetitive, high volume inquires or other excessive use or abuse of the Services or Technology;
- Any activity which results in Name.com's IP addresses being reported to spam blocking organizations or other organizations which attempt to police or monitor abuse of the Internet;
- Any illegal, dishonest, deceptive or unfair trade practices;
- Any use which fails to abide by customary industry acceptable use policies or any applicable laws.
In addition to any other right to terminate set forth in this RSA, Name.com specifically has the right to immediately terminate this RSA, without notice or right to cure, in the event that You violate any terms found in this Section 7.
- Suspension or Termination of the Services
In addition to any other rights or remedies of Name.com herein, Name.com reserves the right to suspend performance of the Services or to preclude use of or access to the Technology in the event of an unresolved breach of this RSA or suspension or cancellation is required by any policy now in effect or later adopted by ICANN. You agree that Your failure to comply completely with the terms and conditions of this RSA and any Name.com rule or policy may be considered to be a material breach of this RSA and Name.com may provide You with notice of such breach either in writing or electronically (i.e. email). In the event You do not provide Name.com with material evidence that You have not breached Your obligations within ten (10) business days, Name.com may terminate this RSA and take any remedial action available to Name.com under the applicable laws. Such remedial action may be implemented without notice to You and may include, but is not limited to, cancelling the registration of any of Your domain names and discontinuing any Services provided to You. No fees will be refunded to You should Your RSA be cancelled or Services be discontinued because of a breach.
- Term of this RSA and Termination
This RSA is effective for a period of one (1) year from the date of creation of Your Account by Name.com. This RSA will then renew for an indefinite number of one (1)-year terms. Upon at least thirty (30) days written notice (including notice via email), either party may terminate this RSA. Name.com also retains the right to terminate this RSA immediately if Name.com determines, in its sole discretion, that You, Your customers have failed to comply with any term or condition of this RSA, or that Your use of the Services presents an unreasonable risk of harm to Name.com or its affiliates, the Service, other users, or members of the general public.
During the term of this RSA and for one (1) year thereafter, each party must treat the other party's Confidential Information as confidential, and must not use such Confidential Information except as expressly permitted under this RSA. Each party shall take reasonable measures to prevent the disclosure and unauthorized use of the Confidential Information of the other party; which shall be no less than the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this RSA. Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the other party. For purposes of this RSA "Confidential Information" means any non-public information relating to either party's business, product plans, designs, costs, prices and names, finances, business opportunities, personnel, research development or know-how. "Confidential Information" does not include information that: (i) is or becomes publicly known or available through no fault of the receiving party; (ii) is already known by the receiving party at the time of disclosure; (iii) is independently developed or learned by the receiving party without reference to the other party's Confidential Information; or (iv) is lawfully obtained from a third party that does not have an obligation of confidentiality to the disclosing party. It is not a breach of this RSA to disclose Confidential Information of the other party pursuant to an order or requirement of a court,
administrative agency, other governmental body, or securities exchange.
- Disclaimer of Warranties
NAME.COM DOES NOT WARRANT THAT PERFORMANCE OF THE SERVICES OR USE OF THE TECHNOLOGY WILL BE UNINTERRUPTED, ERROR FREE, OR THAT IT WILL NOT BE NECESSARY FOR YOU TO PROVIDE NOTICE OF ERRORS TO YOUR CUSTOMERS.
You, at Your own expense, will indemnify, defend and hold harmless Name.com and its employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding based on or arising from any claim or alleged claim (i) arising from a breach by You of any covenant, representation or warranty in this RSA, including but not limited to the ICANN Obligations set forth in Section 5; (ii) relating to any product or service of Yours; (iii) relating to Your use of the Services; or (iv) relating to Your domain name registration and related service business, including, but not limited to, Your advertising, domain name application process, systems and other processes, fees charged, billing practices and customer service; provided, however, that in any such case: (a) Name.com provides You with prompt notice of any such claim, and (b) upon Your written request, Name.com provides You with all available information and assistance reasonably necessary for You to defend such claim, provided that You reimburse Name.com for actual and reasonable costs. You shall not enter into any settlement or compromise of any such indemnifiable claim without Name.com's prior written consent, which consent shall not be unreasonably withheld. You shall pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Name.com in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
- Limitation of Liability
A material provision of entering into this RSA is that Name.com's liability shall be limited as follows: In relation to each component of the Services for which a separate fee is charged, Name.com shall be liable in an amount no greater than the fees received by Name.com for performing the specific transaction(s) that gave rise to the liability. Name.com's aggregate liability for all claims of any sort shall not exceed the aggregate amount received by Name.com from You over the term of this RSA. Name.com shall not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration, or inadvertent disclosure of data, information, or content transmitted, received, or stored on its or any third party systems. With respect to passwords, account identifiers, and other systems used to control access to Your Account, it is Your responsibility to safeguard such passwords, account identifiers, and other systems used to control access to Your Account. As a service to You, Name.com may, but is not required to, take reasonable measures to verify the identity of parties who claim to have lost or forgotten passwords and/or account information and to then provide the information to such parties and that Name.com shall not be responsible to You for losses or claims for any inadvertent disclosure of
such passwords which may result thereby. Name.com is entitled to email passwords to designated email account(s), to phone designated phone numbers, or to employ security questions as a means to verify the identity of the party entitled to control Your account.
EXCEPT AS EXPRESSLY PROVIDED IN THIS RSA, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES, OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS RSA, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- Independent Contractors
The parties to this RSA are independent contractors and have no right or authority to bind or commit the other party in any way without the other party's express written authorization to do so. This RSA does not create an employer/employee, joint venture, partnership, or agency relationship between the parties.
During the term of this RSA and for seven (7) years thereafter, You must maintain (a) in electronic, paper, or microfilm form, all written communications constituting registration applications, confirmations, modifications, or terminations and related correspondence with Your customers, including registration contracts; and (b) in electronic form, records of the accounts of all Your customers, including dates and amounts of all payments and refunds in conjunction with domain name registrations. Upon request, You will provide any information identified in this Section 15 to Name.com within two (2) business days and otherwise cooperate with Name.com in any compliance, regulatory or legal issue arising out of the registration of domain names. Your failure to provide any such information to Name.com within two (2) business days or Your failure to provide such cooperation will be a material breach of this RSA.
You must not assign, transfer, or otherwise dispose of this RSA or any of Your rights, benefits, or interests under this RSA without prior written consent of Name.com, and any such assignment in violation shall be void. Name.com may also assign this RSA to a party which acquires the assets of Name.com which relate to performance of this RSA. Name.com may assign all or part of its rights and obligations under this RSA to its parent corporation, to a subsidiary, to its survivor in connection with a corporate reorganization, to any entity acquiring all or substantially all of its property, or to any entity into which it is merged or consolidated. No assignment of this RSA shall operate to discharge the assignor of any duty or obligations hereunder without prior written consent.
Unless specified otherwise, the fees for the Service do not include taxes. If Name.com is required to pay ICANN fees or United States or international sales, use, property, value-added ("VAT"), royalty, license or other taxes based on the licenses granted in this RSA or on Your use of the Services, then You must pay such taxes or fees. This section does not apply to taxes based on Name.com's income.
- Force Majeure
Neither party shall be in default or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with terms of this RSA (other than the obligation to make payments, which shall not be affected by this provision) due to any causes beyond its reasonable control, which causes include but are not limited to Acts of God or the public enemy; riots and insurrections; war; fire; strikes and other labor difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, components or machinery; acts of civil or military authorities; failure of telecommunications; or other casualty.
- Governing Law and Arbitration
This RSA shall be governed by the laws of the United States of America and the State of Washington, as if this RSA was a contract wholly entered into and wholly performed within the State of Washington. Any dispute, claim or controversy arising out of or relating to this RSA or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be determined by arbitration in King County, Washington, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Applicable Laws
You represent and warrant that You will comply with all applicable laws and regulations. Without limiting the generality of the foregoing, You represent and warrant that:
You will not act in any fashion or take any action that will render Name.com liable for a violation of any applicable anti-bribery regulation (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010);
You will comply with U.S. laws that prohibit or limit the ability of U.S. persons from directly or indirectly exporting or providing goods or services to certain persons or countries. You shall comply with all U.S. export regulations if shipping to another country, including licensing requirements.
- Additional Registry Requirements
You shall include in the Registration Agreement all terms and conditions required by the registries which you resell domain name registration services or other services for. Such terms and conditions can be found in Name.com's registration agreement.
The parties hereby incorporate the requirements of 41 CFR 60-1.4(a), 300.5(a) and 741.5, if applicable. This RSA, together with all modifications, constitute the complete and exclusive agreement between You and Name.com, and supersedes and governs all prior proposals, agreements, or other communications and is not intended to confer upon any person or entity other than Name.com and You any rights or remedies hereunder. The failure of us to require Your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this RSA shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this RSA unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.