Utopia Net, Inc. Web Hosting Resellers Agreement
The terms and conditions set forth herein constitute the full and complete agreement between you (Reseller) and Utopia Net, Inc. (doing business as and hereinafter referred to as “Utopia Net”) with respect to your participation in the Utopia Net Reseller Program. The terms contained herein supersede and replace any other agreement or negotiation between you and Utopia Net whether oral, written or otherwise including any statements made by any representative of Utopia Net at any time. This agreement is effective and binding upon your acceptance of this agreement as indicated by your clicking the designated link. You further agree that your continued use of this service constitutes your immediate acceptance of any changes, alterations, updates and amendments to this agreement.
A. Definitions
1. “CUSTOMER INFORMATION”
The name, mailing address, telephone number and valid email address of each customer.
2. “UTOPIA NET RESELLER PAGE”
The web page from which you will purchase accounts for resale.
3. “UTOPIA NET”
Utopia Net, Inc.
4. “RESELLER CUSTOMER COMMUNICATION”
A communication issued by Utopia Net to be distributed to your customers.
5. “RESELLER” AND “YOU”
You and your company, employees, agents and representatives.
B. Terms and Conditions
1. Reseller Eligibility
By submitting your application for a Utopia Net Reseller account you hereby certify that you are eligible to hold such account. Specifically eligibility requires the following:
1.1 You must be either a person or a corporation, partnership, limited liability company or other formal legal entity existing under the laws of your local jurisdiction and enter into this agreement in that capacity. If you are an individual, you must be over the age of 18 by the date that you agree to the terms stated herein.
1.2 You may be a participant in the Utopia Net affiliate program and remain eligible for a reseller account. However, as to any sale under your reseller account, you will not be eligible to receive an affiliate commission.
1.3 You must have and maintain resources including but not limited to equipment and staff sufficient to allow you to comply with each of the terms set forth herein to the prevailing standard in the industry including but not limited to sales, maintenance, billing and customer support. Resellers must receive and resolve SPAM, DMCA and Abuse reports of your clients.
2. Reseller Rights and Obligations
2.1 Upon acceptance as a Utopia Net reseller and subject to the terms set forth herein, you are hereby granted a limited, nonexclusive, nontransferable, revocable license to purchase web hosting accounts under the Utopia Net reseller pricing structure for the sole purposes of reselling such services. The accounts available for sale and the reseller pricing structure are subject to change. The Utopia Net accounts that are available for resale at any given time are those available at that time from the Utopia Net Reseller Page. The nature and pricing of the Utopia Net reseller accounts are subject to change and any changes are effective immediately upon being made available on the Utopia Net Reseller Page.
2.2 Upon acceptance as a Utopia Net reseller and subject to the terms set forth herein, you are hereby granted a limited, nonexclusive, nontransferable, revocable license to resell Utopia Net Hosting plans according to the terms set forth herein.
2.3 The Utopia Net resale accounts available for resale are subject to change at any time. This shall include but shall not be limited to the type, nature, size, bandwidth, specifications, services included, and pricing.
2.4 You will at all times maintain the confidentiality of your username and password and agree not to disclose this information to any third party. You assume all responsibility for any actions taken by any person via the use of your username and password combination.
2.5 As to your reseller customer accounts you will be solely responsible for all account services including but not limited to account maintenance, account management, customer support, billing, administration and upkeep.
2.6 You agree at all times to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the DMCA.
2.7 All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Utopia Net.
2.8 It is your obligation to keep up to date as to the products and services including the product specifications as to Utopia Net Web Hosting Accounts available for resale.
2.9 You shall at all times during the course of this agreement use your best efforts to market, promote and sell the Utopia Net Hosting Accounts provided for herein. You shall take no action which would cast in a bad light or otherwise harm the Utopia Net name, brand, servers, equipment or reputation.
2.10 You shall maintain at all times accurate customer information including name, mailing address, telephone number and email address in a format that can be provided to Utopia Net for audit or any other purpose immediately upon request by Utopia Net.
2.11 You shall transmit any information designated by Utopia Net as a “reseller customer communication” to your customers within any specific timeframe specified by Utopia Net or otherwise not later than a reasonable period of time.
2.12 You agree to keep and hold any customer information including credit cards, name, address, and telephone numbers secure and make no use of such information that is inconsistent with the Utopia Net Privacy Policy. You agree to comply with all standards in the industry, laws and regulations related to Privacy and the protection of personal information as may be applicable.
3. Utopia Net Rights and Obligations
3.1 Upon acceptance as a Utopia Net reseller and subject to the terms set forth herein Utopia Net will provide you with a reseller account. Once you have a reseller account you can purchase web hosting accounts for resale to the public according to the terms available at the time of your purchase.
3.2 Limited customer service will be offered to you for the administration of your Reseller account only. Administration of your customer accounts will be solely your responsibility.
3.3 Utopia Net will provide the server space and server administration over your reseller accounts. Utopia Net will not provide any other services to your customers including but not limited to any of the following: customer service, account management, customer support, billing, administration or upkeep.
3.4 Except as otherwise provided herein Utopia Net will have no relationship with your customers directly. All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Utopia Net.
3.5 Utopia Net shall have the right to request and you shall immediately provide any and all customer information pertaining to any of your customer accounts. You shall maintain your customer information in a manner that is consistent with industry standards and which allows you to comply immediately with any such request for information.
4. Reseller Fees
4.1 There is no service fee currently charged by Utopia Net for maintaining a reseller account. The only charge to you at this time is the cost of each customer resale account that you purchase from Utopia Net according to the schedule set forth on the Utopia Net Reseller Page at the time of purchase. However, Utopia Net specifically reserves the right to institute, change, and increase any such fees at any time without notice. Utopia Net further reserves the right to add additional features, limitations, restrictions or remove such features, limitations or restrictions without advance notice to you. Utopia Net reserves the right to institute additional or different fees for new services or to charge for services presently included. Any such changes become effective immediately without advance notice by including them in the reseller administration panel.
4.2 You are responsible directly to Utopia Net for payment for each web hosting customer account that you purchase. You are responsible to make the initial payment and any subsequent renewal payment whether or not your customer pays you for the hosting services. It is suggested that you arrange for terms with your customers that will ensure your timely payment to Utopia Net to avoid any interruption in service.
4.3 Utopia Net reserves the right to change these prices without notice or offer subsequent promotional rates or add or remove products or product features or impose additional fees which may or may not be more favorable than the terms under which you entered this agreement.
5. Payment of Fees
Utopia Net accepts payment by Credit Card (American Express, Visa, MasterCard, Discover) and by personal check, cashier’s check or money order.
5.1 Payment by Credit Card
5.1.1. Prior to activation of each of your customer resale accounts and at any applicable time thereafter you agree to allow Utopia Net to charge your provided credit card and at stated regular intervals the agreed resale fee amount for the stated period. You further authorize Utopia Net to charge your credit card for all subsequent period resale renewal fees at, or a reasonable period in advance of, the commencement of any such subsequent renewal period. You agree to maintain at all times current, valid, existing credit card information with Utopia Net for the purpose of satisfying the Utopia Net charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for suspension and /or termination of your resale account and your customer accounts at the sole option of Utopia Net.
5.2 Payment by Check
5.2.1. Prior to activation of each of your customer resale accounts you agree to submit a check payable in U.S. dollars against a bank located within the United States. Utopia Net is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by Utopia Net. Invoices will be submitted to you as a courtesy only. Payment for subsequent period fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is timely received in a timely manner by Utopia Net. An administrative fee of $25.00 will be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. Refusal or rejection of any such check or any portion thereof is grounds for suspension and /or termination of your resale account and your customer accounts at the sole option of Utopia Net.
5.2.2. It is recommended that in order to avoid any service interruption that you submit your payment to Utopia Net a sufficient time before the expiration of the current service period so that it reaches Utopia Net in advance of the renewal date.
5.3 Refunds. This is a commercial account. There are no refunds of any kind for the purchase of a Reseller customer account. The account, however, may be transferred by you to a new purchaser upon notice to Utopia Net and change of the provided customer information. Notwithstanding the forgoing, Utopia Net reserves the right to make a refund of any fee paid at any time without waiving its right not to issue such refund at any time. Such right shall be exercised by Utopia Net and within its sole discretion.
6. Reseller Pricing
6.1 As a Utopia Net reseller you are free to set your own prices for your customer hosting accounts.
7. Branding
7.1 Reseller Branding. You may brand your resale accounts as you wish except that you agree not to infringe upon the rights of any third party in doing so. You further agree that you will indemnify and hold Utopia Net harmless of and from any claim, action or other demand for damages including but not limited to attorneys fees and costs of any kind including expert witnesses fees which are in any way related to your marketing, branding, advertising, publicizing or sale of your customer hosting accounts.
8. Required Terms of Sale
8.1 Acceptable Use Policy
8.1.1. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms which are fully consistent with the Utopia Net terms of service and the Utopia Net Acceptable Use Policy located in the Utopia Net LEGAL portion of the website. This is intended to stand as a minimum Acceptable Use Policy and does not prevent reseller from adopting a policy that is stricter except that any policy adopted by reseller shall comply with the laws of the United States, the State of California and the jurisdiction where the reseller is located.
8.1.2. You agree to keep informed as to changes in the Utopia Net Terms of Service including the Acceptable Use Policy and adopt them into your Terms of Service as necessary immediately upon their adoption by Utopia Net.
8.2 Compliance with Laws. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that require your customers to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the DMCA.
8.3 Disclosure of Customer Information. You agree that as a specific condition of the sale of any customer resale account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that allow for the disclosure of your customers personal account information upon receipt of a court order or otherwise as is reasonable.
9. Taxes
9.1 As the reseller you are responsible for all sales taxes or other taxes that may be applicable to your sale.
10. Suspension and Termination
10.1 Suspension. At the sole option of Utopia Net for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Eligibility), Section 3 (Payment of Fees), or the Utopia Net Acceptable Use Policy, incorporated herewith as though fully set forth at length herein, Utopia Net may suspend your account by deactivating any access by you to your reseller account and access by web users to any information contained on the Utopia Net servers related to your reseller account including your customer websites while maintaining the information and data related to your account and your customer’s accounts upon the Utopia Net servers for a reasonable period of time. Suspension shall specifically include the disabling of your reseller account, any hosted domain accounts, your customer accounts and any access to information or data related thereto. In the event of any such suspension you will be notified and given an opportunity to correct any such breach. In the event that such breach is not corrected within ten (10) days the account may be terminated under paragraph 10.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
10.2 Termination. This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Utopia Net servers. Such information or data may or may not be made available to you by Utopia Net after any such termination. This agreement may be terminated (a) at Utopia Net sole discretion after a period of suspension as set forth in paragraph 10.1 or (b) by either party upon 15 days notice.
10.2.1. Upon any termination of this agreement, any customer accounts initially established by you under your Utopia Net resale account under this agreement shall at the time of such termination become the sole and exclusive property of Utopia Net. Utopia Net shall have the right but shall not have any obligation to provide and or continue to provide web hosting services to such customers. Nothing contained in this paragraph shall reduce or otherwise affect the Rights of Utopia Net under this agreement including but not limited to the right to recover any and all reseller fees under this agreement.
10.3 In the event of termination under paragraph 10.2(a) there will be no refund provided to you of any reseller or other fee. In addition, Utopia Net may charge you an additional early termination fee not to exceed $100.00 at its sole option. The assessment of this early termination fee shall not affect the rights of Utopia Net to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and attorney’s fees or other costs of any kind as may be applicable under this agreement or otherwise under California Law.
11. Ownership of Intellectual Property; Confidentiality
11.1 It is understood and agreed upon that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Utopia Net including but not limited to the Utopia Net reseller service tools, customer service tools and maintenance tools. You acknowledge that all right and title to any such Utopia Net intellectual property shall remain the sole property of Utopia Net and that you have no right, title or interest therein. You further agree not to provide access to the Utopia Net reseller services to any third party. You agree that you will not yourself and you agree that you will not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Utopia Net Reseller Service or any other aspect of the Utopia Net Web hosting or other services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Utopia Net service shall also remain the sole property or Utopia Net.
11.2 During the term of this agreement you may have access to certain information and materials relating to the Utopia Net business, customers, software technology and marketing which Utopia Net treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any “Confidential Information” without the express prior written consent of Utopia Net; and (ii) not use or disclose any of the “Confidential Information” for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
12. Information Usage
12.1 You hereby consent and agree that as to any information which Utopia Net may collect from you and maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from Utopia Net concerning you or your account, or other information which in Utopia Net sole judgment is reasonable, Utopia Net may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Utopia Net and may include but shall not be limited to (1) compliance with court order or subpoena of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Utopia Net Terms of Service or other policies.
13. Notice
13.1 Any notice under this agreement shall be given by Utopia Net to you via email at the address provided by you to Utopia Net at the commencement of this agreement or as Utopia Net is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by emailing billing@Utopia Net.com.
13.2 Any notice by you under this agreement is effective only upon receipt by Utopia Net and shall be made only in writing containing proper security information either via email to billing@Utopia Net.com or via United States Mail. Notice sent via United States Mail shall be sent to the following address:
Utopia Net, Inc.
Web Hosting Division
724 Caledon Ct.
Greenville, SC 29615
14. Survival
14.1 Sections 1, 4, 5, 8 through 22 inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
15. Warranties and Limitations
15.1 Utopia Net guarantees that your website and the websites of your clients will be up and running at least 99.9% of the time during any 12-month period. This guarantee includes network and server uptime. However, we cannot be held responsible for upstream problems outside of our network and areas where Utopia Net has no direct influence, such as backbone provider failures, fiber-optic main line cuts, DNS or Registrar problems with subscribers’ domain names, routing problems between a client’s location and our data center. The uptime guarantee is also not applicable if the service interruption was caused by a natural or unnatural event that is not directly under the control (or jurisdiction) of Utopia Net. Utopia Net may temporarily deny or terminate the Service upon client’s failure to pay their charges at due time.
15.2 Utopia Net guarantees 99.9% Resellers Panel network uptime and 99.9% server stability uptime. This, however, does not refer to problems stemming from:
- Server Hardware Breakdown
- User error(s) or purposeful interruption(s) (e.g. if a client shuts his/her own server down, Utopia Net cannot be held responsible for the downtime)
- Failures due to software that is not explicitly supported by Utopia Net If a hardware crash provoked by the customer consequently happens, Utopia Net has no responsibility for the resulting downtime.
Network Outages or Unexpected Downtime is any unplanned or unexpected interruption in the network availability due to hardware, software, network connectivity or data center problem, during which a 100% packet loss is experienced.
Scheduled Downtime is any scheduled interruption of the services for the purpose of network software/hardware upgrades, or replacement of any network equipment in order to be provided better service for the customers. Scheduled downtimes occur within pre-notified downtime periods, with as many warnings as possible sent via e-mail or posted in our news section minimum 24-hour in advance.
15.3 In general, Utopia Net has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Utopia Net accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Utopia Net provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Utopia Net system.
15.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
15.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO UTOPIA NET IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL UTOPIA NET BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
16. Indemnity
16.1 Use of Service. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to your marketing to, resale to or support of your customers with respect to the Utopia Net hosting services and any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Utopia Net in any way related to your use of the Utopia Net resale program, Utopia Net Web Hosting services or any other aspect thereof.
16.2 Copyright. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Utopia Net resale program, Utopia Net Web Hosting, or any other aspect thereof. Choice of counsel remains exclusively that of Utopia Net.
16.3 Password. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of Utopia Net.
16.4 Customer Support. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of providing or the failure to provide any account maintenance, account management, customer support, billing, administration and upkeep or any other aspect thereof. Choice of counsel remains exclusively that of Utopia Net.
16.5 Personal/Financial Information. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure to comply with paragraph 2.9 herein relating to the protection of personally identifiable information and the protection of customer financial information including but not limited to credit card and bank account data.
16.6 Required Terms of Sale. You agree to fully defend and indemnify and hold harmless Utopia Net of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure on your part or on the part of your customers to comply with the required Terms of Sale set forth in paragraph 8 herein.
17. Force Majeure
17.1 Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
18. Assignment
18.1 This agreement and the rights hereunder are not assignable or transferable except that Utopia Net may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Utopia Net. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
19. Severability
19.1 If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
20. Choice of Law
20.1 This Agreement shall be interpreted under the laws of the State of South Carolina without regard to any conflict of laws and provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way otherwise relating to this agreement shall be enforced in the Superior Court of the State of South Carolina, County of Greenville. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service of process by mail and hereby waive any defense of any kind related to jurisdiction or venue.
21. No Agency
21.1 Notwithstanding any other provision of this agreement, Utopia Net is not your agent, partner or joint venturer in any respect.
22. Amendment
22.1 Utopia Net may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Utopia Net web site in place of the old. Each and every such amendment shall be become effective immediately upon posting for all pre-existing and future accounts. It is your obligation to check this page often for updated agreements.
23. Required Notices
23.1 Copyright Infringement Claims – Utopia Net, Inc. is registered with the United States Copyright office as an Internet Service Provider. Any notice concerning any claim of copyright infringement should be addressed to Utopia Net, Inc – Web Hosting Division, COPYRIGHT INFRINGEMENT CLAIM, 724 Caledon Ct., Greenville, SC 29615 Telephone 1-864-585-2080 Facsimile 1-864-585-2080.