Oriensoft XcellHost -
Reseller
Agreement
The following agreement is between
Oriensoft XcellHost™, (hereforth
known as "Oriensoft XcellHost™"), and you (hereforth known as
"Reseller").
WHEREAS, Oriensoft
XcellHost™ is an information provider,
offering data storage and transfer services over the Internet,
through web servers;
WHEREAS, Reseller is a person or organization who is
engaging in the business of reselling the products and services
offered through Oriensoft XcellHost™;
WHEREAS, the parties acknowledge that the Internet is
neither owned nor controlled by any one entity; therefore, Oriensoft
XcellHost™ can make no guarantee that any given person on-line
shall be able to access anyone of Oriensoft XcellHost™'s web servers
at any given time. Oriensoft XcellHost™ represents that it shall
make every good faith effort to ensure that its equipment is
available as widely as possible and with as little service
interruption as possible;
NOW THEREFORE, in consideration of the mutual promises
contained herein, the parties agree as follows;
I. Financial Arrangements:
Reseller agrees to
engage in the business of reselling Oriensoft XcellHost™’s products and services for profit.
Reseller
understands that they are responsible for collection of payment from
their resold accounts, and any default of payment for resold
services cannot be passed along to Oriensoft XcellHost™.
This agreement will automatically renew for the same
successive period(s) specified by the Reseller on the initial order.
This agreement will renew every month unless cancelled in writing
(mail, fax, email) at least 15 days prior to the renewal date and,
in the case of fax or email, after receipt of the reconfirmation.
Renewal of services by Client indicates agreement to Contract
revisions.
Oriensoft XcellHost™ shall not be liable for any taxes or other
fees to be paid in accordance with or related to purchases made from
Reseller/Client for Oriensoft XcellHost™'s services.
Reseller/Client agrees
to take full responsibility for all taxes and fees of any nature
associated with such products sold.
II. Reseller must be responsible for providing
technical support to all resold accounts. Reseller is also
responsible for registering new and transferring existing virtual
domains for resold clients.
While Oriensoft
XcellHost™ may provide the service of
registering/transferring the domain names of resold accounts,
Oriensoft XcellHost™ is not responsible for any problems or delays
in conjunction with this service.
III. Material and Products:
Client will provide
Oriensoft XcellHost™ with material and
data in a condition that is "server-ready", which is in a form
requiring no additional manipulation on the part of Oriensoft
XcellHost™. Oriensoft XcellHost™ shall make no effort to validate
this information for content, correctness or usability.
IV. Competency
Use of Oriensoft
XcellHost™'s service requires a certain
level of knowledge in the use Internet languages, protocols, and
software, and English language skills. This level of knowledge
varies depending on the anticipated use and desired content of
Client's Web space by the Client.
Reseller must have and
maintain a good, fundamental understanding of Oriensoft XcellHost™’s products, services, and
features offered in its web hosting services. Reseller must also
have a firm understanding of relevant Internet related technologies
including HTML, the FTP protocol, Telnet, server-side scripting
languages, and e-mail services.
The following examples are offered:
Web Publishing:
requires knowledge of HTML, properly locating and linking documents,
FTPing documents, creating graphics, text, sound, image mapping,
etc.
E-mail:
knowledge of POP3 service, mail forwarding, use of mail clients to
receive mail, etc.
The Reseller agrees that
he or she has necessary knowledge to utilize Oriensoft XcellHost™'s service without reliance on
Oriensoft XcellHost™. Reseller agrees that it is not the
responsibility of Oriensoft XcellHost™ to provide this knowledge or
Customer Support outside of the defined service of Oriensoft
XcellHost™.
In consideration of the above, the following articles apply
to the Reseller and the Reseller's clients, here forth both known as
"Client"
V. Content
1. Oriensoft XcellHost™ will exercise no control
whatsoever over the content of the information passing through the
network. Oriensoft XcellHost™ makes no warranties or
representations of any kind, whether eXcelled or implied for the
service it is providing. Oriensoft XcellHost™ also disclaims any
warranty of merchantability or fitness for particular purpose and
will not be responsible for any damages that may be suffered by the
Client, including loss of data resulting from delays, non-deliveries
or service interruptions by any cause or errors or omissions of the
Client. Use of any information obtained by way of Oriensoft
XcellHost™ is at the Client's own risk, and Oriensoft XcellHost™
specifically denies any responsibility for the accuracy or quality
of information obtained through its services. Connection speed
represents the speed of a connection to and does not represent
guarantees of available end to end bandwidth. Oriensoft XcellHost™
eXcellly limits its damages to the Client for any non-accessibility
time or other down time to the prorata monthly charge during the
system unavailability. Oriensoft XcellHost™ specifically denies any
responsibilities for any damages arising as a consequence of such
unavailability.
2. In the event that any particular clients' material is
not "Server-ready", Oriensoft XcellHost™ may, at its
option and at any time, reject this material, including but not
limited to after it has been put on the web servers. This includes
Oriensoft XcellHost™'s right to disable such non-"Server-ready" materials,
such as CGI scripts or programs which consume an unreasonable amount
of CPU (Central Processing Unit) usage or RAM (Random Access Memory)
as determined by Oriensoft XcellHost™. Oriensoft XcellHost™ may
also at its discretion at any time, suspend access to any client's
website without notice, due to over-consumption of bandwidth, CPU
usage, or any other reason which might effect the performance of
Oriensoft XcellHost™ services. Oriensoft XcellHost™ agrees to
notify Client of its refusal of the material and/or suspension of
the account and afford Client the opportunity to amend or modify the
material to satisfy the needs and/or requirements of Oriensoft
XcellHost™. If the Client fails to modify the material, as directed
by Oriensoft XcellHost™, within a reasonable period of time, which
shall be determined between the parties themselves, the Agreement
shall be deemed to be terminated.
VI. Acceptable Uses
Client is expected to use the Internet with respect,
courtesy, and responsibility, giving due regard to the rights of
other Internet users. Client is expected to use his/her account for
the purposes of maintaining a website only. Common sense is the best
guide as to what is considered acceptable use. The following are
unacceptable uses:
1. Adult Material Restrictions
Oriensoft XcellHost™ forbids websites with adult graphic
content (softcore and/or hardcore), including, but not limited to,
banners advertising or links to any adult website(s), child
pornography, distribution of adult website passwords, or any website
containing graphics of men's and/or women's genetelia and/or
breasts, or links to such sites. Client's whose accounts are found
in violation of this policy may, at the discretion of Oriensoft
XcellHost™, have their account(s) terminated without notice and are
subject to a maximum Rs. 5000/- clean-up/disconnection fee.
2. File Distribution/Mirroring
Oriensoft XcellHost™ forbids use of service for those who
provide mirroring service for other website or websites, and/or
whose primary purpose is file distribution. Distributions of
executable programs, archive files, or other non-visual file types
are not welcome. Client’s whose accounts who are found in
violation of this policy may, at the discretion of Oriensoft
XcellHost™, have their account(s) terminated without notice.
3. Hate Material Restrictions
Hatred messages including racism, sexism, or content
promoting one particular race, sex, or nationality as superior
and/or another race, sex, or nationality as inferior is
unacceptable. Client's whose accounts are found in violation of this
policy may, at the discretion of Oriensoft XcellHost™, have their account(s) terminated without notice and are subject to a maximum
Rs. 5000/- clean-up/disconnection fee.
4. Illegal Activity Restrictions
Client's whose website promotes activities that violate
federal, state, local laws and/or violation of Indian and U.S.
export restrictions are also not welcome at Oriensoft XcellHost™.
This include "warez" sites (freely distributing copyright programs),
or sites promoting hacking and/or cracking programs, as well as
links to such sites. Client's whose accounts are found in violation
of this policy may, at the descretion of Oriensoft XcellHost™, have thier account(s) terminated without notice and are subject to a
maximum Rs. 5000/- clean-up/disconnection fee. Additionally,
Oriensoft XcellHost™ may contact the Software Piracy Association
("SPA") and release any information in connection with any illegal
activities relating to software piracy on the Client's account.
5. Spamming/Mail bombing/Trolling Restrictions
Spamming is the sending of unsolicited e-mail, regardless
of size or volume, to persons the sender does not know or have prior
consent to send the message. Using fictitious e-mail addresses
@hosting 4all.com or .net is strictly forbidden. Spamming also
includes sending unsolicited advertisements to numerous email
addresses or newsgroups and/or generating a significantly higher
volume of outgoing email than a normal user. Trolling, the posting
of outrageous messages to generate numerous responses is also not
allowed. Mail bombing, the sending of multiple messages without
significant new content to the same user and/or subscribing someone
else to a mailing list without that person's permission,
cross-posting articles to an excessive number of newsgroups, or
attempting without authorization to enter into a secured computer
system is strictly forbidden. Oriensoft XcellHost™ reserves the
right to determine what constitutes abuse of this policy. Client's
whose accounts are found in violation of this policy may, at the
discretion of Oriensoft XcellHost™, have their account(s)
terminated without notice and are subject to a maximum Rs. 20000/-
clean-up/disconnection fee.
Due to the consumption of system resources and overloading
of the e-mail server, Oriensoft XcellHost™ forbids the use of the
Gossamer Links program by any client.
6. IRC Bots and Chat Restrictions
IRC Bots, or any other automaton programs written in C,
Perl or IRC-script used specifically in conjunction with IRC are not
welcome. These programs tie up system resources and are in no way
related to maintaining a website. Clients are not allowed to have
any programs, including but not limited to, Eggdrop, BitchX, or any
other IRC-related programs within their account. Client agrees not
to upload the tar file for any of these programs or to execute them
within their account. The first violation of this policy will result
in the IRC-related program to be removed from the Client's account
and Oriensoft XcellHost™ will notify the Client immediately of the
violation. Violation of this policy may, at the discretion of
Oriensoft XcellHost™, result in the Client's account(s) terminated
without notice and a maximum Rs. 5000/- clean-up/disconnection fee.
The use of CGI or HTML chat scripts or pages is strictly
prohibited. Oriensoft XcellHost™ provides acceptable chat programs
for clients at no charge in some of its hosting plans. Oriensoft
XcellHost™ reserves the right to suspend accounts without notice to
clients who violate these terms
7. Audio & Video Restrictions
Client agrees that all audio and video content contained
within his/her account is free from any and all copyright
protection. MP3 files (MPEG 1 Layer-3) encoded from copyright
material, such as popular CDs are prohibited. This policy holds with
Real Audio/Video content. Client agrees not to upload any
audio/video files, regardless of file type (.ra, .mp3, .wav, .au)
which violate another entity's copyright. The first violation of
this policy will result in the copyright material being removed from
the Client's account and Oriensoft XcellHost™ will notify the
Client immediately of the violation. Violation of this policy may,
at the discretion of Oriensoft XcellHost™, result in the Client's account(s) terminated without notice and a maximum Rs. 5000/-
clean-up/disconnection fee.
8. Emulator/ROM Restrictions
Client agrees not to store Game-emulators or ROMs within
their account. These emulators/ROMS commonly violate copyright law
and therefore are not allowed at Oriensoft XcellHost™. Any emulator(s), or programs that will allow you to play certain ROMs
for a specific game console or computer or ROM(s), (read only
memory) game cartridges in binary format are prohibited. If these
programs are found within the Client's account, it may, at the
discretion of Oriensoft XcellHost™, result in the Client's account(s) terminated without notice and a maximum Rs. 5000/-
clean-up/disconnection fee.
9. Excessive CPU/RAM Usage
Client agrees to take all responsibility for all programs
including CGI scripts executed under their account.
Programs which consume an excessive amount of CPU run time
or Random Access Memory. Client agrees and understands that he/she
shares the particular web server with other clients and agrees to
honor this clause. Client agrees to accept responsibility for
programs executed under his/her account, regardless of who authored
the program.
Programs provided by
Oriensoft XcellHost™ as an
installable feature are not exempt from this policy. While every
efforts is made on Oriensoft XcellHost™ end to ensure the program
it provides are efficient, problems with excessive usage on
particular programs may occur.
Oriensoft XcellHost™
reserves the right to suspend accounts without notice or to
immediately terminate this Agreement and remove Client’s Web Site
from the Virtual Server if it is determined, in Oriensoft XcellHost™’s sole discretion, that Client
has breached this Agreement.
Oriensoft XcellHost™ has sole discretion over what
constitutes excessive usage.
10. Complaints regarding Client
Oriensoft XcellHost™ reserves the right, in its sole
discretion, to exclude or remove from the Client's Web Site, any
Client content if (i) Oriensoft XcellHost™ has received a
significant number of complaints regarding Client's failure to be
reasonably accessible to Client's customers or timely fill orders,
(ii) Client has become the subject of a government complaint or
investigation, or (iii) any other reason which violate or infringe
any law or third party rights or which otherwise may potentially
expose Oriensoft XcellHost™ to civil or criminal liability or
public ridicule, provided that such right shall not place an
obligation on Oriensoft XcellHost™ to monitor or exert editorial
control over the Client's Web Site.
VII. Software End-User License Agreement
This End-User License Agreement ("EULA") is a legal
agreement between you (either an individual or a single entity) and
Oriensoft XcellHost™ for Internet-related services, which includes
proprietary software ("SOFTWARE PRODUCT"). The SOFTWARE PRODUCT also
includes any updates and supplements to the original SOFTWARE
PRODUCT provided to you by Oriensoft XcellHost™. Any software
provided along with any Internet-related service that is associated
with a separate end-user license agreement is licensed to you under
the terms of that license agreement. By accessing, downloading,
and/or using the SOFTWARE PRODUCT, you agree to be bound by the
terms of this EULA. If you do not agree to the terms of this EULA,
then you are prohibited from opening an account with Oriensoft
XcellHost™.
The SOFTWARE PRODUCT is protected by copyright laws and
international copyright treaties, as well as other intellectual
property laws and treaties. The SOFTWARE PRODUCT is licensed, not
sold. This SOFTWARE PRODUCT pertains to, but is not limited to, The
Control Panel.
1. Grant of Licensee.
This EULA grants you the following rights:
* Access: You may access the SOFTWARE PRODUCT via
the World Wide Web only (not Telnet or File Transfer Protocol) at
anytime using a standard Internet browser including, but not limited
to, Netscape Navigator and/or Microsoft Internet Explorer.
* Usage: You may also use the SOFTWARE PRODUCT for
its intended use on your account only. This includes setting up
features, editing files, and configuring e-mail options.
2. Description of Other Rights and Limitations
* Limitations on Reverse Engineering, Copying, and
Disassembly:
You may not reverse engineer, copy, or disassemble the
SOFTWARE PRODUCT, except and only to the extent that such activity
is eXcellly permitted by applicable law notwithstanding this
limitation. Any attempt by the end-user to reverse engineer, copy,
or disassemble the SOFTWARE PRODUCT regardless of intent will result
in immediate termination of his/her account without notification and
possible legal action at the discretion of Oriensoft XcellHost™.
* Separation of Components.
The SOFTWARE PRODUCT is licensed as a single product and
its component parts may not be separated.
* Trademarks.
This EULA does not grant you any rights in connection with
any trademarks or service marks of Oriensoft XcellHost™.
* Termination.
Without prejudice to any other rights,
Oriensoft XcellHost™ may terminate this EULA if you fail to comply with the
terms and conditions of this EULA. In such event, your account can
be terminated without notice by Oriensoft XcellHost™.
IN NO EVENT SHALL
Oriensoft XcellHost™ BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY
OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE
THE SOFTWARE PRODUCT OR THE FAILURE TO PROVIDE SUPPORT SERVICES,
EVEN IF Oriensoft XcellHost™ HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN ANY CASE, Oriensoft XcellHost™'S ENTIRE LIABILITY
UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF
THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR
Rs.250/-.
VIII. Trademarks & Copyrights:
Client warrants that it has the right to use the applicable
trademarks, if any, and grants Oriensoft XcellHost™ the right to
use such trademarks in connection with Oriensoft XcellHost™'s
service during the contract term. This includes the right granted by
Client to Oriensoft XcellHost™ to advertise the Client in
conjunction with Oriensoft XcellHost™'s service.
IX. Hardware, Equipment & Software:
The customer is responsible for and must provide all
telephone, computer, hardware and software equipment and services
necessary to access Oriensoft XcellHost™. Oriensoft XcellHost™
makes no representations, warranties or assurances that the
Customer's equipment will be compatible with the Oriensoft
XcellHost™ service. Client understands that Oriensoft XcellHost™
is not an ISP and therefore will not provide dial-up Internet access
for the Client.
X. Internet Etiquette:
Electronic forums such as mail distribution lists and
UseNet news groups all have expectations regarding subject area and
appropriate etiquette for posting. Users of these forums should be
considerate of the expectations and sensitivities of others on the
network when posting material for electronic distribution. The
network resources of WWW may not be used to impersonate another
person or misrepresent authorization to act on behalf of others or
Oriensoft XcellHost™. All messages transmitted via Oriensoft
XcellHost™ should correctly identify the sender; users may not
alter the attribution of origin in electronic mail messages or
posting. Users must not attempt to undermine the security or
integrity of computing systems or networks and must not attempt to
gain unauthorized access.
XI. Limitations:
Client is not entitled
to any sort of refund due to ignorance of Oriensoft XcellHost™'s underlying service or payment
policies. This includes, but is not limited to, Oriensoft XcellHost™ not providing dial-up Internet access, problems
registering or transferring any domain, U.S. top-level, Indian or
foreign, getting programs (CGI scripts) or features (search engines, guestbook, etc.) working on the Client's account. Client may not be
entitled to any sort of refund because he/she had violated any one
of the eight restrictions outlined in the acceptable uses policy
above. Client will not be entitled to a refund for cancellation due
to the fact that he/she did not read our acceptable uses and later
learned that his/her content violates our acceptable uses. Acts
including but not limited to, earthquakes, thunderstorms, or fires
which result in an interruption in service are exempt from the
service guarantee. Because these circumstances are beyond the
control of Oriensoft XcellHost™, the service guarantee will be void
under these conditions. However, Oriensoft XcellHost™ will make
every good faith effort to reinstate service to Client as quickly as
possible.
XII. Termination:
1. This Agreement may be terminated by either party,
without cause, by giving the other party 30 days written notice.
Notwithstanding the above, Oriensoft XcellHost™ may terminate
service under this Agreement at any time, without penalty, and
collect any termination fees as outlined above if the Client fails
to comply with the terms of this Agreement.
2. Termination for Breach of contract:
Any termination for breach of the present contract and any
termination under the Section IX shall take effect immediately and
Client eXcellly agrees that it: (i) shall not have any opportunity
to cure, or shall under certain conditions in Oriensoft XcellHost™
sole discretion (ii) shall not be entitled to a refund of any fees
paid by the Client to Oriensoft XcellHost™.
XIII. Limited Liability
1. Client eXcellly
agrees that use of Oriensoft XcellHost™'s equipment is at Client's sole risk. Neither
Oriensoft XcellHost™, its employees, affiliates, agents, third
party information providers, resellers or the like, warrant that
Oriensoft XcellHost™'s service will not be interrupted or error free; nor do
they make any warranty as to the results that may be obtained from
the use of the service or as to the accuracy, reliability or content
of any information service or merchandise contained in or provided
through Oriensoft XcellHost™, unless otherwise eXcellly stated in
this Agreement.
2. Under no circumstances, including negligence, shall
Oriensoft XcellHost™, its offices, agents or any one else involved
in creating, producing or distributing Oriensoft XcellHost™'s
service be liable for any direct, indirect, incidental, special or
consequential damages that result from the use of or inability to
use of Oriensoft XcellHost™'s service; or that results from
mistakes, omissions, interruptions, deletion of files, errors,
defects, delays in operation, or transmission or any failure of
performance, whether or not limited to acts of God, communication
failure, theft, destruction or unauthorized access to Oriensoft
XcellHost™'s records, programs or services. Client hereby
acknowledges that this paragraph shall apply to all content on
Oriensoft XcellHost™'s Server service.
3. Notwithstanding the above, Client's exclusive remedies
for all damages, losses and causes of actions whether in contract,
tort including negligence or otherwise, shall not exceed the
aggregate amount which Client paid during the term of this Agreement
and any reasonable attorney's fee and court costs.
XIV. Indemnification:
Client agrees that it shall defend, indemnify, save and
hold Oriensoft XcellHost™ harmless from any and all demands,
liabilities, losses, costs and claims, including reasonable
attorneys' fees, ("Liabilities") asserted against
Oriensoft XcellHost™, its agents, its customers, resellers and employees,
that may arise or result from any service provided or performed or
agreed to be performed or any product sold by Client, its agents,
employees or assigns. Client agrees to defend, indemnify and hold
harmless Oriensoft XcellHost™ against Liabilities arising out of (i)
any injury to person or property caused by any products sold or
otherwise distributed in connection with Oriensoft XcellHost™'s
equipment; (ii) any material supplied by Client infringing or
allegedly infringing on the proprietary rights of a third party;
(iii) copyright infringement and (iv) any defective product which
Client sold using Oriensoft XcellHost™'s service.
XV. Contract Revisions:
Revisions to this Contract will be applicable to previous
Contracts. Revisions will be considered agreed to by the Client on
renewal of Oriensoft XcellHost™ service as specified in Section II,
Financial Arrangements.
This Agreement constitutes the entire understanding of the
parties. Any changes or modifications to this Contract thereto are
agreed to by both parties upon renewal of services.
This Agreement shall be governed and construed in
accordance with the laws of
India and of the
Internet.
By placing an order for
Oriensoft XcellHost™'s services,
both parties agree to the terms of this contract as outlined above.
