THIS AGREEMENT (the “Agreement”), by and between VARStreet Inc (“VARStreet”), a Delaware corporation having its principal place of business at 101 Middlesex Tpk, Suite 6, Burlington MA 01803 USA, and Client (as set forth on the Subscription Services Order defined hereinafter) (each being referred to individually as a “Party” and collectively as the “Parties”), is entered into as of the effective date of that certain Subscription Services Order, to which this Agreement is attached as Exhibit A, executed by VARStreet and Client (the “Subscription Services Order”).
A. VARStreet is in the business of providing certain web-based applications and related services to value-added resellers and is willing to provide services to Client on the terms and subject to the conditions set forth below.
B. Client desires to engage VARStreet, and VARStreet desires to be engaged by Client, to provide certain services on the terms and subject to the conditions set forth below.
In consideration of the mutual promises set forth in this Agreement, the receipt and sufficiency of which is acknowledged by the Parties, VARStreet and Client hereby agree as follows:
VARStreet agrees to provide Client access to the web-based application(s) set forth in the Subscription Services Order (the “Web Application”) via the VARStreet website (the “Site”) (Schedule 1). Any use of the Web Application will constitute use of the Site. VARStreet is not responsible to Client for providing any services or performing any tasks not specifically set forth in this Agreement. Client may order from VARStreet, and VARStreet may agree to provide to Client, additional services from time to time by entering into an amended Subscription Services Order executed by both Parties.
1.2 Limitations. Client agrees not to reproduce, duplicate, sell, resell or exploit for any commercial purposes, any portion of the Site (including the Web Application), access to the Site, or use of the Site other than as provided for in this Agreement. Client agrees that any and all retrieval, copying, or misappropriation of content, including product data, from the Site by any means including, but not limited to web crawling, web spidering, offline browsing, and screen scraping is a violation of VARStreet’s copyrights and may result in civil and criminal penalties. Violators will be prosecuted to the maximum extent available by law.
1.3 Limited Use of License. Client agrees that through the term of this Agreement, VARStreet grants Client a non-exclusive, non-transferable, non-assignable license to use the Site solely for the purpose of accessing the Web Application.
2.1 Proprietary Rights of Client. As between Client and VARStreet, all data and any copyrights, trademarks, patents, trade secrets, or other intellectual property provided to VARStreet by Client pursuant to this Agreement (collectively, the “Client Content”) shall remain the sole and exclusive property of Client or, if such Client Content is licensed to Client by a third party, such third party. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant VARStreet any ownership right in, or license to, the Client Content. Client hereby grants to VARStreet, or warrants to VARStreet that the owner of such Client Content has expressly granted to VARStreet, a royalty-free, perpetual, irrevocable, fully sub-licensable, non-exclusive right to use, reproduce, modify, transmit, distribute, perform, display, and delete the Client Content (in whole or in part) worldwide and/or to incorporate such Client Content in other works in any form, media, or technology now known or later developed. VARStreet will take reasonable precautions such that these rights are only used for legitimate business purposes related to (a) the transmission, routing, or transient storage of communications, or (b) the management or operation of the Site and/or related applications and services.
2.2 Proprietary Rights of VARStreet. All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by VARStreet or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by VARStreet to provide services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto, shall remain the sole and exclusive property of VARStreet or its suppliers.
2.3 Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes, formulas and know-how, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall include any information designated as such or that ought in good faith to be treated as confidential due to its nature or the circumstances surrounding its disclosure. Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party undertakes to retain in confidence any Confidential Information received, shall take precautions at least as great as those taken to protect its own confidential information of a similar nature, shall notify its employees of their confidentiality obligations with respect to the Confidential Information, and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement. Upon request of a disclosing Party, the receiving Party agrees to return all materials, in any medium, which contain, embody, reflect, or reference all or any part of any Confidential Information of the disclosing Party.
3.1 Client Content. Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party websites, (b) the accuracy of its information and materials on the Site and otherwise provided to VARStreet, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, VARStreet reserves the right, in its sole discretion, to exclude or remove from the Site any hypertext links to third party websites, any Client Content, or any other content, which, in VARStreet’s sole reasonable discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes VARStreet to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on VARStreet to monitor or exert editorial control over the Site.
3.2 Limitations on Client Content. Client shall not place and/or cause to be placed on the Site any Client Content or materials: (a) which are obscene, threatening, malicious, untrue, misleading, harassing, libelous, defamatory, abusive, tortuous, harmful (including but not limited to viruses, corrupted files, or any other similar software or programs), or otherwise objectionable; (b) which infringe on or violate any applicable law or regulation or any proprietary, contract, privacy or other third-party right; or (c) which otherwise expose VARStreet to civil or criminal liability. Any such materials placed on the Site that do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.
3.3 Chat Rooms and Bulletin Boards. Chat rooms, bulletin boards and discussion forums may not be implemented on the Site by or on behalf of Client without the prior written approval of VARStreet.
4.1 Username and Password. Client’s username and password are required in order to access restricted portions of the Site (including the Web Application). Client agrees to protect its username and password, and not to disclose its username or password to any unauthorized user. It is Client’s sole responsibility to safeguard the security of its username and password and their use in accessing the Site. Any unauthorized use of Client’s username and password by any person shall be Client’s sole responsibility. Client authorizes VARStreet to assume that any person accessing the Site with Client’s username and password is either Client or is authorized to act on behalf of Client. Client agrees to change its password periodically or when Client has reason to believe that the security of its password is in danger.
4.2 Additional Obligations. Client agrees not to do any of the following while accessing the Site:
(a) intentionally or unintentionally violate any applicable law or regulation
(b) access, tamper with, or use areas of the Site that Client is not authorized to access or use
(c) tamper with postings of other users’ accounts or other users
(d) gather and use information, such as other users’ email addresses, available from the Site to transmit any unsolicited advertising, “junk mail,” “spam,” or “chain letters”
(e) frame or link to the Site except with prior written consent of VARStreet
(f) impersonate or misrepresent Client’s affiliation with any person or entity
The minimum and recommended system requirements for optimal performance are identified on Schedule 2 hereto.
6.1 Subscription Fees. Client shall pay to VARStreet all fees for the services described herein, in accordance with the applicable fee and payment schedule set forth in the Subscription Services Order. Client shall pay these fees in order for Client to have access to restricted portions of the Site (including the Web Application).
6.2 Failure of Payment. Failure of Client to pay the Subscription Fees within 10 days after each due date set forth in the Subscription Services Order shall be deemed a material breach of this Agreement and, at VARStreet’s sole discretion, shall result in the immediate termination of this Agreement pursuant to Section 10.2 below.
6.3 Additional Payment Terms. Except as set forth in the Subscription Services Order, Client agrees to pay its fees using Visa, MasterCard, or American Express only. VARStreet’s pricing is subject to change from time to time, as indicated on the Site except as set forth in the Subscription Services Order.
7.1 VARStreet. VARStreet represents and warrants that (a) VARStreet has the power and authority to enter into and perform its obligations under this Agreement, and (b) VARStreet’s Services under this Agreement shall be performed in a workmanlike manner.
7.2 Client. Client represents and warrants that (a) Client has the power and authority to enter into and perform its obligations under this Agreement, (b) Client Content does not and shall not contain any content or materials prohibited by Section 3.2 above, and that Client owns the Client Content or otherwise has the right to place the Client Content on applicable portions of the Site, (c) Client has obtained any authorization(s) necessary for hypertext links from the Site to other third party websites, and (d) Client will not use any of VARStreet’s content or product data obtained from the Site on any other website or for any purpose other than those included in this Agreement. Should Client receive notice of a claim regarding the Site, Client shall promptly provide VARStreet with written notice of such claim.
8.1 Client. Client agrees to indemnify, defend, and hold harmless VARStreet, its directors, officers, stockholders, employees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on any portion of the Site under the control of Client infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, licenses, and/or other contractual or property interests.
8.2 VARStreet. VARStreet agrees to indemnify, defend, and hold harmless Client, its directors, officers, stockholders, employees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of VARStreet’s representations, warranties, or agreements hereunder; or (ii) arises out of the negligence or willful misconduct of VARStreet (iii) any of the web-based applications or related services to be provided by VARStreet hereunder or other material on any portion of the Site under the control of VARStreet infringes or violates any rights of third parties, including without limitation, rights of privacy, patents, copyright, trademarks, trade secrets, licenses, and/or other contractual or property interests.
8.3 Notice. In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent, which shall not be unreasonably withheld.
9.1 Disclaimer of Warranties. Client uses the Site at its risk. VARStreet endeavors to provide a convenient and functional Site, but VARStreet does not guarantee that the Site will be error free or that the Site or the servers it operates on are free of viruses or other harmful components. VARStreet urges Client to keep backup copies of material Client maintains on, uses with, or posts on the Site. If Client’s use of the Site results in the need for servicing or replacing property, material, equipment, or data, VARStreet is not responsible for those costs.
Without limiting the foregoing, EVERYTHING ON THE SITE IS PROVIDED TO CLIENT “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TIMELINESS, AND COMPLETENESS.
VARSTREET MAKES NO WARRANTY THAT THE SITE WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES VARSTREET MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE SITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE. VARSTREET MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE.
CLIENT UNDERSTANDS THAT QUOTATIONS PROVIDED ON THE SITE MAY NOT BE ACCURATE. CONSEQUENTLY, CLIENT SHOULD NOT RELY ON SUCH QUOTATIONS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM VARSTREET OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 Limitation of Liability. VARSTREET’S AGGREGATE LIABILITY TO CLIENT FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SITE CONTENT, OR THIS AGREEMENT IS LIMITED TO THE AMOUNT OF SERVICE FEES PAID BY CLIENT TO VARSTREET DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. NEITHER VARSTREET NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES RESULTING FROM CLIENT’S ACCESS TO, USE OF, OR INABILITY TO USE THE SITE AND THE SITE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VARSTREET KNOWS OF THE POSSIBILITY OF SUCH DAMAGE.
10.1 Term. This is a one-year subscription (“Subscription Term”) that shall begin when Client registers for VARStreet and upon receipt of complete payment of the first Subscription Fee. The subscription may be cancelled by either party at any time as provided in Sections 10.2 and 10.3 below.
10.2 Termination by VARStreet. This Agreement may be immediately terminated by VARStreet (a) if Client does not access the Web Application for an extended period of time, (b) for any reason or no reason upon 90 days notice, (c) if Client does not pay the Monthly Subscription Fee within 10 days after each due date, as set forth in the Subscription Services Order, or (d) if VARStreet reasonably believes, within its sole discretion, that Client has violated or acted inconsistently with this Agreement, or violated VARStreet’s rights or those of another party. VARStreet will notify Client if it terminates the Agreement, unless giving notice would cause a risk of further violation or damages. Notwithstanding the foregoing, VARStreet will notify Client that Client’s account will be canceled if such notification is required by law. Upon termination of Client’s account, Client may no longer have access to restricted portions of the Site (including the Web Application) and Client Content may be deleted. Notwithstanding any termination of this Agreement, any and all fees paid to VARStreet are non-refundable.
10.3 Termination by Client. Client may terminate its subscription at any time upon 30 days notice by notifying VARStreet via e-mail at [email protected] Upon Client’s early termination, any and all outstanding fees and other amounts to be paid by Client to VARStreet under this Agreement for the remainder of the Subscription Term shall become immediately due and payable and must be received by VARStreet no later than 10 days after the effective date of Client’s notice of termination. Additionally, any and all fees already paid to VARStreet by or on behalf of Client are non-refundable.
Client may terminate this Agreement for material breach of this Agreement by VARStreet which remains uncured for thirty (30) days after written notice of such breach is provided to VARStreet by Client. However such termination by Client cannot be for application enhancements or catalog content. In case of such termination for cause – Client’s payment obligation to VARStreet is till the date of last login to the Site.
10.4 Renewal. This Agreement shall automatically renew for a new one-year Subscription Term on each annual anniversary of the effective date of this Agreement, and Client shall be billed for the new Subscription Term unless Client notifies VARStreet no later than 30 days prior to the expiration of the existing Subscription Term of its intent to terminate this Agreement.
11.1 Third Party Content and Monitoring. VARStreet is a distributor (and not a publisher) of content supplied by third parties and users of the Site. VARStreet has no editorial control over such content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of VARStreet. VARStreet neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than authorized VARStreet employees acting in their official capacities. Client understands and acknowledges that VARStreet does not monitor content for accuracy or reliability.
11.2 Protection of Content Provided by VARStreet and Its Licensors. The Site contains trademarks and other material furnished by VARStreet and its licensors, such as value added resellers (“VARs”), information technology manufacturers (“IT Manufacturers”), and business partners. Client should assume that everything Client sees or reads on the Site that was not furnished by or received for Client (such as images, photographs, illustrations, text and other materials) (“Site Content”) is copyrighted unless otherwise noted. Client may not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any of the Site Content in any way for any public or commercial purpose unless Client has the necessary rights to do so as specified in Section 7.2 above and Client has obtained the prior written consent of VARStreet. Client may not use the Site Content on any other website or in a networked computer environment for any purpose except as permitted in writing by VARStreet. In order to protect VARStreet’s and its licensors’ trade secrets, Client agrees that it will not “reverse engineer” any Site Content consisting of downloadable software, unless specifically authorized in writing by the trade secret owner or otherwise permitted by law. Client also agrees not to copy any proprietary databases provided by VARStreet on the Site unless permitted by law. If Client violates any of these terms, Client’s permission to use the Site Content will automatically and immediately terminate, Client must immediately destroy any copies it has made of the Site Content, and VARStreet may end Client’s authorization to use the Site.
11.3 Intellectual Property Policy. VARStreet respects the intellectual property of others and expects its account holders to do the same. At its discretion and in appropriate circumstances, VARStreet may terminate the accounts of users who infringe upon the intellectual property rights of others. Pursuant to 17 United States Code 512(c)(2) (Digital Millennium Copyright Act of 1998), VARStreet’s designated agent for notice of alleged copyright infringement appearing on the Site is:
101 Middlesex Tpk,
Suite 6, Burlington, MA 01803
To file a notice of infringement with VARStreet, one needs to fulfill the requirements specified in Title II of the Digital Millennium Copyright Act of 1998. The text of this statute can be found at the U.S. Copyright Office website.
11.4 Links. The Site may contain links to other websites or resources. Client acknowledges and agrees that VARStreet is not responsible or liable for (a) the availability or accuracy of such sites or resources; or (b) the content, advertising, or products on or available from such sites or resources. The inclusion of any link on the Site does not imply that VARStreet endorses the linked site. Client uses the links at its own risk.
11.5 VARStreet XC is Only a Venue. VARStreet XC is an “ebusiness service” that provides quoting, online store construction and marketing services. The Site acts as a venue for and facilitates communication between users and/or other parties. VARStreet does not sell any goods. It acts on behalf of and manages sales transactions for VARs and IT Manufacturers. Client’s correspondence with IT Manufacturers or advertisers found on the Site, including payment and delivery of related goods or service, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such IT Manufacturer or advertiser. Client agrees not to hold VARStreet liable for any loss or damage of any sort incurred or breach of any product warranties as the result of any such dealings or as the result of the presence of such IT Manufacturers or advertisers on the Site.
11.6 Advertising and Merchandising. VARStreet reserves the right to advertise (through banner advertisements, merchandizing, search listings, executable programs, and the like) VARStreet and third party products and services within the Site (including the Web Application and Storefronts) – which shall not interfere with the use of the Site and its features. Any and all advertising revenue generated by VARStreet through the Site will be retained by VARStreet. Any advertising and merchandizing that appears on Client’s Storefronts will be based on Client preferences.
12.1 Entire Agreement. This Agreement and the Subscription Services Order set forth the entire agreement and understanding of the parties with respect to the subject matter herein and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the Subscription Services Order. In the event of any conflict between the terms of the Agreement and the Subscription Services Order, the terms of the Subscription Services Order will prevail.
12.2 Survival. Sections 2, 7, 8, 9, 11.5, and 12 shall survive any expiration or termination of this Agreement.
12.3 Assignment. Client may not assign, delegate, pledge or otherwise transfer (including by way of a Change of Control of Client) any right, title or interest of any type in or to this Agreement to any other party without the prior consent of VARStreet, which will not be unreasonably withheld.
12.4 Force Majeure. Neither Party to this Agreement shall be liable to the other party for any delay or failure by that Party to perform its obligations under this Agreement or otherwise, if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including but not limited to labor disputes, strikes or other labor or industrial disturbances, acts of God, floods, earthquakes, lightning, material shortages, utility or communications failures, war or acts of the public enemy, riots insurrections, embargoes, blockages, restrictions, regulations or orders of any governmental agency.
12.5 Governing Law. This agreement shall be governed by the laws of the State of California excluding the application of its conflicts of laws provisions.
12.6 Waiver. The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
12.7 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
12.8 Modifications. VARStreet may modify the information and functionality of the Site at any time. Client may be required to confirm its agreement to such changes in order to access the Site.
THIS SCHEDULE DETAILS THE INFRASTRUCTURE AND OPERATIONS CARRIED OUT BY VARSTREET INC. THIS NOTE IS INDICATIVE OF WHAT WE DO – AND IS NOT INTENDED TO GUARANTEE ANY SERVICE LEVEL OF THE SITE OR APPLICATION.
VARStreet platform is hosted in well known Data Center service provider, Expedient Inc. located at Boston, Massachusetts. Expedient provides complete Virtual Private dedicated environment with multi-tiered security. VARStreet environment has been built with redundancy at multiple levels. It makes the complete environment secured and reliable. The virtual environment setup using VM Ware helps spinoff the virtual machines in a very short time. It helps us to minimize the downtime for such business critical application. VARStreet uses advanced security methods based on dynamic data and encoded session identifications, and host the site in a secure environment that uses a firewall and other advanced technology to prevent interference or access from unauthorized users.
Our SITE and SERVICE will be shut down for scheduled maintenance as indicated on the Log in page. In addition to scheduled maintenance – additional shut downs would be carried out with prior intimation.
We download data from major distributors and vendors daily and perform complex aggregation processes. These processes are subject to breakdown – due to reliance on other distributor and vendor systems.
We provide real time connections to third parties such as – distributors, shippers, credit card companies and other parties. However these services are subject to breakdown – due to changes in sites and systems of these third parties.
TO PROVIDE THE SITE AND SERVICE VARSTREET RELIES ON INFRASTRUCTURE, HARDWARE AND SOFTWARE, NETWORKING EQUIPMENT ETC. FROM A NUMBER OF EXTERNAL VENDORS. SERVICE INTERRUPTIONS, FAILURES OF EXTERNAL VENDORS – COULD RESULT IN SITE / SERVICE BEING UNAVAILABLE.
Microsoft Windows XP with suitable hardware
Microsoft Internet Explorer 10.0 or greater
1024 x 768 monitor or higher
56K or greater Internet connectivity per seat
Microsoft Windows 8.0 with suitable hardware
Microsoft Internet Explorer 10.0 or greater
1024 x 768 monitor or higher
56K or greater Internet connectivity per seat