SaaS RESELLER AGREEMENT
Effective Date: January 1, 2012
To review material modifications and their effective dates scroll to the bottom of the page.
THIS APPLICATION FOR ENROLLMENT AS A HILL TECH SERVICES, LLC ("HTS") AUTHORIZED RESELLER WHICH, IF ACCEPTED BY HTS, WILL BECOME A LEGALLY BINDING AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. HTS MAY ACCEPT OR REJECT THIS APPLICATION IN ITS SOLE DISCRETION.
The parties to this legal Agreement are you, and the owner of this Office365Training.com website business, HTS. If you are not acting on behalf of yourself as an individual, then "you", "your", and "yourself" means your company or organization or the person you are representing. All references to "we", "us", "our", "this website" or "this site" shall be construed to mean this Office365Training.com website business and HTS.
The legal Agreement between you and HTS consists of this Subscription Agreement, plus our Terms of Use and Privacy Policy which are incorporated herein and accessible on this site’s home page. If there is any conflict between this Subscription Agreement and the Terms of Use, this Subscription Agreement shall take precedence.
We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible on this page and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
1. Definitions.
1.1 "Web Services." Online training services that are accessible at the HTS Site through commercially available web browsers over the Internet. Web Services will be accessible by direct login to HTS’s web server. Web Services include any updates to such services that may be provided by HTS hereunder.
1.2 "HTS Site." The Internet website that is controlled and managed by HTS and/or its contractors and designated by HTS as the server for purposes of serving the Web Services.
1.3 "Internet Data Centers." Any of the facilities owned or controlled by HTS and used by HTS to provide the Web Services. These facilities house the HTS technology used for the provision of Web Services. All Internet Data Centers shall be located in the United States, unless with the prior written consent of Licensee.
1.4 "Branding Features." A party’s proprietary trade names, service marks, trademarks, logos, and indicia of origin and other distinctive branding features.
1.5 "Proprietary Materials." Materials to be delivered by one party to the other, or used by a party in connection with the delivery of services or the Web Services, or for the performance of obligations hereunder.
1.6 "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. Use License; Reservation of Rights to Contact End-Users.
2.1 Subject to the terms and conditions hereof, and only for term hereof, HTS hereby grants to Licensee the right and license to access and use the HTS Site for purposes of facilitating the distribution of Web Services to Licensee’s end-users.
2.2 HTS reserves the right to contact end-users directly under the following circumstances: (i) if Licensee affirmatively opts-out, meaning that Licensee clicks an opt-out button online when presented by HTS, or (ii) if Licensee has not distributed the Web Services to a new end-user for a consecutive three-month period regardless of whether the Licensee has opted out under Subsection (i) above.
3. Distribution License For Web Services. Subject to the terms and conditions hereof and only for the term hereof, HTS hereby grants to Licensee the worldwide right and license to market and distribute the Web Services only to end-users and only for purposes of use, and not to resellers for purposes of resale. End-users are required to enter into HTS’ [**Subscription Agreement**].
4. Contracting Procedures for End-Users. Licensee is authorized to offer and to enter into its own agreement with end-users for the purchase terms, pricing, and payment terms for the Web Services and the use of the Web Services by their personnel. In addition, Licensee shall require each end-user of the Web Services log into the HTS website and to enter into the Subscription Agreement attached as Exhibit C as a condition of authorization to use the Web Services. HTS will provide to Licensee tracking tokens for distribution to authorized end-users for purposes of tracking authorized use of the Services by end-user personnel.
5. Non-Exclusive Licenses. The licenses granted herein are non-exclusive. HTS may compete with Licensee, and HTS may grant licenses to third parties who may compete with Licensee, in connection with the Web Services.
6. Exclusive Dealing Restriction. During the term hereof, Licensee shall not distribute, or act as an agent or representative of any developer, publisher, or manufacturer, of online services or products that are functionally comparable or intended, by applicable marketing and promotional programs directed to such services or products, to compete directly with the Web Services.
7. Branding Requirements. Web Services will be branded with HTS Branding Features. All distribution rights and licenses granted herein for Web Services are subject to the forgoing branding requirement. All use of HTS Branding Features shall inure solely to the benefit of HTS. Licensee shall not (i) apply for registration of the HTS Branding Features (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the HTS Branding Features in any manner, or (iii) use any of the HTS Branding Features, except as expressly authorized herein or by prior written approval of HTS.
8. License Restrictions. Licensee shall not, nor shall it permit or assist others, (i) to modify or fraudulently use the Web Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use Web Services; or (iii) to access, alter, or destroy any information of any customer of HTS by any fraudulent means or device, or attempt to do so.
9. Reservation of Rights. All rights not expressly granted to Licensee herein are expressly reserved by HTS.
10. Set-Up of HTS Site And Web Services. In accordance with a mutually agreed-upon schedule, HTS will complete all tasks required to configure the HTS Site and to make the Web Services accessible to Licensee, including (i) delivering to Licensee any proprietary software and related documentation necessary to access and use the Web Services, and (ii) assigning all security access, passwords and user IDs necessary to access and use the Web Services.
11. Access Codes For Web Services. HTS will permit access to the Web Services only over the Internet using access codes assigned by HTS. Access codes will be deemed the Confidential Information of both parties.
12. Backups. At no additional charge to Licensee, HTS shall make daily incremental backups (the "Incremental Backup") and weekly full backups (the "Full Backups") of Customer Data archived with the HTS Technology. The prior day incremental backup and a copy of the weekly backup shall be stored off-site in a secure facility designed to store and maintain backups for emergency use. Upon storage of a weekly backup in the off-site facility, the prior weekly backup shall be made available to Licensee for by electronic delivery.
13. Monitoring of Licensee’s Use. HTS reserves the right to internally monitor Licensee’s usage of the HTS Site and Web Services.
14. Security.
14.1 Licensee shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet.
14.2 As part of the Web Services, HTS shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect customer data of Licensee’s users from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from the failure of HTS to perform the forgoing obligations, the parties agree that HTS shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to HTS at the time. HTS will promptly report to Licensee any unauthorized access to customer data promptly upon discovery by HTS, and HTS will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such customer data is required, Licensee shall be solely responsible for any and all such notifications at its expense.
15. HTS Site Operations. HTS shall undertake commercially reasonable efforts to operate and maintain its web servers that provide access to the Web Services sufficient for access twenty-four (24) hours per day, seven (7) days per week, except for routine maintenance. HTS shall monitor such servers and undertake commercially reasonable efforts to restore promptly all failures of service at HTS’s expense.
16. Marketing And Support Obligations. Each party shall perform the marketing and support obligations in accordance with Exhibit A attached.
17. Fees; Taxes.
17.1 Licensee shall pay to HTS fees as specified and agreed during the registration process after acceptance by HTS of your application to become a reseller. All fees and other charges that are due and payable by Licensee shall be: (i) only in U.S. currency payable through and drawn on a U.S. bank, and (ii) without withholding, deduction, or offset.
17.2 Licensee shall collect and pay when due all value–added, sales, use, property, and other taxes and charges imposed by any governmental authority, and Licensee shall indemnify and hold HTS harmless against such taxes and charges.
18. Licensee’s Resale Policies. Licensee is free to determine its own resale policies and pricing, and to distribute Web Services with or without consideration.
19. Limited Warranty. During the term hereof, HTS warrants that the Web Services shall conform to and operate substantially in accordance with documentation provided as part of the Web Services. LICENSEE'S SOLE AND EXCLUSIVE REMEDY AND HTS'S SOLE AND EXCLUSIVE LIABILITY FOR BREACH OF THIS WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF DEFECTIVE OR NON-CONFORMING WEB SERVICES.
20. Representations and Warranties; Indemnities.
20.1 Each of the parties represents and warrants to the other that: (i) each party has full legal right, power and authority to enter into and perform this Agreement (including all Exhibits hereto); (ii) the Web Services, HTS Site, Proprietary Materials, and any branding features of either party specified herein do not infringe or misappropriate any Proprietary Right of any third party, or constitute defamation, invasion of privacy, or violate the privacy rights of any third party; (iii) all Proprietary Rights or other rights in the Web Services, HTS Site, Proprietary Materials, and any branding features of either party specified herein are either owned by the providing party or are properly sublicensed from third parties granting such party the right to use same as contemplated hereunder; (iv) regarding the collection and use of end-user data, each of the parties represents and warrants to the other that neither party shall violate any rights of any person or entity, including, without limitation, rights of publicity, privacy or personality; and (v) any and all sublicenses granted by Licensee in connection with the Web Services shall be in compliance with the Sublicense Terms provided on Exhibit C.
20.2 Each party shall defend, indemnify and hold harmless the other, its affiliates, successors, assigns, officers, directors, and employees from and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys’ fees and expenses regardless of whether litigation was commenced) arising out of or in connection with a breach/untruth of any express representation and warranty made above in this Section (a "Claim"), provided that: (i) the indemnified party promptly notifies the indemnifying party in writing of the claim promptly upon the indemnified party becoming aware of such Claim; (ii) the indemnifying party shall have exclusive control of the settlement or defense of any action to which the Claim relates; and (iii) the indemnified party cooperates with the indemnifying party in every reasonable way to facilitate such defense or settlement. Once given notice of such Claim, if the indemnifying party does not defend any such Claim, the indemnified party may take any of the above actions and shall be fully indemnified by the indemnifying party.
21. Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH ABOVE, TO THE EXTENT ALLOWED BY LAW, EACH PARTY ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. NEITHER PARTY WARRANTS OR GUARANTEES THAT THE OPERATION OF THE HTS SITE OR THE LICENSEE SITE OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS AND WEB SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER PARTY GUARANTEES THAT DATA SUBMITTED OR HELD IN STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET WILL BE SECURE FROM UNAUTHORIZED ACCESS. FURTHER, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY THE OTHER PARTY, THAT NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND THAT NEITHER PARTY IS LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT WEB SERVICES, THE HTS SITE, OR THE LICENSEE SITE, OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT EXPRESSLY SET OUT HEREIN.
22. Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITIES AND OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23. Liability Cap. Except for indemnities and obligations regarding Confidential Information expressly provided herein, in no event shall the aggregate liability of the parties, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the following: (i) HTS’s maximum liability shall not exceed the total amount of royalties paid by Licensee to HTS hereunder during the six (6) months immediately preceding the claim, and (ii) Licensee’s maximum liability shall not exceed the total amount of royalties payable by Licensee to HTS hereunder during the six (6) months immediately preceding the claim.
24. Ownership of HTS Elements. Title to the Proprietary Rights embodied in the HTS Site, including without limitation, the Web Services, the Web Services content, and the proprietary materials and Branding Features originated or provided by HTS shall remain in and be the sole and exclusive property of HTS and/or its licensors.
25. Ownership of Licensee Elements. Title to the Proprietary Rights embodied in the proprietary materials and Branding Features originated or provided by Licensee, shall remain in and be the sole and exclusive property of Licensee and/or its licensors.
26. Unilateral Disclosure of Confidential Information By HTS. The parties anticipate that HTS may disclose confidential information to Licensee. For purposes hereof, "Confidential Information" means information of HTS or its customers (i) which relates to the Web Services and related business models and plans, and technical information and data of HTS or its customers or suppliers, including without limitation, Non-Public Personal Information (defined below), or (ii) which, although not related to the Web Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by HTS or its customers or an affiliate to Licensee in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Licensee within fifteen (15) days of the initial disclosure. "Non-Public Personal Information" means any of the following information accessible through or archived in connection with any website operated by or for HTS: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number. Licensee may use Confidential Information of HTS only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Licensee may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements sufficient to enable Licensee to enforce all the provisions of this Agreement. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Licensee at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Licensee; (iii) is received by Licensee from a third party free to disclose it without obligation to HTS; or (iv) is independently developed by Licensee without reference to Confidential Information.
27. Confidentiality of Web Services Software And Systems. Notwithstanding the forgoing, specifically regarding the software and systems that enable the Web Services, Licensee acknowledges HTS's claim that the software and systems that enable the Web Services embody valuable trade secrets proprietary to HTS. Accordingly, Licensee shall take reasonable measures to protect such software and systems, and the Web Services, from unauthorized access, disclosure, and use, including without limitation, the placement of any Proprietary Rights notice that is reasonably requested by HTS. Licensee shall not: (i) distribute, transfer, loan, rent, or provide access to the Web Services, except as provided herein; (ii) remove or add any Proprietary Rights notice associated with the Web Services without the express written permission of HTS; or (iii) disassemble or decompile the software and systems that enable the Web Services for any purpose.
28. Injunctive Relief. The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of Proprietary Rights would constitute irreparable harm, and that the aggrieved party shall be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.
29. Term of Agreement. The initial term of this Agreement shall commence as of the Effective Date hereof and shall continue for the period specified and agreed in the registration process after acceptance by HTS of your application to become a reseller. The initial term hereof shall automatically renew for successive one (1) year terms unless either party notifies the other in writing not less than ninety (90) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein.
30. Automatic Termination. Unless Licensee promptly after discovery of the relevant facts notifies HTS to the contrary in writing, this Agreement will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against Licensee, any assignment or attempted assignment by Licensee for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Licensee.
31. Termination for Cause.
31.1 Either party may terminate this Agreement and all rights granted herein for a material breach by the other party which remains uncured (i) for non-payment by you after (five (5) days from receipt of written notice from HTS, or (ii) if any exchange control authority or central bank imposes regulations effectively preventing Licensee from making required payments to HTS for a period in excess of thirty (30) days, and (ii) for other breaches for fifteen (15) days from receipt of written notice from the non-breaching party describing the nature of the breach HTS reserves the right to suspend access to the Web Services or terminate this Agreement immediately upon the failure to cure any such material breaches.
31.2 Notwithstanding the forgoing, Licensee acknowledges that strict compliance with all applicable laws (federal, state, and otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws, is a condition of remaining a party to this Agreement, and HTS reserves the right to suspend access to the Web Services or terminate this Agreement immediately upon notice to Licensee in the event of any violation by Licensee of such laws.
32. Effect of Expiration or Termination.
32.1 Upon the expiration or termination hereof, Licensee shall cease distribution of the Web Services. The expiration or termination hereof will not cause the rights of existing end-users to terminate, and HTS will assume responsibility for delivery of the Web Services to such end-users under terms and conditions that are mutually agreeable between HTS and the end-users.
32.2 The parties acknowledge that the provisions regarding expiration and termination are essential, fair, and reasonable, and that the occurrence of any of the events described herein shall constitute good, just, and sufficient cause for the termination or nonrenewal of this Agreement. The parties further acknowledge that any amounts spent in the performance of this Agreement shall be spent with the understanding that this Agreement may not be renewed. Accordingly, each party hereby waives any claim against the other for loss or damage of any kind (including, without limitation, damages or other compensation for unjust enrichment, loss of prospective profits, reimbursement for expenditures or investments made, or commitments entered into or goodwill), due to failure of the parties to renew this Agreement or upon expiration to make a similar agreement.
33. Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Bellevue, Washington, USA; however, the arbitration may proceed by telephone conference call or online. The arbitrator shall apply the laws of the State of Washington, to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Legal fees shall be awarded to the prevailing party in the arbitration.
34. Jurisdiction And Venue. The courts of King County in the State of Washington, USA and the nearest U.S. District Court in the State of Washington, USA shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.
35. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
36. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, Licensee shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without HTS’s prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
37. Continuing Obligations. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money to HTS hereunder.
38. Independent Contractors. The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Licensee shall have no authority to enter into agreements of any kind on behalf of HTS and shall not have the power or authority to bind or obligate HTS in any manner to any third party.
39. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
40. Compliance With Laws. Licensee agrees to obtain at its expense all necessary customs, import and other governmental authorizations and approvals, if any, that may be required (including, without limitation, foreign exchange, foreign investment and transfer of technology approvals) with respect to this Agreement. HTS’ obligations under this Agreement shall be subject to the grant and effectiveness of all such authorizations and approvals.
41. Conformity with Local Laws. The rights and obligations of the parties hereunder are subject to all applicable laws, orders and regulations of the various governmental authorities having jurisdiction over the parties. In the event that any of the foregoing shall result in a modification of this Agreement, either party may request that this Agreement be modified with respect thereto, to the mutual satisfaction of the parties, or either party may, in its sole discretion, terminate this Agreement.
42. Language. The governing language of this Agreement is expressly stipulated to be the English language. All materials and information to be provided hereunder shall be in the English language. In the event that any applicable law shall require this Agreement to be in a language other than the English language, Licensee shall promptly notify HTS and, subject to the provisions of this Agreement, shall undertake to comply therewith in a manner satisfactory to HTS.
43. Quebec. The parties hereto acknowledge that they have required the present Agreement and all documentation, notices, and legal proceedings entered into, given or instituted pursuant hereto, or relating directly or indirectly hereto, be drawn up in the English language. Quebec. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que tout document, avis et procédures judiciares qui pourront être exécuté, donnes ou intentés à la suite de, ou ayant un rapport direct ou indirect avec la présente convention.
44. Miscellaneous. This Agreement shall be construed under the laws of the State of Washington USA, without regard to its principles of conflicts of law. The parties exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods if otherwise applicable. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof.
EXHIBIT A
MARKETING AND SUPPORT OBLIGATIONS
1. HTS’s Obligations. HTS shall perform the following obligations at its cost and expense, unless otherwise indicated.
1.1 Technical Contact. Within five (5) days of the Effective Date, HTS shall appoint and notify Licensee of its technical contact. HTS’s technical contact shall coordinate all technical issues on behalf of HTS which arise out of this Agreement.
1.2 Location of Services. All services hereunder shall be performed at HTS’s facilities or at the facilities of the HTS Site, unless otherwise agreed in writing by HTS.
1.3 Deliverables. Promptly after the Effective Date, HTS shall transmit to Licensee the following deliverables: (i) Licensee user identification and password codes, (ii) sample web pages, and (iii) technical specifications and instructions to access and distribute the Web Services.
1.4 Implementation Consulting Services. HTS shall provide implementation consulting services to Licensee by telephone.
1.5 Updating of Web Services. HTS shall provide to Licensee all updates of Web Services functionality that HTS generally releases to other Resellers.
1.6 Second Line Technical Support. HTS shall be responsible for second line technical support. If Licensee has questions about the Web Services, or believes that any Web Services do not conform to all of the requirements of this Agreement, Licensee may notify HTS by telephone or through HTS’s designated electronic mail support address. HTS shall assign HTS support contacts to staff such support lines and electronic mail at least from 9:00 a.m. to 5:00 p.m., Pacific time, Monday through Friday, excluding national holidays. HTS will maintain a sufficient number of HTS support contacts to ensure prompt responses to calls from Licensee. HTS will use its best efforts to answer questions and correct reported errors that are reproducible and caused by HTS (or to provide suitable temporary solutions or workarounds for errors) during the initial response. If Licensee states that the reported error is substantial and material to the use of the Web Services, or that the reported error causes the Web Services to be inoperable, HTS will use its best efforts to correct the error, within a commercially reasonable time after HTS’s initial response. The technical support services provided herein shall be provided without additional charge.
1.7 Publicity. HTS shall not use the name of Licensee in publicity releases, advertising, or similar activity without the prior written consent of Licensee which shall not be unreasonably withheld or delayed, except that Licensee will permit HTS to include Licensee's name in its customer/partner lists and to make a routine initial public announcement of the execution of this Agreement.
2. Licensee’s Obligations. Licensee shall perform the following obligations at its cost and expense, unless otherwise indicated.
2.1 Technical Contact. Within five (5) days of the Effective Date, Licensee shall appoint and notify HTS of its technical contact. Licensee’s technical contact shall coordinate all technical issues on behalf of Licensee which arise out of this Agreement.
2.2 General Obligation to Market and Promote. Licensee shall undertake commercially reasonable efforts to market and promote the Web Services.
2.3 Use of Keywords In Search Engine Optimization And Online Advertising. Licensee is not authorized to purchase or register any keywords, search terms or other identifiers that include any principal words in our tradename, domain name, or any of our trademarks or logos, or any variation thereof ("Proprietary Terms") for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service. From time to time, HTS may request that Licensee cause any applicable web search provider to exclude Proprietary Terms from keywords used to display Licensee’s advertising content in association with search results, assuming the provider of such web search engine offers such exclusion capabilities. If HTS determines, in HTS’s sole discretion, that Licensee has engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request to exclude Proprietary Terms from any keyword as provided above, HTS may (without limiting any other rights or remedies available to HTS) suspend Licensee’s access to the Web Services and/or terminate this Agreement for material breach.
2.4 No-Spam Policy. Licensee may engage in general email promotions; provided, however, that as a condition of Licensee’s grant of rights as a reseller, Licensee agrees to comply strictly with HTS's policy of not sending any bulk, unsolicited emails. Our No-Spam Policy is more restrictive than the provisions of the U.S. CAN-SPAM Act of 2003 which allows bulk, unsolicited emails subject to certain conditions. Our Policy is based on a careful review of numerous ISP acceptable use policies (that the CAN-SPAM Act of 2003 does not affect), most of which do not permit bulk, unsolicited mails under any conditions. Accordingly, the only bulk emails that are authorized under HTS's No-Spam Policy are emails to recipients who opted into Licensee’s email list. In addition to the foregoing, Licensee agrees to comply strictly with all other applicable laws (federal, state, and otherwise) that govern marketing email. Violation of HTS‘s No-Spam Policy or any of these laws will constitute a material breach of this Agreement. Licensee agrees to defend and indemnify HTS from and against any claim by a third party in connection with Licensee’s failure to comply with HTS‘s No-Spam Policy.
2.5 Privacy Policy. Licensee agrees to provide and maintain in its online privacy policy clear, concise, and easy-to-read disclosures of the sharing of personal transaction information with HTS incident to this Agreement. Licensee agrees to modify its online privacy policy regarding such disclosures promptly after receipt of a written request from HTS.
2.6 Federal Trade Commission Rules Regarding Truthful and Non-Deceptive Advertising. The Federal Trade Commission (FTC) and various state laws prohibit advertising that is false or misleading. Accordingly, Licensee is required to substantiate Licensee’s advertising claims prior to dissemination to state these claims in clear language that is both true and also not misleading. Licensee agrees to comply strictly with all FTC and state law requirements in Licensee’s marketing activities. Refer to the following FTC publications for guidance: (i) Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf), and (ii) Advertising and Marketing on the Internet: Rules of the Road
(http://ftc.gov/bcp/edu/pubs/business/ecommerce/bus28.shtm). Licensee may also contact HTS if you have questions regarding these requirements.
2.7 Consent to Release of Information. Licensee agrees that HTS may provide information about Licensee’s relationship with HTS (i) to any governmental or regulatory agency that is investigating Licensee’s affiliate marketing methods, procedures, or communications, and (ii) to any private person or organization which we believe may have a good faith claim based on Licensee’s marketing methods, procedures, or communications.
2.8 First Line Technical Support. Licensee is solely responsible for providing first line support of end-users of the Web Services. Licensee shall instruct all end-users to make all inquiries regarding support directly to Licensee.
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Material Modifications Since January 1, 2012: none.