Domain Registration Reseller Agreement
THE FOLLOWING AGREEMENT OUTLINES THE ARBITRATION OF DISPUTES BETWEEN THE PARTIES.
This Reseller Agreement ("RSA") is a legal agreement by and between you, as you have identified yourself in your account information ("You" and "Your"), the backend service provider, Evonames and, the primary service provider, (the "Primary Service Provider"). Evonames will act as both Your backend service provider and your Primary Service Provider if You are buying the Services (defined below) directly from Evonames. You affirm that the information You provide in Your account with Evonames ("Your Account") is precise and that You will keep it up-to-date. This outlines the terms and conditions of Your use and resale of Evonames’ Domain Name Registration and related services ("Services"). With Your use of the Services, You are acknowledging that You have read, understood and agreed to be bound by this RSA, along with any additional terms, conditions or policies which Evonames or ICANN may establish in the future.
In addition, You also agree to be bound by this RSA for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses Your Account. Evonames may revise the terms and conditions of this RSA at any time. Revisions will become effective 30 days after we notify you of the changes by sending an email to the address You provide us with upon your approval. You may send us a cancellation notice if You do not agree to the revisions made in order for You to remain subject to the unrevised terms and conditions of this RSA (except Section 5 ICANN Obligations will apply to You). This applies to the remainder of the term of the RSA, after which Your RSA will come to an end.
Reselling the Services
- As per the terms and conditions of this RSA, Evonames authorizes You to resell the Services worldwide. The Services include, but are not limited to, any other Services that we may offer in Your Account. In order to resell these Services, You and Your Sub-Resellers (defined below) as well as each of Your end customers purchasing these Services must agree to these additional terms and conditions, which may be revised often. You agree to indemnify and hold harmless Evonames for any failure by You or a Sub-Reseller below Your Account to obtain the consent of any Sub-Reseller or customer to these additional terms and conditions. The Services do not include outside services that weren’t provided through Your Account by Evonames, its third party licensors or a Primary Service Provider other than Evonames. If your Primary Service Provider is not Evonames, it is an independent reseller of Evonames and may offer its own services under separate agreement.
- Sub-resellers on Your Account may be allowed to resell the Services ("Sub-Resellers") through accounts attached to Your Account ("Sub-Accounts"). You will be held responsible by Evonames for any costs, fees, expenses, acts and exclusions of Your Sub-Resellers and any Sub-Resellers "below" them in Your Account or any Sub-Accounts. Sub-Resellers must read and agree to the terms of this RSA and You are responsible for the consent of your Sub-Resellers with this RSA, all applicable Evonames or ICANN policies, laws and regulations in reselling the Services. If the Sub-Reseller, You or Evonames terminate a Sub-Reseller’s Sub-Account, You will then be responsible for the Sub-Account.
- Evonames may choose to take over any of Your customers and/or Sub-Accounts if for some reason You stop using Your Account, cannot be reached by Evonames, Your Primary Service Provider (if applicable), Your customers or Sub-Resellers, or this RSA is brought to an end by Evonames.
Points, payments, and commissions
- “Points” may need to be purchased in order to access all or certain of the Services. Your price for the Points may be comprised of other costs, such as online access fees and taxes, which will not be displayed in Your Point total. Evonames accepts checks and/or wire transfers as forms of payment with no extra charges. Points are non-refundable and are not transferable without the consent of Evonames, who is allowed to deny transfers for any reason. You will be responsible for all merchant services fees for any transaction from all Sub-Accounts below Your Account. If you have a Primary Service Provider other than Evonames, your Primary Service Provider is responsible for pricing the Services.
- With Your authorization, a credit card may be used for purchasing Points and certain of the Services. It is required that You and all Sub-Resellers and all customers in and below Your Account must present only approved transactions to Evonames. In addition, You and all Sub-Resellers and all customers in and below Your Account must first get in touch with Your Primary Service Provider (if it is not Evonames) and then Evonames to verify the credit card charges and the method of billing before getting in touch with Your credit card company. Any chargeback by a credit card company or another payment provider, for whatever reason, whether by You, by any Sub-Reseller or customer below Your Account i) is considered a violation of this RSA, ii) is an act for which You agree to be jointly and severally accountable to make Evonames whole, iii) is an act whereby Evonames will charge $35.00 per incident, in addition to merchant services fees and any payment provider service fees that may be charged to Evonames, and iv) that the same gives Evonames the right to suspend and/or terminate this RSA and the Services. Evonames may suspend Your access to any and all of Your Accounts and may assume all right, title, interest in, and use of any domain name registration(s) and/or websites, email, or other data hosted on systems controlled by Evonames (the "Collateral"). If chosen to do so, Evonames will reinstate rights in the Collateral, only upon receipt of the fee(s) owed and a reinstatement fee of US$200. As a result of this document, You agree to Evonames’ right, but not obligation, to sell, dispose of, or retain the Collateral if Evonames determines the same to be a way of obtaining some monetary or other satisfaction or security, even if You proclaim that the value of the Collateral exceeds the amount You owe Evonames.
- Evonames may require that You pay for Points or the Services using a particular payment method. if they choose, Evonames may also require guarantee of payment.
- If You are using Evonames’ merchant services provider (credit card processing company), receipts from Your customers and Sub-Resellers will be processed by the merchant services provider(s) selected by Evonames and will be subject to any convenience fees and taxes.
- You give Evonames the authority to deduct any amounts from Your Points that is owed by You to Evonames, including amounts owed due to Your indemnification of Evonames for third party claims and any administrative costs, including costs which may be charged for accounts that are inactive.
- You give Evonames the authority to sell, take title to, and/or use any Collateral as a means of procuring some monetary or other satisfaction for any amounts owed by You to Evonames, including amounts owed due to Your indemnification of Evonames for third party claims and any administrative costs, including costs which may be charged for accounts that are inactive.
- You may earn commissions from sales generated from any Sub-Account(s) below Your Account. The commissions will amount to the difference between the following:
(i) the price charged to the Sub-Reseller, minus merchant service fees and taxes; and
(ii) the price charged for the Services. If after more than 90 days there is a remaining balance in commissions greater than US$25.00 (which allows time for chargebacks and reversed transactions), Your commissions could be transferred to Your Account balance, sent by check deposited in the U.S. mail to the address provided in Your Account or through direct deposit, if available. Commissions are separate from Your Point balance and will be reported through Your Account in Your Available Commission Balance.
It is Your responsibility to provide customer service, billing, and technical support to Your customers, Sub-Resellers and customers of Your Sub-Resellers. Evonames will provide telephone and/or email support to You 24 hours, 7 days per week. Evonames may choose to, but is not required to, provide support directly to Your customers. Evonames will, if needed, forward any communications to You, the applicable Sub-Reseller, or the Primary Service Provider (if Your Primary Service Provider is not Evonames) at Evonames’ discretion from registrants or from third-parties regarding Services provided in Your Account or any Sub-Accounts; however, Evonames reserves the right to respond to such communications directly if they choose. You will be in breach of this RSA and Evonames may terminate this RSA if Evonames finds that You are providing insufficient support to Your customers or Sub-Resellers.
Licensed Use of Trademarks and Technology
The Services may only be retrieved through the application programming interface (including the associated documentation, the "API"), Your Account, websites created by Evonames which use the API, updates and upgrades, and through such other means and technologies which Evonames makes available through its websites or downloads (collectively, the "Technology").
- You may use the Technology only for accessing and using the Services during the course of the term of this RSA with a non-exclusive, non-transferable, royalty-free, terminable license granted to You by Evonames. This license right may be sublicensed to Sub-Resellers in Your Account and in Sub-Accounts below Your Account, but only conditional on all license terms and restrictions of this RSA, only during the term of this RSA, and only as long as performance of the Services by Evonames has not been suspended.
- Evonames grants You a non-exclusive, worldwide, fully paid up, royalty free, terminable right and license to use Evonames’ trademarks (the "Trademarks") only as provided by Evonames and only as pre-approved in writing in relation to the marketing and promotion of the Services. All approved uses of Trademarks will adapt to the benefit of Evonames and must abide by Evonames’ Trademark and Branding Guidelines.
- Except for the rights accorded above, this RSA does not transfer from Evonames to You or Your customers any Evonames Trademarks, technology or intellectual property rights, and all rights, titles and interests in and to the Trademarks, Technology and intellectual property remain exclusively with Evonames.
- You cannot, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to obtain source code or other trade secrets from the Technology.
- You cannot branch or otherwise prepare imitations of the API.
- You cannot copy or use the Technology except as specified in this RSA.
- You cannot create, apply for, or otherwise acquire any rights in any Trademarks or any patent or copyright interest in the Technology and any derivative thereof ("IP Interest") which IP Interest would block, impede, or make more expensive Evonames’ continued use and enjoyment of the Technology. If the terms of this Section are not respected, any IP Interests created as a result will be assigned to Evonames at the point they are fixed in material form. You agree to execute any documents necessary to affect an assignment of any such IP Interests to Evonames without compensation.
- You cannot use the Technology to communicate with or control a system other than one(s) appointed by Evonames, and You may not access the Services using any access mechanism other than the Technology.
- You cannot abuse the Service infrastructure through any type of action or conduct which limits service to other users in the share Services and Technology.
In accordance with Evonames’ Registrar Accreditation Agreement with ICANN (the "RAA") You must abide by the following terms:
- You must not display the ICANN or ICANN-Accredited Registrar logo, or otherwise represent Yourself as accredited by ICANN unless You have written authorization from ICANN to do so.
- Any registration agreement You use with Your customers or Sub-Resellers will include all registration agreement provisions and notices required by the RAA and any ICANN Consensus Policies, and will identify Evonames as the sponsoring registrar or provide a way to identify the sponsoring registrar, such as a link to the InterNIC Whois lookup service. In addition, You must identify Evonames as the sponsoring registrar upon inquiry from Your customer or Sub-Resellers.
- You must ensure that the identity and contact information provided by Your customer of any privacy or proxy registration service offered or made available by You in connection with each registration will be deposited with Evonames or held in escrow or, alternatively, display a conspicuous notice to such customers at the time an election is made to utilize such privacy or proxy service that their data is not being escrowed. In the event that You violate this RSA, and such violation is harmful to consumers or public interest, the escrow agreement must provide that data will be released to Evonames. In the event that ICANN makes available a program granting recognition to resellers that escrow privacy or proxy registration data as detailed above, and You meet any other criteria established by ICANN in accordance with its Bylaws, You will have the right to apply to ICANN for such recognition.
- To the extent that Evonames is required by ICANN to provide a link to an ICANN webpage, You must make such a link available on Your website.
- Any other terms and conditions which come into effect through the revision of the RAA by ICANN or through the introduction of any amended or new ICANN consensus policy, whether or not Evonames gives you notice of such revisions, amendments, or new policies. In addition to any other right to terminate set forth in this RSA, Evonames specifically has the right to immediately terminate this RSA, without notice or right to cure, in the event that You violate any terms found in this Section 5.
License by You to Evonames
In connection with providing materials to Evonames in performance of the Services, You grant Evonames a limited license to modify, ada You guarantee that the materials provided by You to Evonames are exclusively Your property or that You have obtained appropriate licenses to the material such that Evonames’ use of the material in providing the Services will not subject Evonames to a claim.
Restrictions on Use of Services
You must not make any representations or guarantees about the Services to any of Your customers or Sub-Resellers or any other third party that are inconsistent with this RSA. You agree not to use the Services, or to allow Your customers or Sub-Resellers to use the Services for:
- The transmission of unsolicited email (spam);
- Repetitive, high volume inquires or other excessive use or abuse of the Services or Technology;
- Any activity which results in Evonames’ IP addresses being reported to spam blocking organizations or other organizations which attempt to police or monitor abuse of the Internet;
- Any illegal, dishonest, deceptive or unfair trade practices;
- Any use which fails to abide by customary industry policies or any applicable laws. In addition to any other right to terminate set forth in this RSA, Evonames may also terminate this RSA, without notice or right to cure, in the event that You violate any terms found in this Section 7.
Suspension or Termination of the Services
In addition to any other rights or remedies of Evonames in this document, Evonames reserves the right to suspend performance of the Services or to prevent use of or access to the Technology in the event of an unresolved breach of this RSA or suspension or cancellation is required by any policy now in effect or later adopted by ICANN. You agree that Your failure to adhere completely with the terms and conditions of this RSA and any Evonames rule or policy may be considered to be a material violation of this RSA and Evonames may provide You with notice of such violation either in writing or electronically (i.e. email). In the event You do not provide Evonames with material evidence that You have not violated Your obligations within ten (10) business days, Evonames may terminate this RSA and take any action available to Evonames under the applicable laws. Such action may be put into effect without notice to You and may include, but is not limited to, cancelling the registration of any of Your domain names and discontinuing any Services provided to You. In the case of a violation that may result in Your RSA being cancelled or Services being discontinued, no fees will be refunded to You.
Term of this RSA and Termination
This RSA is effective for the duration of one year from the date of creation of Your Account by Evonames. This RSA will then renew for an indefinite number of one-year terms. Either party may terminate this RSA upon at least thirty (30) days written notice (including notice via email). Evonames also retains the right to terminate this RSA immediately if Evonames determines, in its sole discretion, that You, Your customers or Your Sub-Resellers have failed to adhere to any term or condition of this RSA, or that Your use of the Services presents an unreasonable risk of harm to Evonames or its affiliates, the Service, other users, or members of the general public.
During the term of this RSA and for one (1) year after, each party must treat the other party's Confidential Information as confidential, and must not use such Confidential Information except as expressly permitted under this RSA. Each party will take reasonable measures to prevent the disclosure and unauthorized use of the Confidential Information of the other party; which will be no less than the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this RSA. Neither party will reveal to third parties the other's Confidential Information without the prior written authorization of the other party. For purposes of this RSA "Confidential Information" means any non-public information relating to either party's business, product plans, designs, costs, prices and names, finances, business opportunities, personnel, research development or know-how. "Confidential Information" does not include information that: (i) is or becomes publicly known or available through no fault of the receiving party; (ii) is already known by the receiving party at the time of disclosure; (iii) is independently developed or learned by the receiving party without reference to the other party's Confidential Information; or (iv) is lawfully obtained from a third party that does not have an obligation of confidentiality to the disclosing party. It is not a violation of this RSA to reveal Confidential Information of the other party pursuant to an order or requirement of a court, administrative agency, other governmental body, or securities exchange.
Disclaimer of Warranties
EVONAMES DOES NOT WARRANT THAT PERFORMANCE OF THE SERVICES OR USE OF THE TECHNOLOGY WILL BE UNINTERRUPTED, ERROR FREE, OR THAT IT WILL NOT BE NECESSARY FOR YOU TO PROVIDE NOTICE OF ERRORS TO YOUR CUSTOMERS OR SUB-RESELLERS.
You, at Your own expense, will indemnify, defend and hold harmless Evonames and its employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding based on or arising from any claim or alleged claim (i) arising from a violation by You of any covenant, representation or guarantee in this RSA, including but not limited to the ICANN Obligations set forth in Section 5; (ii) relating to any product or service of Yours; (iii) relating to Your use or Your Sub-Resellers use of the Services; or (iv) relating to Your domain name registration and related service business, including, but not limited to, Your advertising, domain name application process, systems and other processes, fees charged, billing practices and customer service; provided, however, that in any such case: (a) Evonames provides You with prompt notice of any such claim, and (b) upon Your written request, Evonames provides You with all available information and assistance reasonably necessary for You to defend such claim, provided that You reimburse Evonames for actual and reasonable costs. You will not enter into any settlement or compromise of any such indemnifiable claim without Evonames’ prior written authorization, which authorization will not be unreasonably withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Evonames in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
Limitation of Liability
- A material provision of entering into this RSA is that Evonames’ liability will be limited as follows: In relation to each component of the Services for which a separate fee is charged, Evonames will be liable in an amount no greater than the fees received by Evonames for performing the specific transaction(s) that gave rise to the liability. Evonames’ total liability for all claims of any sort will not exceed the total amount received by Evonames from You over the term of this RSA. Evonames will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration, or unintended disclosure of data, information, or content transmitted, received, or stored on its or any third party systems. With respect to passwords, account identifiers, and other systems used to control access to Your Account, it is Your responsibility to protect such passwords, account identifiers, and other systems. As a service to You, Evonames may, but is not required to, take reasonable measures to verify the identity of parties who claim to have lost or forgotten passwords and/or account information and to then provide the information to such parties and that Evonames will not be responsible to You for losses or claims for any unintentional disclosure of such passwords which may result thereby. Evonames is entitled to email passwords to designated email account(s), to call designated phone numbers, or to employ security questions as a means to verify the identity of the party entitled to control Your account.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS RSA, NEITHER PARTY WILL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES, OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS RSA, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
The parties to this RSA are independent contractors and have no right or authority to bind or commit the other party in any way without the other party's express written authorization to do so. This RSA does not create an employer/employee, joint venture, partnership, or agency relationship between the parties.
You must have prior written authorization of Evonames in order to assign, transfer, or otherwise dispose of this RSA or any of Your rights, benefits, or interests under this RSA. Any such assignment in violation will be void. Evonames may also assign this RSA to a party that acquires the assets of Evonames, which relate to performance of this RSA. Evonames may assign all or part of its rights and obligations under this RSA to its parent corporation, to a subsidiary, to its survivor in connection with a corporate reorganization, to any entity acquiring all or substantially all of its property, or to any entity into which it is merged or consolidated. No assignment of this RSA will operate to discharge the assignor of any duty or obligations hereunder without prior written authorization.
Unless specified otherwise, the fees for the Service do not include taxes. If Evonames is required to pay ICANN fees or United States or international sales, use, property, value-added, royalty, license or other taxes based on the licenses granted in this RSA or on Your use of the Services, then You must pay such taxes or fees. This section does not apply to taxes based on Evonames’ income.
Neither party will be in default or liable for any loss or damage resulting from delays in performance or from failure to perform or adhere to terms of this RSA (other than the obligation to make payments, which will not be affected by this provision) due to any causes beyond its reasonable control, which causes, but are not limited to, Acts of God or the public enemy; riots and insurrections; war; fire; strikes and other labor difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, components or machinery; acts of civil or military authorities; failure of telecommunications; or other casualty.
Governing Law and Arbitration
The laws of the United States of America and the State of Washington will govern this RSA, as if this RSA was a contract wholly entered into and wholly performed within the State of Washington. Any dispute, claim or controversy arising out of or relating to this RSA or the violation, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, will be determined by arbitration in King County, Washington, before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause will not prevent parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
You must comply with U.S. laws that prohibit or limit the ability of U.S. persons from directly or indirectly exporting or providing goods or services to certain persons or countries. You will comply with all U.S. export regulations if shipping to another country, including licensing requirements.
The parties hereby incorporate the requirements of 41 CFR 60-1.4(a), 300.5(a) and 741.5, if applicable. This RSA, together with all modifications, constitute the complete and exclusive agreement between You and Evonames, and supersedes and governs all prior proposals, agreements, or other communications and is not intended to confer upon any person or entity other than Evonames and You any rights or remedies hereunder. The failure of us to require Your performance of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by us of a violation of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this RSA will be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity will not render this RSA unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.