Please read these terms and conditions carefully, as they contain important information about your rights and obligations. You can print out these terms and conditions by clicking on the print icon on your browser.
1. Introduction
1.1 Please read these terms and conditions carefully before agreeing to become a Servertastic Reseller. Servertastic is a trading name and registered trademark of Servertastic Limited (Servertastic). In these terms and conditions Servertastic is referred to as ‘we’ or ‘us’ and you (Reseller) are referred to as ‘you’.
1.2 In particular, we draw your attention to clauses 8 (Refunds) and 12 (Liability). By signing-up for a reseller account and/or logging into the reseller system you agree to be legally bound by the Conditions.
1.3 If you do not wish to be bound by the Conditions then you may not resell Products purchased from the Website.
2. Definitions and interpretation
1.1 In these terms and conditions the following words and phrases shall have the following meanings:
Appointment: the agreement of the parties set out in clause 3.1.
Conditions: Servertastic’s terms and conditions for resellers as they may be modified and posted on the Website from time to time.
End User: a person or entity that places an order for the Product with Reseller.
End User Agreement: Supplier’s standard licence agreement provided in ‘click-wrap’ form with the Products and which must be accepted by each End User.
Intellectual Property Rights: means all intellectual property rights anywhere in the world (including present and future intellectual property rights).
Points Matrix: a package of points available for purchase by the Reseller set out in the Reseller Area as modified and posted by Servertastic from time to time.
Points Purchase Deposit: the price of points set out in the Points Matrix.
Price Matrix a package of Products and prices in points set out in the Reseller Area as modified and posted by Servertastic from time to time.
Products: the software products set out in the Price Matrix on the Website as being available from time to time for resale by the Reseller.
Reseller Area: the log in area of the Website made available to the Reseller by Servertastic following the Appointment.
Standard Terms and Conditions: the standard terms and conditions for purchases from the Website as modified and posted by Servertastic from time to time https://www.servertastic.com/terms.
Supplier: means the person that owns a Product and which agrees to licence it to End Users.
Term: the term of the Appointment as set out in clause 11.
Website: the Servertastic website on the domain servertastic.com.
3. Appointment and licence
3.1 In consideration of the Points Purchase Deposit Servertastic appoints Reseller as a non-exclusive reseller of the Products to the End Users for the Term and Reseller agrees to act in that capacity subject to the Conditions.
2.2 It is agreed that both parties shall be entitled to promote, market or sell their own products (including but not limited to the Products) or any third party product to their own customers during the Term.
2.3 Servertastic, in consideration of Reseller’s performance of its obligations under these Conditions, grants to Reseller a non-transferable, non-exclusive right to use, sub-license, market and support the Products (including the Intellectual Property Rights therein) to the extent necessary for Reseller to perform its obligations under the Conditions.
4. Intellectual property rights
4.1 The Supplier is the owner or licensee of all Intellectual Property Rights forming part of the Products and Servertastic has the right to grant the sub-licences set out in the Conditions.
4.2 The Conditions shall not be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Products to Reseller or any other party.
4.3 Reseller agrees that it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Products in any manner to third parties except as is expressly permitted otherwise in the Conditions.
5. Servertastic’s obligations and rights
5.1 Servertastic agrees with Reseller throughout the Term to provide such support to Reseller as Reseller may reasonably require to enable it to fulfil its obligations and exercise its rights under the Appointment.
5.2 Servertastic agrees with Reseller to use its reasonable endeavours to remain invisible to the End User.
6. Points, prices, payment and delivery
6.1 On payment in cleared funds by Reseller of a Points Purchase Deposit Servertastic will credit the account of Reseller with the number of points set out against the currency and size option in the Points Matrix selected by the Reseller. Servertastic will use its reasonable endeavours to ensure that points are credited to the Reseller’s account as soon as practicable after receiving payment for them.
6.2 The purchase of points by the Reseller will be subject to the Standard Terms and Conditions as amended by the Conditions. In the event of any inconsistency or conflict between the Standard Terms and Conditions and the Conditions, the provisions of the Conditions shall prevail. For the avoidance of doubt by agreeing to the Conditions the Reseller is acknowledging that it is buying Products for business purposes and that it is not a consumer.
6.3 All points must be purchased through the Points Matrix. Where Servertastic and Reseller have agreed a special price Servertastic will amend the Points Matrix to include it.
6.4 Points purchased under condition 6.1 may be used by Reseller to purchase Products from the Price Matrix.
6.5 The order and delivery process for each Product will be that set out in the Reseller Area.
6.6 Servertastic will deduct the relevant number of points from the points available in the Reseller’s account when the Products are ordered by the Reseller and will deliver each Product in accordance with the order and delivery process set out in the Reseller Area.
6.7 No order will be fulfilled if there are insufficient points in the Reseller’s account.
6.8 Any times or dates stated on the Website for delivery are estimates only. Servertastic reserves the right to delay delivery of the Products or any of them until it has received payment in full. If Servertastic is unable for any reason to deliver an ordered Product it will notify the Reseller and refund the points deducted for that Product in accordance with clause 6.6 to the Reseller’s account.
7. Inactive accounts
7.1 If the Reseller has not:
(a) made a Points Purchase Deposit; or
(b) purchased any Products
in any period of twelve (12) months, Servertastic will deduct the lesser of:
(i) one hundred (100) points; and
(ii) the remaining balance of points in the Reseller’s Account
from the Reseller’s account in consideration of maintaining the inactive account. A deduction will be made for each successive twelve (12) month period of inactivity.
7.2 If the balance of points on the Reseller’s account remains at zero for any period exceeding twelve (12) months, Servertastic will be entitled to terminate the Reseller’s account immediately and without notice.
7.3 If a Reseller’s account has placed no orders for a period of six (6) years the account will be deemed abandoned. All remaining points will be deducted and the account deleted.
8. Refunds and cancellations
8.1 The Reseller shall not be entitled to a refund of any Points Purchase Deposit except as set out in this clause 8 and in clause 11.4.
8.2 Clause 7.1 of the Standard Terms and Conditions shall apply to Resellers provided that any refund shall be of the points used to purchase the Product concerned.
8.3 Clause 8 of the Standard Terms and Conditions shall not apply to Resellers in any circumstances.
9. Reseller’s obligations
9.1 Reseller undertakes and agrees with Servertastic that it will at all times during the Term (and where applicable following termination of the Appointment) observe and perform the Conditions including but not limited to:
(a) in all correspondence and other dealings relating directly or indirectly to the licensing of or other transaction relating to the Products, clearly indicating that it is acting as a reseller and not as author and developer of any of the Products;
(b) using at all times its best endeavours to promote and extend the market for the Products and work diligently to obtain orders from End Users for the Products;
(c) at its own expense providing advertising, publicity, promotion and marketing for the Products;
(d) issuing Access Codes to End Users after the End User has paid Reseller for the Product [and entered into the End User Agreement];
(e) handling all sales queries it receives from End Users;
(f) dealing with all aspects of End User billing and payment;
(g) dealing with and paying, whether on its own account or as agent of Servertastic, all applicable taxation whether in the country in which Reseller is doing business or in the country in which Reseller is established.
(h) ensuring that any servers used by Reseller in performing its obligations as a Reseller are secure to the reasonable satisfaction of Servertastic; and imposing on End Users to the maximum extent permitted by applicable laws terms and conditions of business no less onerous than those imposed by Servertastic on End Users purchasing Products directly from the Website.
9.2 Reseller undertakes not to:
9.2.1 translate, adapt, vary, modify, disassemble, decompile or reverse engineer any of the Products; or
9.2.2 modify, amend, add to or in any way alter any of the Products supplied to it or to End Users by it, without Servertastic’s or Supplier’s prior written consent.
10. Warranty
10.1 Servertastic warrants that for any Product purchased by Reseller:
(a) Servertastic has the right to sell the Product to Reseller;
(b) the Product will correspond with the description provided by Servertastic to Reseller; and
(c) the Product will be of satisfactory quality.
10.2 Servertastic shall not be liable for a breach of any warranty in clause 10.1 unless Reseller gives notice of the defect to Servertastic within [7] days after the date of delivery of a Product to Reseller and if the Product does not conform with any of the warranties Servertastic shall within [7] days of receiving such notice and at its option replace such Product or refund the points deducted for that Product in accordance with clause 6.6 to the Reseller’s account.
10.3 Servertastic makes no representations and gives no warranties, express or implied that making the Products available in any particular jurisdiction outside the UK is permitted under any applicable non-UK laws or regulations.
11. Term, suspension and termination
11.1 The Appointment shall become effective when the Reseller creates a reseller account and shall continue in force until terminated:
(a) by either party at any time immediately on giving written notice; or
(b) in accordance with clause 7.2; or
(c) in accordance with clause 7.3; or
(d) in accordance with clause 11.2.
11.2 Either party shall be entitled forthwith to terminate the Appointment by written notice to the other if:
(a) that other party commits any material breach of any of the provisions of the Conditions and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
(b) becomes insolvent; or
(c) that other party ceases, or threatens to cease, to carry on business
and if Servertastic terminates the Appointment under this clause the Reseller shall not be entitled to any refund for any points then standing to its account.
11.3 Servertastic shall have the right at any time on giving written notice to suspend the Appointment with immediate effect provided that its reasons for doing so are set out in such notice.
11.4 On termination of the Appointment by Servertastic under clause 11.1(a), the Reseller shall be entitled to a refund of one US dollar (US$1) for each point standing to its account on the date of such termination and Servertastic will pay the refund to Reseller within seven [7] days after such date. Where the Reseller made its Points Purchase Deposit in a currency other than US dollars, Servertastic shall pay the refund in that currency having applied the conversion rate appearing on the Website on the date of such termination. For the avoidance of doubt, where the Appointment is terminated by the Reseller under clause 11.1(a), the Reseller shall not be entitled to a refund.
11.5 On the termination of the Appointment for any reason Reseller shall cease to promote, market, advertise or solicit the End Users for the Products.
12. Limitation of liability
12.1 The following provisions set out the entire financial liability of the each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party in respect of:
(a) any breach of the Conditions;
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Appointment.
12.2 Nothing in these Conditions excludes or limits the liability of either party:
(a) for death or personal injury caused by the either party’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the party’s to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.3 Subject to clauses 12.1 and 12.2:
(a) each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Appointment shall be limited to the price of the Products supplied to Reseller in the twelve month period before the event giving rise to the liability under this sub-clause; and
(b) neither party shall be liable to the other party for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Appointment.
12.4 Reseller is solely responsible for ensuring that it is legally able to resell the Products and Servertastic shall have no liability, to the extent permitted by applicable laws, for any costs, losses or damages resulting from or related to the purchase or attempted purchase of the Products from Reseller by persons in jurisdictions outside the UK or who are nominees of or trustees for citizens, residents or nationals of other countries.
12.5 Reseller is solely responsible for all orders placed via the Reseller Area of the Website and shall take all necessary steps to ensure that no unauthorised persons access or place orders for Products through the Reseller Area of the Website. Reseller shall be liable to pay Servertastic for all orders for Products placed via the Reseller Area of the Website whether authorised, unauthorised or fraudulent.
13. Amendment
No amendment or variation of the Conditions shall be effective unless in writing and signed by a duly authorised representative of each of the parties.
14. Nature of relationship
The Appointment shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Conditions.
15. No assignment
Reseller shall not, without the prior written consent of Servertastic, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Appointment.
16. Data protection
16.1 Servertastic undertakes to comply with its obligations under the Data Protection Act 1998 throughout the Term.
16.2 Reseller undertakes to comply with its obligations under data protection laws applicable in the countries where it does business throughout the Term.
16.3 Reseller acknowledges that personal data pertaining to End Users supplied by it to Servertastic may be transferred outside the European Economic Area (EEA) by Servertastic and undertakes that, where the consent of the End User to such transfer is required by applicable data protection laws, it shall obtain the consent of such End User to such transfer by Servertastic before supplying such personal data to Servertastic.
16.4 Where the country where the Reseller does business is in the EEA and Reseller intends to transfer personal data pertaining to any End User outside the EEA, Reseller undertakes that it shall only do so in accordance with any data protection laws applicable in the country where the Reseller does business and, where required by any data protection laws applicable in the country where the Reseller does business, before transferring any personal data pertaining to any End User outside the EEA it shall first have obtained the consent of the data subject to such transfer.
17. General
17.1 All notices under the Conditions shall be in writing and shall be deemed given when personally delivered, when received in full by e-mail, (where Reseller’s address is in the UK) three (3) days after being sent by pre-paid first class post, or (where Reseller’s address is outside the UK) ten (10) days after being sent by pre-paid airmail to the address of the party to be noticed as set forth in this Agreement or such other address as such party last provided to the other by written notice.
17.2 No failure of either party to exercise or enforce any of its rights under the Conditions will act as a waiver of such rights.
17.3 The Conditions are made only in the English language. If there is any conflict in the meaning between the English language version of the Conditions and any version or translation of the Conditions in any other language, the English language version shall prevail.
17.4 If any portion of the Conditions is illegal or unenforceable, such portion(s) shall be excluded from them to the minimum extent required and the balance of the Conditions shall remain in full force and effect and enforceable.
17.5 The Appointment supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof and can only be modified or waived by a subsequent written agreement signed by both parties. The parties confirm that they have not entered into this Appointment on the basis of any representation that is not expressly incorporated into the Conditions.
17.6 The parties confirm their intent not to confer any rights on any third parties by virtue of the Appointment and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to it.
18. Dispute resolution
18.1 The Appointment shall be governed by and construed in accordance with the laws of England and Wales except and only in the case where Reseller is established in an EU Member State to the extent that mandatory rules (within the meaning of the Rome Convention 1980) override.
18.2 The parties accept the exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with the Appointment except and only in the case where Reseller is established in an EU Member State for claims or matters which are reserved to courts of exclusive jurisdiction (within the meaning of EU Regulation 44/2001).
18.3 If a dispute arises Reseller undertakes that, before taking any other steps whatsoever, it shall, at its own cost and expense, identify and notify in writing to Servertastic any applicable mandatory rules or matters reserved to courts of exclusive jurisdiction.
18.4 In the event that an End User who is a consumer brings a claim before any court, tribunal or other decision-making body, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, against Servertastic arising in connection with the performance or contemplated performance of the Appointment by Reseller, Reseller indemnifies and shall keep indemnified Servertastic from all costs, losses or damages arising from such claim.
