Mailtraq Reseller Program Agreement
1. General Terms
1.1 This agreement describes the terms and conditions for participation in the Mailtraq Reseller Program. The terms "affiliate," "you," and "your" are referring to you, the Reseller. "We", "our" and "Enstar" refer to Enstar LLC. ?Scheme? refers to the reseller program. ?Mailtraq? refers to the mail-server software program.
1.1.1 A license to use Mailtraq is sold under the condition that the terms and conditions hereunder are equally applied to your subsequent transactions whether by way of trade or otherwise.
1.2 Agreement Duration
1.2.1 This agreement will begin upon our acceptance of your application and will end when terminated by either party. By purchasing from us you expressly agree to the terms and conditions herein described. By accepting your first purchase order we confirm our acceptance of your application. Termination may happen at any time, with or without cause, by giving the other party 30 days written notice of termination.
1.3.1 By delivering a Change Notice to your registered office address or other address that you designate and we acknowledge in writing, we may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. Proof of delivery will be deemed proof of receipt. These modifications may include, but are not limited to changes in the scope of available discounts, payment procedures and terms and conditions of use. If any of the modifications are unacceptable to you, your only recourse is to terminate this Agreement. If you purchase from us following the receipt of a Change Notice or new agreement, it will be considered as your acceptance of the change.
1.4.1 You will receive an agreed discount from the retail prices published from time to time by us for Mailtraq from orders placed through your secure link to our website EXCEPT THAT no discount is allowed on your original purchase of Mailtraq. That is: you cannot buy from yourself or be your first purchase for the sole purpose of discounting your own software purchase.
1.4.2 In order to prevent license abuse it is a condition of the reseller scheme that such details as are requested from time to time on the website regarding the end-user of Mailtraq must be provided in the manner requested.
1.4.3 Additional discounts may be agreed for resellers who sell large numbers of copies of Mailtraq. Such discounts will be as agreed from time to time and as detailed in a schedule to these General Terms. Additional discounts will be aggregated month by month and will be paid retrospectively on or before the business day following the 15th day of the month following the sale.
1.4.4 Special prices and editions may be agreed for resellers at the sole discretion of Enstar. Such prices and editions will be as agreed from time to time and as detailed in a schedule to these General Terms. Except where expressly stated in any such schedule the General Terms and Conditions of Use herein detailed apply to all special editions of Mailtraq.
2. Reseller Functions
2.1. Reseller will function as a value-added reseller of Mailtraq.
2.2. Reseller may advertise in publications of general circulation and undertake any reasonable form of promotion of the product that does not conflict with paragraph 5.2.
2.3. Reseller's rights to resell Mailtraq within a specific territory shall not be exclusive unless otherwise agreed in writing.
3.1. All prices for services provided by us to you are in US Dollars and are subject to all applicable taxes at the rate prevailing at the tax point of sale.
3.2. You may set the prices paid by your customers for Mailtraq at an amount of your choosing.
3.3 We retain the right to revise our prices to you. Such revisions shall apply to orders received by Enstar on or after the effective date of the revision. A revision of price or edition will not require a Notice of Change as laid out in Paragraph 1.3.1 Prices for Mailtraq will be as displayed from time to time on the website www.mailtraq.com/purchase or such website as we may from time to time designate. We will make reasonable efforts to inform you by email of any changes in prices or editions, but it remains your responsibility to confirm for yourself the current price of Mailtraq before entering into contractual agreements with third parties.
4. Acceptance & Payment
4.1 All orders are subject to acceptance by Enstar and payment is due prior to the release of a license number.
4.2. Subject to the provisions herein, trading accounts may be opened for your use by us at our sole discretion.
4.2.1 Payments on trading accounts shall be made monthly or as otherwise agreed.
4.3. Payment shall be made in US Dollars to Enstar into the account designated by Enstar or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. There shall be no grace period. If due to bank charges, transfer fees, or the like, Enstar should receive less than its invoice amount, other than charges by credit card companies, Enstar will re-invoice you for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by Enstar within thirty (30) days after presentation, Enstar will impose a debt service charge amounting to one and a half percent (1.5%) above the base rate quoted from time to time by Fleet Bank, Boston of the overdue balance for each 30-day period or fraction thereof the overdue amount remains unpaid. In the event that any amount remains unpaid forty-five (45) days after presentation of invoice, Enstar may discontinue, withhold, or suspend services to you and/or your customer(s) to whom such unpaid amounts relate. Failure of your clients to pay in no way relieves your obligations to make full payment. Title passes on receipt of payment and not delivery.
4.4. You hereby agree to pay any and all legal fees, court costs, and related expenses incurred by Enstar in the collection of any amount due it.
5. Duties of Reseller
5.1. You will support end users by providing technical support in the local language of your main location.
5.2. Mailtraq is sold under the absolute condition that it may not be used to send unsolicited commercial emailing, bulk emailing, copyright violation, defamatory speech, distribution of Internet viruses, worms, Trojan horses and other destructive activities, flaming or illegal pornography or abusive UseNet postings. Any such use, or what may be reasonably interpreted as such use would be a breach of the license of use and not withstanding any payments made or received will cause Enstar to take such action as is necessary to preserve the good name of Mailtraq at their sole discretion.
5.3.1 In acting as a reseller you will conduct yourself in an ethical and lawful manner, will exercise your best efforts to achieve a high level of customer satisfaction, and will do nothing to bring the reputation of Mailtraq into disrepute.
6. Duties of Enstar
6.1 Enstar will use its best endeavours to support you in all matters relating to the resale of Mailtraq
7. Rules & Regulations
Enstar may impose reasonable conditions regarding the use of its services from time to time. You shall impose such conditions on your customers to the extent necessary to ensure compliance.
8. Limitation of Enstar Obligation & Liability
8.1. Enstar will utilize its best efforts to maintain acceptable performance of services contracted for, but Enstar makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. Enstar cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Enstar will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system or by the use of Mailtraq. Enstar shall not be liable to you or any of your customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non - deliveries, or service interruptions whether or not caused by the fault of Mailtraq or negligence of Enstar.
8.2. Enstar may discontinue servicing Mailtraq. Such discontinuation or requirement may not be unreasonable, however, and Enstar agrees to provide you with reasonable notice via a Notice of Change of any such intent to discontinue.
8.3. Services provided by Enstar to you shall be deemed accepted for all purposes thirty days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by Enstar within that 30-day period. No claim related to such accepted services shall be raised.
8.4. Enstar?s liability to you, and any end user of Mailtraq is limited to the amount paid to and received by Enstar for services not accepted. In no event shall Enstar be liable to you, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if Enstar has been advised of the possibility of such damage.
8.5. You will take all necessary measures to preclude Enstar from being made a party to any lawsuit or claim regarding Mailtraq provided to any Reseller or end user. You hereby agree to indemnify and hold harmless Enstar from any and all claims of whatever nature brought by any of your customers against Enstar in excess of the remedy set forth in paragraph 8.4.
9.1 You acknowledge that by reason of your relationship with Enstar hereunder, you may have access to certain information and materials relating to Enstar?s business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Enstar, which value would be impaired if such information were disclosed to third parties. You agree that you will not use in any way for your own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by Enstar. You further agree that you will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by you of any such confidential information in your possession, and all confidential materials shall be returned to Enstar or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, Enstar shall be entitled to injunctive relief, which relief shall not be contested by you.
10. Relationship of the Parties
10.1 The relationship between Enstar and you is that of vendor and purchaser. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. You have no authority, apparent or otherwise, to contract for or on behalf of Enstar, or in any other way legally bind Enstar in any fashion, nor shall you be authorized to make any representations about Mailtraq or its services other than to set forth Mailtraq's responsibilities as outlined in this agreement and in our published information.
11.1 The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in paragraph 9 shall be subject to formal accredited arbitration upon written demand of either party. Arbitration shall take place in Hartford, Connecticut, USA or at another location if the parties so agree.
12.1 Reseller's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Enstar, which consent shall not be unreasonably refused.
13. Partial Invalidity
13.1 If any provision of this agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Enstar and you agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
14. Applicable Law, Jurisdictional Matters
This agreement takes effect when accepted by Enstar in Connecticut, USA. It is to be governed by and construed under the laws of the Connecticut, USA which shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this agreement. You hereby expressly consent to (1) the use of Connecticut law and (2)service of process being effective upon it by registered mail sent to the address set forth in paragraph 1.3.1 of this document, as may be changed from time to time by written notice actually received by Enstar. Enstar will comply with all orders issuing from tribunals having jurisdiction over Enstar, and that such compliance could affect the services provided by Enstar to you or your customers; you agree to hold Enstar harmless from any claims resulting from such compliance.
This concludes the Mailtraq Reseller Program Agreement.