ENOM Partners Agreement

By using the Domain Name Registration and related services (hereinafter the "Services," defined further below), you signify your agreement to the terms and conditions contained in this Reseller Agreement (hereinafter, the "RSA"). This RSA is between you, your organization (if you are entering into this RSA on behalf of an organization), collectively referred to herein as "you" or "your" (and appropriate formatives), eNom, Inc. (the "Primary Service Provider(s)") and the backend service provider eNom, Inc. (the "Backend Service Provider"), including the Backend Service Provider's subsidiaries and all employees, directors, officers, representatives, agents and affiliates thereof. You declare your identity (including organizational affiliation) in the information which you provide to the Backend Service Provider through the interface which you use to configure and/or otherwise order the Services (referred to herein as "your Account"). It is a material part of this RSA that you warrant that the contact information you provide in your Account is accurate and that you will keep it up to date.

This RSA: When accepted and how modified.

A. You agree that this RSA is an application to become an independent reseller of the Backend Service Provider and that this RSA shall not become effective until i) the Backend Service Provider's receipt of all indicated funds, ii) the Backend Service Provider's receipt of an executed copy of this RSA, if required by the Backend Service Provider and iii) the Backend Service Provider's acceptance of this RSA (which acceptance may be evidenced by the Backend Service Provider's course of conduct in activating your Account).

B. The terms and conditions of this RSA may be modified from time to time. Modifications made to this RSA will become effective 30 days after the modifications are posted to your Account or immediately upon your acknowledgment of the revised terms. If you no longer agree to the terms and conditions of this RSA, you may stop using the Services and terminate the Services as described below in section 7.

 

The Services, Accounts, Sub-Resellers, and Sub-Accounts.

A. The Services include the following: a) Domain Name registration in the TLDs offered by the Backend Service Provider, including whois service; b) name server services (DNS); c) URL forwarding; d) email forwarding; e) POP & SMTP email; f) web-based email; g) website hosting; h) website and domain name availability monitoring; i) website and domain name traffic monitoring; j) website and domain name traffic monetization; k) pre-fabricated and hosted websites for the purpose of registering domain names and offering these Services ("PDQ"); l) pre- and post-expiration domain name resale services; m) name my map, phone, etc.; n) dynamic (real-time) DNS; o) phone and email support; p) merchant services for processing credit card orders; and q) such other services as the Backend Service Provider may make available through your Account and the API (collectively referred to as the "Services"). The Services do not include other services which a Primary Service Provider may provide to you. Primary Service Providers are independent resellers of the Backend Service Provider and may offer their own services under separate agreement.

B. Generally, you wish to obtain domain name registration services and related services offered by the Backend Service Provider for yourself and/or for your customers, if any. Primary Service Provider(s) may offer other services (not those of the Backend Service Provider) which are not subject to this RSA. The Backend Service Provider may utilize any of the ICANN-accredited registrars listed at http://www.enom.com/help/agreement_popup.htm when providing domain name registration services. You may only use your Account and/or the API (defined further below) to select and/or interact with the Services.

C. You and/or your customers may be the direct consumers of the Services. In addition, your customers may also be parties ("your Sub-Resellers") who wish to resell the Services to further downstream customers. Your Sub-Resellers will have "Sub-Account(s)" which, in this RSA, are said to be "below" your Account. Your Sub-Resellers may also have customers, Sub-Resellers, and Sub-Accounts below them. You are the Primary Service Provider to your immediate Sub-Resellers and your Sub-Resellers are the Primary Service Provider to their Sub-Resellers. In other words, accounts with the Backend Service Provider are inverse hierarchical tree structures; your Account may be the apex of a local hierarchy below which may be multiple Sub-Accounts, each of which may also have multiple Sub-Accounts and each of which acts as a Primary Service Provider for the Sub-Accounts below it in the hierarchy.

D. You have the ability, through your Account, to control the creation, access to, pricing of, and use of your Account and all Sub-Accounts below your Account. You agree to be responsible for and guarantee all payments and other performance obligations due to the Backend Service Provider for all Services provided to you, your customers, your Sub-Resellers and all Sub-Resellers and customers below your Account. When there is an unresolved issue (such as non-payment or dishonoring of payment for Services already rendered or a failure to provide customer support) between the Backend Service provider and a customer and/or a Sub-Reseller below your Account, the Backend Service Provider will first seek satisfaction from the Primary Service Provider who has the most immediate relationship with the party causing the issue; however, if the Backend Service Provider is not able, after commercially reasonable efforts, to obtain satisfaction from such Primary Service Provider, you agree that the Backend Service Provider may then seek satisfaction from successively higher Primary Service Providers, and ultimately from you, in the hierarchy of accounts between the party causing the issue and the Backend Service Provider. You are responsible in this way and make this guarantee because you have the ability to control the creation, access to, pricing of, and use of your Account and all Sub-Accounts below your Account and because you benefit therefrom. You agree that the Backend Service Provider may charge you reasonable administrative fees for dealing with complaints, subpoena requests, and related issues caused by you, your customers, your Sub-Resellers and all Sub-Resellers and customers below your Account.

E. Certain of the Services are offered only subject to additional terms and conditions of the Backend Service Provider and which are available at http://www.enom.com/terms/. To use these Services, customers must agree to these additional terms and conditions. You agree to indemnify and hold harmless the Backend Service Provider for any intentional or negligent failure by you or a Sub-Reseller below your Account to obtain the consent of any customer to these additional terms and conditions.

F. If you die or otherwise become unavailable (the Backend Service Provider is unsuccessful in making reasonable attempts to contact you), and if you have customers and/or Sub-Accounts, the Backend Service Provider may assume direct control over such customers and Sub-Accounts. If, under such circumstances, you have a Primary Service Provider, you agree that the Backend Service provider may elect to allow the Primary Service Provider to assume direct control over such customers and Sub-Accounts.

 

Points, payments, and commissions.

A. You may be required to purchase "Points" to obtain all or certain of the Services. When you purchase Points, your price for the Points will also include certain costs, such as online access fees, taxes, etc., which will not be reflected in your Point total. For example, in order to refill* 100 Points in your Account via a credit card,* you will be charged $103.00, which includes 3% convenience fee for online access. Points are non-refundable and are not transferable without the consent of the Backend Service Provider, which may be denied for any reason. In general, if you purchase larger volumes of Points you are entitled to obtain Services for fewer Points. If you have a Primary Service Provider, your pricing for the Services is determined by your Primary Service Provider, otherwise, your pricing for the Services is determined by the number of Points you purchase when you apply to open your Account. The different pricing levels are described in greater detail when you apply to open your Account.

B. * Note: Initial purchases of Points shall not include the 3% convenience charge for online access fees. For subsequent credit card transactions (account refills), 3% of the transaction amount will be charged for using the credit card online pre-payment service as an online access convenience fee. The Backend Service Provider does accept checks and/or wire transfers with no additional charges. You will be responsible for all Merchant Services fees, outlined in the Merchant Services Agreement at http://www.enom.com/resellers/CCagreement.asp, for any transaction originating from all Sub-Accounts below your Account.

A. EXCEPT AS EXPRESSLY PROVIDED IN THIS RSA, NEITHER PARTY SHALL 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, EXCEPT AS PROVIDED FOR IN THE SECTION RELATING TO YOUR INDEMNIFICATION OF THE BACKEND SERVICE PROVIDER, FOR ANY CLAIM AGAINST THE OTHER PARTY BY A 3RD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

B. Independent Contractors. The parties to this RSA are independent contractors and shall 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. Nothing contained in this RSA shall be deemed or construed to create for any purpose an employer/employee, joint venture, partnership, or agency relationship between the parties.

C. Assignment. You agree not to assign, transfer, or otherwise dispose of this RSA or any of your rights, benefits, or interests under this RSA without written consent of the Backend Service Provider. The Backend Service Provider may assign this RSA to a party which acquires the assets of the Backend Service Provider which relate to performance of this RSA. The Backend Service Provider 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 shall operate to discharge the assignor of any duty or obligations hereunder without prior written consent.

D. Taxes. Unless specified otherwise, the fees listed in this RSA do not include taxes. If the Backend Service Provider 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 such taxes or fees shall be billed to and paid by you. This section shall not apply to taxes based on the Backend Service Provider's income.

E. Force Majeure. Neither party shall be in default or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with terms of this RSA (other than the obligation to make payments, which shall not be affected by this provision) due to any causes beyond its reasonable control, which causes include 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.

F. Governing Law and Venue for Disputes. This RSA and any disputes regarding its interpretation and enforcement shall be governed by the laws of the United States of America and the State of Washington, as if this RSA was a contract wholly entered into and wholly performed within the State of Washington. Any action to enforce this RSA or any matter relating to your use of the Backend Service Provider's or the Backend Service Provider's subsidiaries' services shall be brought exclusively in the United States District Court for the Western District of Washington, or if there is no jurisdiction in such court, then in a state court in King County, Washington state. You consent to the exclusive personal and subject matter jurisdiction of such courts and agree that exclusive venue therein is proper.