YOU, A ‘WEB HOST’ (ALSO REFERRED TO HEREIN AS ‘PARTNER’) MUST READ AND ACCEPT THIS VERISIGN WEB HOST CHANNEL PARTNER AGREEMENT (‘AGREEMENT’) BEFORE ENROLLING FOR VERISIGN CERTIFICATES AND SEALS (‘SERVICES’) ON BEHALF OF YOUR WEB HOST CUSTOMERS ( ‘CUSTOMERS’). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, ACCEPT, ENROL, APPLY FOR, USE OR DISTRIBUTE VERISIGN CERTIFICATES AND SEALS, AND CLICK ON THE ‘I DECLINE’ BUTTON AT THE END OF THIS AGREEMENT.
BY CLICKING ON THE ‘I ACCEPT’ BUTTON AT THE END OF THIS AGREEMENT YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS. Capitalised terms used and not otherwise defined in this Agreement or the Schedules hereto shall have the meanings shown in Exhibit A.
2. APPOINTMENT AS CHANNEL PARTNER. VeriSign hereby appoints Partner as a non-exclusive, world-wide channel partner for the Services offered through the VeriSign ISP Centre.
3. PARTNER OBLIGATIONS.
3.1.1 Resale Process. Subject to the terms and conditions of this Agreement, Partner shall purchase through the VeriSign ISP Centre Tokens for the applicable Services (individually known as ‘Certificate Tokens’ and ‘Seal Tokens’, and collectively known as ‘Tokens’) and resell such Tokens to Customers, for subsequent redemption therein by Partner on behalf of such Customers. Partner shall require Customers to enter into an agreement with it (the ‘Customer Agreement’) prior to distributing any Tokens to them.
3.1.2 Customer Agreement. Each Customer Agreement shall, at a minimum (a) designate Partner as the entity responsible for invoicing and collecting payments from Customer and (b) require Customer to agree to contractual terms applicable to their purchase and use of Services as specified by VeriSign (‘Pass Through Terms’). The current Pass Through Terms are attached hereto as Exhibit B. VeriSign may modify the Pass Through Terms from time to time and Partner agrees to provide such new terms to new Customers. Partner may not modify, or allow any prospective Customers or other third party to modify, any provision of the Pass Through Terms without VeriSign's express written consent.
3.2.1 Partner Efforts. Partner shall use commercially reasonable efforts to market and promote the Services to Customers.
3.2.2 Partner Expertise. Partner shall be responsible for being knowledgable about the Services and the technical aspects and language related thereto.
3.3.1 Enrolment for Services. Partner shall apply for the Services through the VeriSign ISP Centre on behalf of Customer by either (i) submitting to VeriSign the Customer's Token and personally identifiable information, a Certificate Signing Request (‘CSR’) and, where applicable, its own technical information, and agreeing to the applicable Pass Through Terms (for Certificates), or (ii) agreeing to the applicable Pass Through Terms (for Seals).
3.3.2 Deployment of Services. Upon receiving email instructions to Deploy Customer's Service from VeriSign, Partner shall promptly do so on the Server that created the CSR, using the URL and password supplied to Partner by VeriSign.
3.3.3 First Tier Support. Partner shall provide Customers with first tier support, including, but not limited to, resolution of pre-sales questions, set-up, integration and post-sale inquiries, basic integration support, problem screening and basic diagnostics.
3.3.4 Renewal. Partner shall use commercially reasonable efforts to send renewal notices to Customers who have Deployed Services within ten (10) business days after receiving renewal notices from VeriSign.
3.3.5 Revocation. If a Customer requests Partner to revoke its Service, Partner shall submit a revocation or termination request to VeriSign. If Partner becomes aware that a Customer's organisational name and/or domain name registration has changed or that a Customer has materially breached its obligations under a Customer Agreement or the Pass Through Terms, Partner shall notify VeriSign of such change or breach, and VeriSign may revoke Customer's Service. VeriSign may also revoke a Customer's Service if Partner is in material breach of its obligations under this Agreement or any applicable Subscriber Agreement. Upon expiry or revocation of a Service, Partner shall permanently remove the applicable Certificate and/or Seal from the Server on which it is installed and shall not use it for any purpose thereafter: provided, however, that in the event Partner has purchased other VeriSign services that would permit it to post the Seal, it shall be entitled to do so under the terms of the applicable services agreement. In order to maintain the trust and integrity of the VTN, VeriSign, at its sole discretion, retains the right to revoke a Customer's Service for activities that VeriSign considers harmful to the VTN.
3.4.1 Partner Covenants. Partner will (i) conduct business in a manner that reflects favourably at all times on the Services and the good name, goodwill and reputation of VeriSign; (ii) avoid deceptive, misleading or unethical practices which are or may be detrimental to VeriSign, the Services or the public; (iii) make no false or misleading representations with regard to VeriSign or the Services; (iv) not publish or employ, or co-operate in the publication or employment of, any misleading or deceptive advertising material with regard to VeriSign or the Services; (v) promote proper use of the Service; (vi) make no representation, warranties or guarantees to Customers or to other third parties with respect to the specifications, features or capabilities of the Service inconsistent with the literature distributed by VeriSign; and (vii) use Shared Hosting Security Service Certificates for internal purposes only and not for resale to Customers.
3.4.2 Compliance with Laws and Government Approvals. Partner will comply with all applicable international, national, state, regional and local laws and regulations, and will obtain whatever governmental approvals are necessary, in connection with performing its duties hereunder. VeriSign will be under no obligation to provide any Services if VeriSign is not satisfied, at its sole discretion, that such laws are being complied with and that such government approvals have been obtained.
3.4.3 Token Redemption Period. Tokens must be redeemed within one (1) year after the date Partner purchases them or they shall be deemed null and void and VeriSign shall not redeem them.
3.4.4 Service Validity Period. Upon redemption of a Token for a Service within the Token Redemption Period, the Service shall be valid for the validity period stated therein, unless terminated earlier pursuant to Section 11 hereof.
3.4.5 Customer Disqualification. Notwithstanding any other provision of this Agreement, in the event Customer breaches its obligations under a Customer Agreement or Pass Through Terms, VeriSign may, at its discretion, cease providing the Service in whole or in part to such Customer and may revoke any existing Service.
4. VERISIGN OBLIGATIONS.
4.1 Access to VeriSign ISP Centre. VeriSign shall provide Partner with a user name and password to access the VeriSign ISP Centre for the purpose of (i) purchasing Tokens for resale; (ii) redeeming and applying for Services on behalf of Customers; and (iii) deploying Services on behalf of Customers.
4.2 Deployment of Services. VeriSign shall email the deployment instructions for the applicable Service to Partner upon VeriSign's Authentication of the applicable Certificate Application Request.
4.3 Renewal Notices. VeriSign shall use commercially reasonable efforts to notify Partner of the expiry of any Services of Partner's Customers at least thirty (30) days before the expiry thereof.
4.4 Technical Support. VeriSign shall provide Partner with the following support:
4.4.1 Monday to Friday between 0500 and 1700 (excluding VeriSign holidays) standard telephone support;
4.4.2 Within twenty-four (24) hours of receipt of an email from Partner, an email response addressing the issue therein;
4.4.3 Twenty-four (24) hour access to support pages on VeriSign's Web Site; and
4.4.4 At VeriSign's discretion, an Account Manager or the equivalent thereof for sales and marketing support for Partner.
5. FEES AND TAXES
5.1 Fees. Unless otherwise agreed, Partner shall pay VeriSign the then applicable fees for Tokens purchased by Partner in respect of Services as set forth in the VeriSign ISP Centre for any Services ordered.
5.2 Payment Terms. All fees are immediately due and payable upon purchase of the Tokens and are non-refundable, except as otherwise expressly noted herein. Any renewal of Services is subject to VeriSign's then current terms and conditions, including, but not limited to, successful completion of any applicable Authentication procedure, and payment of the then current fees. Partner is solely responsible for the credit card details provided to VeriSign and must promptly inform VeriSign of any changes thereto (eg, change of expiry date or account number). All sums due and payable that remain unpaid for a period of thirty (30) days will accrue interest at a rate of 1.5% per month or the maximum amount allowed by law, whichever is less.
5.3 Costs and Expenses. Except as expressly provided herein or agreed to in writing by VeriSign and Partner, each party shall pay its own costs and expenses incurred in the performance of its obligations under this Agreement.
5.4 Price Changes. VeriSign reserves the right to change the fees for Services at any time. VeriSign shall use commercially reasonable efforts to provide Partner with thirty (30) days prior notice of any change, but such changes shall not require Partner's approval.
5.5 Taxes. Partner shall pay, indemnify and hold VeriSign harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on VeriSign's income, and (ii) all government permit fees, customs fees and similar fees which VeriSign may incur with respect to this Agreement. Such taxes, fees and duties paid by Partner shall not be considered a part of, a deduction from, or an offset against, payments due to VeriSign hereunder. Partner will pay any withholding taxes required by applicable law. Partner will supply VeriSign with evidence of such payment of withholding tax, in a form acceptable to VeriSign to meet the requirements for claiming foreign tax credits on VeriSign's United States federal income tax return. It is the intent of the parties that, after Partner pays all taxes, fees, duties and withholding amounts, Partner shall pay VeriSign an amount which, after payment of all required taxes, fees, duties and withholding, equals the amount due under this Agreement.
5.6 Partner Prices. Partner shall be solely responsible for determining its prices for the provision of the Tokens for Services to Customers and invoicing and collecting such fees.
5.7 Reporting, Inspections, and Audits. Partner shall monitor, record, and keep reports of the number of Customers using Certificates and Seals (and of the number of Certificates and Seals being used) and shall provide VeriSign with copies of such reports upon VeriSign's reasonable request. VeriSign shall also have the right to inspect Partner procedures for maintaining records related to its obligations under this Section, and to audit such records during normal business hours and at VeriSign's expense. Partner will co-operate with such inspections and/or audits, which shall be conducted no more frequently than once annually. In the event the amount of fees found to be due under this Agreement is greater than the amount that has been previously paid, Partner shall immediately pay the shortfall. In the event the shortfall is in excess of five per cent (5%) of fees previously paid, Partner shall reimburse VeriSign for its inspection and audit fees, if any.
6. CONFIDENTIALITY AND PRIVACY
6.1.1 Confidential Information. The parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire knowledge from material, data, systems and other information concerning the operation, business, projections, market goals, financial affairs, products, services, customers and Intellectual Property Rights of the other party that may not be accessible or known to the general public (‘Confidential Information’). Confidential Information shall include, but not be limited to, (i) the terms of this Agreement, and (ii) any information which concerns technical details of operation of any of the Services.
6.1.2 No Disclosure. Each party receiving Confidential Information (the ‘Receiving Party’) agrees to maintain all such Confidential Information received from the other party (the ‘Disclosing Party’), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the financial terms of this Agreement to its legal and business advisers and to potential investors, and VeriSign may disclose to its third party service partners those terms of this Agreement relating to the data or service provided by such partners, if such third parties agree to maintain the confidentiality of such Confidential Information. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing this Agreement. In addition, the Receiving Party shall not reverse engineer (save to the extent that it cannot be prohibited from so doing under applicable law), disassemble or decompile any prototypes, software or other tangible objects which embody Confidential Information and which are provided to the Receiving Party hereunder. Upon termination or expiry of this Agreement, the Receiving Party shall immediately return to the Disclosing Party all manifestations of the Confidential Information or, at the Disclosing Party's option, shall destroy all such Confidential Information as the Disclosing Party may designate; provided that such action may be delayed for so long as, and to the extent that, such Confidential Information relates to outstanding payment obligations or is subject to audit, reporting, or retention requirements under this Agreement or applicable law.
6.1.3 Exclusions. The Receiving Party's obligations under Sections 6.1.1 and 6.1.2 above shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (ii) was rightfully in the Receiving Party's possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure, is rightfully obtained by the Receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction; (iv) is independently developed by the Receiving Party without resort to the Disclosing Party's Confidential Information; or (v) is required by law or judicial order, provided that prior written notice of such required disclosure is furnished to the Disclosing Party as soon as practicable, and prior to disclosure occurring, in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent such disclosure, and that if such order or remedy cannot be obtained, disclosure may be made without liability.
6.1.4 Injunctive Relief. Both parties acknowledge that the restrictions contained in this Section 6 are reasonable and necessary to protect their legitimate interests and that any violation of these restrictions will cause irreparable damage to the other party. Each party agrees that damages are not an adequate remedy for any such violation and that the other party will be entitled to seek injunctive relief against each violation.
6.2 Privacy. Partner acknowledges and agrees that:
6.2.1 In the course of providing the Services, VeriSign will capture personally identifiable information of Partner and its Customers (collectively, the ‘Data’). VeriSign shall capture only the Data that is required and necessary for VeriSign to provide the Services. VeriSign shall use the data as disclosed in its Privacy Statement located on its Web site.
6.2.2 VeriSign may place in Certificates information provided by Partner or Customer for inclusion in the Certificates.
6.2.3 VeriSign may publish Certificates and status information about such Certificates in VeriSign's Repository of Certificate information and make this information available to the public and other repositories.
6.2.4 If you are a customer of a VeriSign entity that is not VeriSign, Inc., you acknowledge that VeriSign may transfer the Data to VeriSign, Inc. in the United States for processing of Certificates.
6.2.5 All Data submitted to VeriSign by Partner is provided in accordance with applicable data protection laws, and Partner warrants to VeriSign that it has all necessary rights and has obtained all necessary consents from each of its respective Customers to provide the Data to VeriSign in accordance with this Agreement and for VeriSign to receive and process the Data as set forth in this Agreement and the VeriSign Privacy Statement.
6.2.6 VeriSign's Secured Partner Programme is a programme that permits certain trusted portal partners of VeriSign to indicate on a Web site, in a software application, or by other mechanism by use of an icon or otherwise (as specified by VeriSign) that a listed Web site uses a VeriSign service. In order for the portal partners to know which Web sites are VeriSign customers, VeriSign will periodically share with these portal partners a list of VeriSign customer Web sites (the ‘VeriSign Secured Site Listing’). Partner further acknowledges and agrees that (i) it shall be public information that it and its Customers are purchasers of the Service; and (ii) VeriSign may make reference to it and its Customers' Web site address in the VeriSign Secured Site Listing and may provide such VeriSign Secured Site Listing to any VeriSign portal partner requesting the same; provided, however, that (a) the VeriSign portal partner must have agreed to use the VeriSign Secured Site Listing only to indicate that the referenced Web site utilises one or more VeriSign services, and (b) at any time, it or its Customers may decide not to be included in the VeriSign Secured Site Listing and may notify VeriSign of such fact by following the instructions provided on the VeriSign Web site.
7. LICENCES TO MATERIALS
7.1 Sales and Marketing Materials. VeriSign grants Partner the non-exclusive, non-transferable, non-sublicensable right and licence to: (a) use the VeriSign Materials during the term of this Agreement solely in conjunction with the marketing, promotion and resale of the Services, and (b) to modify certain of the VeriSign Materials expressly designated for such purpose by incorporating Partner trademarks and/or brand features (‘Partner Branding’) in a manner consistent with branding guidelines to be provided by VeriSign. All such modified materials will be deemed VeriSign Materials under this Agreement. Partner agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of the VeriSign Materials or any other materials, trademark, trade name or product designation belonging to or licensed to VeriSign.
7.2 No Confusing Use. During the term of this Agreement, Partner agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of VeriSign.
7.3 No Continuing Rights. Upon expiry or termination of this Agreement, Partner will immediately cease all display, advertising and use of all the VeriSign Materials and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any VeriSign Materials (excluding Partner Branding) or with any other materials, trademark, trade name or product designation associated with VeriSign.
7.4 Translated Versions. In addition to the licences granted above, VeriSign hereby grants Partner the non-exclusive, non-transferable, non-sublicensable (except as set forth herein), right and licence to translate certain of the VeriSign Materials into local language(s) (‘Translated Versions’), and to use such Translated Versions solely in substitution for or along with the corresponding un-translated versions. All references to Translated Versions will be exclusive of any Partner Branding. Any such Translated Versions are the property of VeriSign and VeriSign shall hold all right, title and interest in such Translated Versions.
7.4.1 Assignment of Translated Versions. Partner hereby assigns and agrees to assign to VeriSign with full title guarantee any and all right, title and interest (including copyright) Partner may have in the Translated Versions, and all portions and copies thereof in any form.
7.4.2 Moral Rights Waiver. If despite Partner's desire that all rights to Translated Versions vest automatically in VeriSign, it is determined that Partner or its employees or agents retain moral rights in Translated Versions, Partner hereby declares on its own behalf and on behalf of its employees and agents that: (1) it does not wish its name to be used in connection with the Translated Versions or any derivative works of or upgrades or updates thereto; (2) it shall have no objection to publication and use of the work in the manner described in this Agreement; (3) it permanently waives and agrees not to claim or assert its or their entitlements to any and all moral rights of an author in any works developed by it, him or her as provided for by applicable laws in force in each applicable jurisdiction; (4) it permanently releases VeriSign and its successors and assigns from any claims that Partner could otherwise assert against VeriSign by virtue of any such moral rights; and (5) it shall obtain equivalent warranties to those set out in this Section 7.4.2 from any employee or agent used in the production of any Translated Version.
7.4.3 Exclusive Worldwide Licence. Notwithstanding the foregoing, in the event that, by operation of law, Partner is deemed to have retained rights in any portion of a Translated Version, Partner grants to VeriSign, its successors and assigns, an exclusive, perpetual, irrevocable, worldwide assignable paid-up licence to use the Translated Versions, and all inventions, designs and marks embodied therein.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Ownership. Other than the express licences granted by this Agreement, VeriSign grants no right or licence to Partner by implication, estoppel or otherwise to the Services, the VeriSign Materials, or any Intellectual Property Rights of VeriSign. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of VeriSign, in the Services and the VeriSign Materials, excluding Partner Branding) and all Intellectual Property Rights therein, subject only to the rights and licences specifically granted herein.
8.2 Derivative Work. To the extent that Partner creates any Derivative Work (any work that is based upon one or more pre-existing versions of a work provided to Partner, such as an enhancement or modification, revision, translation, abridgment, condensation, expansion, collection, compilation or any other form in which such pre-existing works may be recast, transformed or adapted) such Derivative Work shall be owned by VeriSign and all right, title and interest in and to each such Derivative Work shall automatically vest in VeriSign. To the extent any Derivative Work does not automatically vest in VeriSign by operation of law, Partner hereby assigns such Derivative Work to VeriSign with full title guarantee. VeriSign shall have no obligation to grant you any right in any such Derivative Work. Partner shall not reverse engineer (save to the extent that it cannot be prohibited from so doing under applicable law), disassemble or decompile the VeriSign Intellectual Property or make any attempt to obtain source code to the VeriSign Intellectual Property.
8.3 Obtaining Rights. VeriSign (and not Partner) shall have the sole right, but not the obligation, to pursue copyright and patent protection, at its sole discretion, for the Services, the VeriSign Materials (excluding Partner Branding), and any Intellectual Property Rights incorporated therein. Partner will co-operate with VeriSign in pursuing such protection, including, without limitation, executing and delivering to VeriSign such instruments as may be required to register or perfect VeriSign's interests in any Intellectual Property Rights and any assignments thereof.
8.4 Pursuit of Infringers. Partner shall notify VeriSign of infringements of VeriSign's Intellectual Property Rights of which Partner becomes aware. Partner shall reasonably assist VeriSign in pursuing VeriSign's legal rights against any such infringers. VeriSign, at its sole discretion, shall determine whether to pursue any particular case of infringement.
8.5 Proprietary Markings and Copyright Notices. Partner shall not remove or destroy any proprietary, confidentiality, trademark, service mark or copyright markings or notices placed on or contained in any materials or documentation received from VeriSign in connection with this Agreement.
9.1 Partner Indemnity. Partner shall indemnify VeriSign and/or any of its directors, officers, agents, employees, contractors, parent companies, affiliates and/or subsidiaries against any claim, suit or proceeding by a third party based on or arising out of (i) Partner's breach of this Agreement; (ii) Customer' breach of the Pass Through Terms; or (iii) VeriSign's revocation of a Service pursuant to Section 3.3.5.
9.2 VeriSign Indemnity. VeriSign shall indemnify Partner and/or any of its directors, officers, agents, employees, contractors, parent companies, affiliates and/or subsidiaries against any claim, suit or proceeding by a third party based on or arising out of VeriSign's breach of this Agreement.
9.3 Notices and Indemnities. Subject to the limitations set forth herein, the indemnifying party (the ‘Indemnifying Party’), at its own expense, shall (a) defend, or at its option settle, any claim, suit or proceeding against the other party (the ‘Indemnified Party’) for which it has an indemnification obligation under this Agreement, and (b) pay any final judgment entered or settlement against the Indemnified Party in any such suit or proceeding defended by the Indemnifying Party. An Indemnifying Party shall not take any action to settle or defend any such claim, suit or proceeding that would in any manner impose obligations (monetary or otherwise) on an Indemnified Party without the Indemnified Party's written consent, not to be unreasonably withheld. An Indemnified Party shall have the right to participate in the defence of any claim with its own counsel and shall be responsible for all costs associated therewith. An Indemnifying Party shall have the right to control and direct the investigation, preparation, defence and settlement of the claim, and the Indemnified Party shall reasonably co-operate with the Indemnifying Party in the defence of such claim at the Indemnifying Party's expense. In addition, an Indemnified Party shall give the Indemnifying Party prompt written notice of any claim, suit or proceeding for which the Indemnifying Party has an indemnification obligation under this Agreement. In the event such notice is not promptly given, the Indemnifying Party's obligation hereunder shall not include any additional expenses or damages to the extent attributable to such failure or delay of notice.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
10.1 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED HEREIN OR IN THE SUBSCRIBER AGREEMENT OR PASS THROUGH TERMS, THE SERVICES ARE PROVIDED ‘AS IS’ WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION WHATSOEVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, VERISIGN DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, TERMS AND CONDITIONS, IMPLIED OR STATUTORY, TO PARTNER OR CUSTOMER AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10.2 LIMITATION OF LIABILITY.
10.2.1 NOTHING IN THIS AGREEMENT SHALL LIMIT VERISIGN'S LIABILITY FOR FRAUD OR PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE.
10.2.2 SUBJECT TO SECTION 10.2.1, VERISIGN SHALL NOT BE LIABLE TO PARTNER OR TO ANY CUSTOMER OR ANY OTHER THIRD PARTY, FOR ANY A) CONSEQUENTIAL OR INDIRECT LOSS; B) SPECIAL, INCIDENTAL, RELIANCE OR EXEMPLARY DAMAGES; OR C) ANY LOSS OF PROFIT, BUSINESS CONTRACTS, REVENUE, DATA OR ANTICIPATED SAVINGS, IN EACH CASE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE VERISIGN PRODUCTS AND SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOuR CLAIMS), EVEN IF VERISIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO SECTION 10.2.1, UNDER NO CIRCUMSTANCES SHALL VERISIGN'S TOTAL LIABILITY TO PARTNER, ANY CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TWO (2) TIMES THE AMOUNTS PAID BY PARTNER UNDER THIS AGREEMENT UP TO A MAXIMUM OF ONE MILLION US DOLLARS (US$1,000,000.00). VERISIGN'S LIABILITY TO CUSTOMERS AND OTHER THIRD PARTIES IS LIMITED AS SET FORTH IN THE APPLICABLE PASS THROUGH TERMS AND/OR SUBSCRIBER AGREEMENT.
11. TERM AND TERMINATION
11.1 Term and Termination. The term of this Agreement shall commence on the date Partner clicks the ‘I ACCEPT’ button (‘Agreement Effective Date’) and will continue for successive terms of one (1) year, unless earlier terminated in accordance with the terms of this Agreement.
11.2 Termination for Convenience. Either party shall be entitled to terminate this Agreement for convenience upon thirty (30) days prior written notice to the other.
11.3 Effect of Termination. Upon the expiry or termination of this Agreement, Partner shall cease selling, marketing, promoting, purchasing and using the Services. Any expiry or termination shall not discharge any party's accrued obligation(s) and Partner may invoice and/or collect payment from Customers who have outstanding balances with Partner. Expiry or termination of this Agreement for any reason shall not affect any Customer Agreement and VeriSign shall continue to support the Services that have been purchased before the termination date for the validity periods thereof, provided that, upon termination, Partner is not in breach of this Agreement or Customer is not in breach of the Customer Agreement or Pass Through Terms.
11.4 Survival of Terms. Expiry or termination of this Agreement shall not relieve either party of any obligations that accrue prior to the date of such expiry or termination. The provisions of Sections, 1, 3.3, 3.4, 4.2 - 4.4, 5.1 - 5.3, 5.5, 5.7, 6, 8, 9, 10, 11.3, 11.4, 12 and Exhibits A and B, shall survive the expiry or termination of this Agreement for any reason.
12. MISCELLANEOUS PROVISIONS
12.1 Governing Law. This Agreement shall be governed in all respects by and construed in accordance with the laws of the State of California, USA (irrespective of its choice of law principles). The parties agree that the United Nations Convention on Contracts For the International Sale of Goods shall not apply to this Agreement.
12.2 Dispute Resolution. To the extent permitted by law, before you may invoke any dispute resolution mechanism with respect to a dispute involving any aspect of this Agreement, you shall notify VeriSign and any other party to the dispute for the purpose of seeking dispute resolution. If the dispute is not resolved within sixty (60) days after the initial notice, then a party may proceed in accordance with the following:
(i) When each party to the dispute is a Canadian or US resident or organisation situated or doing business in Canada or the United States. All suits to enforce any provision of this Agreement or arising in connection with this Agreement shall be brought in the United States District Court for the Northern District of California or the Superior or Municipal Court in and for the County of Santa Clara, California, USA. The parties agree that such courts shall have exclusive in personam jurisdiction and venue and the parties submit to the exclusive in personam jurisdiction and venue of such courts. The parties further waive any right to a jury trial regarding any action brought in connection with this Agreement.
(ii) Where one or more parties to the dispute is not a Canadian or US resident or organisation situated or doing business in Canada or the United States. All disputes arising in connection with this Agreement shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) as modified as necessary to reflect the provisions herein by one or more arbitrators. The place of arbitration shall be in Geneva, Switzerland, and the proceedings shall be conducted in English. In cases involving a single arbiter, that single arbiter shall be appointed by mutual agreement of the parties. If the parties fail to agree to an arbiter within fifteen (15) days, the ICC shall choose an arbiter knowledgable in computer software law, information security and cryptography or otherwise having special qualifications in the field, such as a solicitor, academician or judge in common law jurisdiction. Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of this dispute as is necessary to protect either party's name, proprietary information, trade secret, know-how or any other intellectual property rights.
12.3 Binding upon Successors and Assigns. Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and assigns of the parties hereto. This Agreement or any part of it shall not be assignable by Partner without the prior written authorisation of VeriSign, which shall not be unreasonably withheld. Any purported assignment in violation of the foregoing provisions shall be void and of no effect and shall permit VeriSign to terminate this Agreement. Partner may not subcontract or otherwise delegate its obligations under this Agreement without VeriSign's prior written consent.
12.4 Independent Contractors. The relationship of VeriSign and Partner is that of independent contractors. Neither Partner nor Partner's employees, consultants, contractors or agents are agents, employees, consultants, contractors or partners of VeriSign, nor do they have any authority to bind VeriSign by contract or otherwise to any obligation.
12.5 Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall continue in effect and be interpreted to best give effect to the intent of the parties hereto. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
12.6 Entire Agreement. This Agreement and the Exhibits hereto constitute the entire understanding and agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous oral or written agreements or understandings or representations between the parties. The parties agree that they have not entered into this Agreement in reliance on any representations not expressly set out in this Agreement and neither party shall have any liability in relation to such representations, unless made fraudulently.
12.7 Amendment and Waivers. Except as otherwise expressly provided in this Agreement, any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound.
12.8 Solicitors’ Fees. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable solicitors' fees (including fees on any appeal).
12.9 Notices. All notices that either party is required or may desire to serve upon any other party shall be in writing and addressed to the party to be served at the respective addresses set forth below. Any such notice may be served personally or by certified post (postage prepaid), internationally commercially recognised overnight delivery service (such as Federal Express or DHL), or courier. Notice shall be deemed served upon personal delivery or delivery by courier, upon the second business day after the date sent for notices sent via overnight delivery, or upon the third business day after the date sent for notices sent via certified post. Either party may change the address to which notices are to be delivered by written notice to the other Party served as provided in this Section 12.9.
NOTICES TO PARTNER: To the address entered by Partner on the enrolment pages for the Services.
NOTICES TO VERISIGN: To the ‘Contact’ address listed on the Web site from where you purchased the Services, with a copy to:
General Counsel VeriSign, Inc.
487 East Middlefield Road
California, USA 94043
12.10 Foreign Reshipment Liability. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF TECHNICAL INFORMATION, SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE, WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, PARTNER SHALL NOT EXPORT OR RE-EXPORT, DIRECTLY OR INDIRECTLY, ANY TECHNICAL INFORMATION, SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE TO ANY COUNTRY FOR WHICH SUCH GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN EXPORT LICENCE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR RE-EXPORT WITHOUT FIRST OBTAINING SUCH LICENCE OR APPROVAL.
12.11 Publicity. Partner shall not issue any press release or make any other public announcement relating to the existence or terms of this Agreement without VeriSign's prior written approval.
12.12 Due Authorisation. Partner hereby represents and warrants to VeriSign that the individual executing this Agreement on behalf of Partner is duly authorised to execute this Agreement on behalf of Partner and to bind Partner hereby.
12.13 Choice of Language. In the event this Agreement is drafted in a language other than Partner's native language, Partner waives any right it may have under the law of any jurisdiction to have this Agreement written in the language of such jurisdiction or any other language.
'Account Manager’ is a VeriSign representative Partner may contact to resolve support and business issues relating to the Services.
‘Authenticate’ or ‘Authentication’ shall mean the actions a CA takes, consistent with the VeriSign CPS, to confirm that a Customer organisation does in fact exist, that the organisation has authorised the Certificate Application, and that the person submitting the Certificate Application on behalf of the Customer is authorised to do so.
‘Certificate’ shall mean a Secure Site Certificate, Secure Site Pro Certificate or Shared Hosting Security Service Certificate.
‘Certificate Applicant’ is an individual, Web Host, or organisation which requests the issuance of a Certificate by a CA; provided, however, that when a Web Host acts on behalf of its Customer through the VeriSign ISP Centre, such Customer shall be deemed the Certificate Applicant.
‘Certificate Application’ is a request from a Certificate Applicant (or authorised agent of the Certificate Applicant) to a CA for the issuance of a Certificate.
‘Certification Authority’ (‘CA’) shall mean VeriSign or any other VeriSign-authorised entity authorised to issue, manage, revoke, and renew Certificates in the VTN.
‘Deploy or any derivative thereof’ means to download the Services to a Web server or make them available for download to an Internet Server.
‘Device’ shall mean any hardware appliance or software application, such as a server load balancer or SSL accelerator, that routes electronic data from one point to other single or multiple point(s) on a network.
‘Intellectual Property Rights’ means any and all now known or hereafter existing rights associated with intangible property, including but not limited to registered and unregistered United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how and all other intellectual property and proprietary rights (of every kind and nature throughout the universe and however designated) relating to intangible property.
‘Marks’ means those United States and/or foreign registered or unregistered trademarks, service marks and logos which are the proprietary intellectual property of a Party, and which are provided to the other Party for the limited purposes of this Agreement.
‘Pass Through Terms’ shall have the meaning set forth in Section 3.1.2.
‘Repository’ shall mean the collection of documents located at the link for the repository which may be accessed from the home page of the Web site from which you purchased the Service.
‘Secure Site Certificate’ shall mean a VeriSign Class 3 organisational SSL certificate.
‘Secure Site Pro Certificate’ shall mean a VeriSign Class 3 organisational SSL certificate that includes support for Server Gated Cryptography.
‘Secured Seal’ or ‘Seal’ shall mean an electronic image featuring a VeriSign Mark. When displayed by a company on its Web site (i) the image indicates to a Web site visitor that the company has purchased VeriSign services; and (ii) when such visitor clicks on the image, a validation page is displayed which indicates to the visitor which VeriSign services the company has purchased and whether that service is still active.
‘Secure Sockets Layer’ (‘SSL’) shall mean an industry-standard method for protecting Web communications. The SSL security protocol provides data encryption, server authentication, message integrity, and optional client authentication for a Transmission Control/Internet Protocol connection.
‘Server’ shall mean a computer or device on a network that manages network resources, including, but not limited to a Web, email, file or application server.
‘Server Gated Cryptography’ (‘SGC’) shall mean that cryptography which allows users with an export version browser to temporarily step up to 128-bit SSL encryption if they visit a Web site with an SGC-compatible SSL certificate.
‘Service’ means the VeriSign Certificate or Seal(s) listed in the VeriSign ISP Centre for resale by Partner to Customers.
‘Shared Hosting Security Service’ shall mean a service that combines a Shared Hosting Security Service Certificate obtained by a Web Host with a Seal that would be displayed by shared Web hosting customers of the Web Host.
‘Shared Hosting Security Service Certificate’ (‘Shared Encryption Certificate’) shall mean a Class 3 organisational digital certificate used by Web Hosts who offer shared Web hosting services to support SSL sessions between Web browsers and their shared Web hosting customers' respective Web sites.
‘Subscriber Agreement’ means the agreement executed between a Customer and VeriSign with respect to the applicable Services.
‘Token’ is an electronic message with a unique numerical identifier created by VeriSign that holds a monetary value which allows the holder thereof to redeem or purchase software, product or services online at a later date.
‘VeriSign’ shall mean the VeriSign legal entity specified on the home page of the Web site on which you applied for the Services.
‘VeriSign CPS’ shall mean the VeriSign Certification Practice Statement, as amended from time to time, which may be accessed from the Repository.
‘VeriSign Materials’ means electronic versions of certain VeriSign Technical Manuals, sales and marketing materials related to the Services made available to Partner. Partner's use of the VeriSign Materials is subject to Sections 7 and 8.
‘VeriSign ISP Centre’ is a set of secure Web Pages set up by VeriSign and hosted on and connected to VeriSign's Internet Servers wherein Partners (a) by way of Tokens may purchase the Services for resale to Web Host customers and (b) redeem Tokens on their behalf when enrolling for the Services.
‘VeriSign Trust NetworkSM’ (‘VTN’) shall mean the VeriSign Trust Network that is a global public key infrastructure which provides Certificates for both wired and wireless applications.
‘Web Host’ shall mean an entity hosting the Web site of another, such as an Internet Service Provider (‘ISP’), a systems integrator, a reseller, a technical consultant, an application service provider (‘ASP’) or similar entity.
‘Web Host customer’ is an organisation that is provided server space or other services by a Web Host.
‘Web Logo’ is a graphic created using the graphical interchange format (gif) that is electronically displayed on the Web.
PASS THROUGH TERMS
For purchasers of Certificates and Seals, the Pass Through Terms are contained in the Class 3 Organisational Certificate Subscriber Agreement and the Secured Seal Licence Agreement located in the Repository.
For those who are installing Seals only, the Pass Through Terms are contained in the Secured Seal Licence Agreement located in the Repository.
Web Host Channel Partner Agreement Version 3.1