WHOGOHOST'S TERMS OF SERVICE

This Reseller Hosting Agreement (the "Agreement") is made between WhoGoHost Limited ("WhoGoHost" or "Company"), a limited liability WhoGoHost and Reseller who orders WhoGoHost Services ("Reseller" or "You" or "Your") Each of WhoGoHost and Reseller referred to as a "Party" and collectively as "Parties" under this Agreement.

The Agreement applies to the Reseller's use of the Services and is governed by these Reseller Hosting Terms of Service which include general Terms of Service, Privacy Policy and the terms of your Order which may have additional Product Terms and Conditions that apply to the particular services in your Order set forth on WhoGoHost's website, as the same may be modified by WhoGoHost from time to time and all of WhoGoHost’s policies, all herein incorporated by reference and shall be deemed a single agreement (collectively the "Agreement"). WhoGoHost may modify the Agreement and any other applicable Product Terms from time to time in its sole discretion, which modifications will be effective upon posting to WhoGoHost's website. Your use of the Services includes the ability to enter into agreements and make purchases electronically.

You acknowledge that your electronic approval constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter. WhoGoHost may accept or reject any Order you submit in its sole discretion. WhoGoHost’s provisioning of the Services described in an Order shall be WhoGoHost’s acceptance of the Order. If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement. You acknowledge and agree you will use this Service to resell web hosting.

PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE COMPANY’S PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALONG WITH ANY NEW, DIFFERENT OR ADDITIONAL TERMS, CONDITIONS OR POLICIES WHICH COMPANY MAY ESTABLISH FROM TIME TO TIME. YOU MAY VIEW THE LATEST VERSION OF THIS AGREEMENT ONLINE.

In addition, when you use your account or permit someone else to use it to purchase or otherwise acquire access to additional Services or to cancel your Services (even if we were not notified of such authorization), You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with Company, whether or not the transactions were on Your behalf, You signify your agreement to the terms and conditions contained in this Agreement.

Definitions

Whenever used in this Agreement, the following capitalized terms shall have the respective meaning specified below:

"Reseller Data" means all data (including software, text, sound files and Personal Data) and other content that are stored by you or your end-user(s) on the Hosted System or otherwise processed by you or your end-user(s) through your use of the Services.

"Order" means (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by WhoGoHost for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the WhoGoHost cloud control panel or through an API.

"Personal Data" means any information that is referred to as personally identifiable information, personal data or personal information (or other like the term) under applicable data protection or privacy law. It includes information that by itself or combined with other information can be used to identify a person.

"Product Terms and Conditions" means the terms and conditions that are incorporated by reference in your Agreement and that state additional terms and conditions for the particular Services you are buying.

"Support" means (i) WhoGoHost employees with training and experience relative to the Services will be available ‘live’ by telephone, chat and ticket twenty-four (24) hours per day, seven (7) days per week, all year round, and (ii) any additional level of assistance offered by WhoGoHost for the specific Services you are purchasing, and described in the applicable Product Terms and Conditions or Order.

"Business Day" means Monday to Friday, excluding public holidays.

"Business Hour" means 9:00 a.m. – 5:00 p.m. on a Business Day.

"Claims" means any claim, demand, action, suit, cause of action, assessment or reassessment, charge, judgment, debt, liability, expense, cost, damage or loss, direct or indirect, contingent or otherwise, including loss of value, reasonable professional fees, including fees of legal counsel on a solicitor-and-End User basis, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.

"Confidential Information" means all non-public technical information and business information, programming, software code, trade secrets, marketing strategies, software, documentation, Reseller data, financial information and any other information which in the circumstances of its disclosure could reasonably be viewed as confidential. Confidential Information shall not include information that:

1. is or becomes a part of the public domain through no act or omission of the Receiving Party;
2. was in the Receiving Party’s lawful possession before the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party;
3. is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or
4. is independently developed by the Receiving Party, provided that the foregoing shall not be deemed to permit use or disclosure of information in breach of applicable law. Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by it or its employees, mandataries or agents in violation of the terms of this Agreement or applicable law.

"End User" means an individual or legal entity that obtains the Services from the Reseller.

"End User Licence Agreements" or "EULAs" means the applicable terms of service agreements with WhoGoHost and Third Party Suppliers governing the use of the Services, which are provided by WhoGoHost, appear upon first use of each Product, or are otherwise made accessible by weblink or otherwise to the End User.

"Intellectual Property Rights" means all rights protectable by copyright, trademark, patent, industrial design or trade secret and other intellectual property rights under any law including common law.

"Products" means any service of WhoGoHost or third party providers made available through the Hosting Reseller Program.

"Third Party Suppliers" means third party suppliers of Products included in the Hosting Services.

Additional Policies and Agreements

1. Use of the Services is also governed by the following policies, which are incorporated by reference. By using the Services, you also agree to the terms of the following policies.
   • Privacy Policy
   • Terms of Service
   • Refund Policy
2. Additional terms may also apply to certain Services, and are incorporated by reference herein as applicable. For example, if you register a domain name with us, then the Domain Registration Agreement will also apply to you and would be incorporated herein.

WhoGoHost Responsibilities

WhoGoHost shall provide to you the Services and Support subject to the terms and conditions of Agreement but this is dependent on your complete payment for the order before it is provisioned and then WhoGoHost will comply with all laws applicable to its provision of the Services.

Reseller Responsibilities

1. Reseller shall comply with applicable law and the terms and conditions of the Agreement
2. Reseller shall ensure that the Services shall be made available only to End Users or sub-resellers who in turn make Services available to End Users;
3. Reseller shall ensure that each End User enters into the applicable End User Licence Agreements with Reseller, Reseller’s sub-resellers, WhoGoHost and Third Party Suppliers before the Reseller providing any access to the Services and before any use of the Services by the End User; and
4. Reseller shall pay WhoGoHost the amounts set out for each order for Services attributed to Reseller. Reseller shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however, designated or imposed on it as a result of the existence or operation of the Agreement, including any income, sales, or use tax on profits which may be levied against it.
5. Reseller will professionally conduct itself and will keep up a reputation to deal fairly with its Resellers or End Users. The reseller will not make any statement or take any action, that could reasonably be expected to reflect poorly on Company or the reputation of Company or its products and services.
6. Reseller will cause its personnel who are responsible for Reseller's activities under the Agreement to remain well-informed concerning the Company's products and services. Among other things, Reseller will cause such personnel to review Company's web site occasionally to ensure that such personnel are reasonably familiar with Company's product offerings, pricing, promotions and service terms and conditions.
7. The Reseller will determine its resale prices to Reseller resellers.
8. Reseller shall ensure that your Reseller account information as it appears in the online client account is true, accurate, current and complete
9. Reseller assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Reseller Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
10. Unless provided otherwise, Reseller is solely responsible for making back-up copies of the Reseller Website and Reseller Content. You agree that you will maintain at least one (1) additional current copy of your Reseller Data and programs stored on the WhoGoHost’s servers somewhere other than WhoGoHost Server and You are not allowed keep backups on individual accounts created in your Reseller accounts. This also includes Softaculous backups etc and if found, Reseller agrees that the Company reserves the right to delete such backup without prior notice.
11. Reseller is responsible for ensuring that there is no excessive overloading, phishing, spamming or sending bulk emails, fraudulent activities on WhoGoHost servers while the Reseller agrees that the Company reserves the right to suspend the recipient of activities that threaten the stability of its network temporarily or permanently from its hosting servers.
12. Reseller may set the prices to End Users for the Products/ Services offered by Reseller (“Retail Prices”).

End User Data

Reseller and WhoGoHost shall be responsible for and shall follow good industry practices for safeguarding, maintaining the confidentiality of data of End Users and shall comply with all applicable data protection and privacy laws concerning any data of End Users. Although Reseller and WhoGoHost may have access to data of End Users using the Products/ Services, the parties shall do so only to the extent necessary to carry out their respective responsibilities under this Agreement for no other purpose. Nothing in this Agreement permits either parties or both Parties to disclose or distribute any data of End Users obtained through activities under this Agreement. For greater clarity, WhoGoHost shall not use any data provided by End Users or Reseller about End Users for direct or indirect solicitation, marketing, sales or other promotions for itself, any affiliates or any third parties. Data provided by Reseller to WhoGoHost or entered into WhoGoHost systems shall be Confidential Information of Reseller. This does not prevent in any way WhoGoHost to solicit through its normal practices End Users.

Reseller Account Usage

Furthermore, reseller agrees to the following below:

1. System Resource Usage (CPU/Memory/etc.): Per our terms of service, abuse of system resources is prohibited. First violations may or may not cause an account suspension depending on the severity of the issue. The Reseller will receive a clear warning. Second or third violations may result in an immediate termination of your account. WhoGoHost staff members will judge based on server performance on what type of activity is considered as abusive. Reseller agrees that Reseller shall not use excessive amounts of CPU processing on any of Company's servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any or all Program, or termination of the Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Reseller shall not be entitled to a refund of any fees paid in advance before such action.
2. Cron Jobs: While Resellers can set up cron jobs through their control panel, cron job timing can not be quicker than every 5 minutes. Each server will revert 'every minute' cron jobs to every 5 minutes on a nightly basis.
3. Bandwidth and Disk Usage: Reseller agrees that bandwidth and disk usage for each account created under its Reseller account shall not exceed one-third of the total number of megabytes assigned to the entire Reseller account for the Services ordered by Reseller on the Order Form. WhoGoHost will monitor Reseller's bandwidth and disk usage. WhoGoHost shall have the right to take corrective action if Reseller's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any or all Services, or termination of this Agreement. Which actions may be taken is in WhoGoHost sole and absolute discretion. If WhoGoHost takes any corrective action under this section, Reseller shall not be entitled to a refund of any fees paid in advance before such action.
4. Backups and Backup Access: Reseller acknowledges that individual site backups are the responsibility of the Reseller. WhoGoHost keeps overall system snapshots in case of full system recovery and may not be able to provide you with on-demand recovery in case of individual file corruption or accidental deletion. Reseller agrees that you will maintain at least one (1) additional current copy of your Reseller Data and programs stored on the WhoGoHost’s servers somewhere other than WhoGoHost Servers and You are not allowed keep backups on individual accounts created in your Reseller accounts. For Softaculous backups on individual accounts created in Reseller account. Reseller agrees not to keep more than three (3) latest versions of backups as older backup may be deleted with or without prior notice. If you utilize WhoGoHost’s CodeGuard backup services, you are responsible for initiating, performing and testing restores of backup as well as testing your systems and monitoring the integrity of your Reseller Data to determine the quality and success of your backups.
5. Upgrade/Downgrade: Reseller agrees that downgrading a reseller account to a shared hosting account is not allowed but you can upgrade at any time to a higher package.

Confidentiality

1. A Party receiving Confidential Information (the “Receiving Party”) shall maintain the confidentiality of all Confidential Information of the Party disclosing the Confidential Information (the “Disclosing Party”) and shall not release, disclose, divulge, sell or distribute any Confidential Information, without the prior written consent of the Disclosing Party. The Receiving Party may only use and copy the Disclosing Party’s Confidential Information as is necessary to carry out its activities contemplated by this Agreement and for no other purpose. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees on a “need to know basis”, provided that it shall first instruct such employees to maintain the confidentiality thereof. The reseller may disclose Confidential Information to End Users to the extent necessary to carry out the intent of this Agreement, but such End-Users shall have entered into an End User Licence Agreement. WhoGoHost may disclose Confidential Information to Third Party Suppliers to the extent necessary for the provision of the Products provided by such Third Party Supplier and compliance with its agreements with such Third Party Suppliers.
2. Disclosure of Confidential Information shall be permitted if such Confidential Information is required to be disclosed by law or by any rule, regulation or order of a person having jurisdiction or pursuant to a final order or judgment of a court of competent jurisdiction, and in such case the Parties will cooperate with one another to attempt, if possible, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded to such Confidential Information prior to disclosing such Confidential Information.
3. The Parties acknowledge and agree that any breach of the terms of this Section 9 will cause irreparable harm and damage to the aggrieved party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section 9, and to specifically enforce the terms and provisions of this Section 9, in addition to any other remedy to which such Party may be entitled, at law or in equity.
4. During the term of the Agreement and for two years following expiration or termination of the Agreement, Reseller will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under the Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company.

Property Rights

1. Company hereby grants to Reseller a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of the Agreement, to use Company technology, products and services solely to access and use the Program. The reseller may not use the Company’s technology for any purpose other than accessing and using the Program. Except for the rights expressly granted above, the Agreement does not transfer from Company to Reseller any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Reseller shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
2. Company owns all right, title and interest in and to the Program and Company's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Program and the related hardware, software and systems ("Marks"). Noting in the Agreement constitutes a license to Reseller to use or resell the Marks.

White Labelling

Reseller (and its sub-resellers) may provide the Products/ Services to End Users through a web portal or online marketplace with Reseller’s branding (or sub-reseller's branding), provided that Reseller shall be wholly responsible for any trade-marks used for such branding including any claims of infringement of any third party’s trade-marks. Reseller shall not alter, obscure or remove any branding or trade-marks of Third Party Suppliers of the Products, including standard branding and trade-marks, which display during access or use of the Products through the Products/ Services.

Trade-mark Use

Each Party recognizes WhoGoHost’s, Third Party Suppliers’ and Reseller’s ownership and title to their respective trademarks, service marks and trade names whether or not registered (collectively, “Marks”). The reseller may be provided with a limited right to use Marks of Third Party Suppliers (“Supplier Marks”) in connection with promotion and distribution of the Products/ Services and Products. Except for these limited rights, Reseller may not use Supplier Marks in advertising, promotion, and publicity without the express written consent of WhoGoHost or the Third Party Suppliers, respectively.

Termination

1. WhoGoHost may terminate your access to the Services, in whole or in part, without notice in the event that:
   • You fail to pay any fees due;
   • You violate this Agreement;
   • Your conduct may harm WhoGoHost or others or cause WhoGoHost or others to incur liability, as determined by WhoGoHost in our sole discretion; or
   • As otherwise specified in this Agreement. In such event, WhoGoHost shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, WhoGoHost may charge you for all fees due for the Services for the remaining portion of the then current term.
2. UPON TERMINATION OF THE SERVICES FOR ANY REASON, USER CONTENT, USER WEBSITES, AND OTHER DATA WILL BE DELETED.

Disclaimer of Warranties

WHOGOHOST MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE PRODUCTS/ SERVICES, THE PRODUCTS OR THEIR USE, ACCURACY, FUNCTION OR OWNERSHIP AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY MANNER FOR ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCT WILL BE ERROR-FREE. RESELLER ACKNOWLEDGES THAT PORTIONS OF THE PRODUCTS/ SERVICES ARE PROVIDED BY THIRD-PARTY SUPPLIERS WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY WHOGOHOST. RESELLER SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, REPRESENTATIONS OR WARRANTIES OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF WHOGOHOST. RESELLER SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SERVICES GIVEN BY RESELLER

Indemnities

1. WhoGoHost shall indemnify and hold harmless the Reseller, its employees, officers, directors, mandataries and agents from and against any and all claims brought by a third party arising out of or in connection with infringement or alleged infringement of the Intellectual Property Rights of such third party due to the distribution of the Products/ Services under this Agreement. If the Products/ Services become or are likely to become the subject of an infringement claim or action, WhoGoHost may at its sole discretion:
   • procure, at no cost to the Reseller, the right to continue distributing and using Products/ Services;
   • replace or modify the Products/ Services so that they become non infringing; or
   • withdraw the Products/ Services and terminate any End User Licence Agreement without further obligation.
2. Except for matters subject to the indemnity referred to in Section 13(a), Reseller shall indemnify and hold harmless WhoGoHost and the Third Party Suppliers from any Claims arising from its distribution of the Products/ Services hereunder.

No Consequential Damages; Limitation of Liability

IN NO EVENT SHALL WHOGOHOST BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR OTHERWISE. IN NO EVENT SHALL WHOGOHOST’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID, UNDER THIS AGREEMENT BY RESELLER IN THE 12 MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE FOREGOING DISCLAIMER AND LIMITATION OF LIABILITY SHALL NOT APPLY TO THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT SECTION 7 OR WHOGOHOST’S OBLIGATIONS TO INDEMNIFY PURSUANT TO SECTION 13(A).

Reservation of Rights.

Company explicitly reserves the right and sole discretion to:

1. Censor any web site hosted on its Web Hosting servers that, in Company's sole discretion, is deemed inappropriate;
2. Review every Reseller Hosting account for excessive space and bandwidth utilization and to terminate or apply additional fees to those Accounts that exceed allowed levels;
3. Modify its pricing through email notification;
4. Terminate your Web Hosting service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Web Hosting fees; and other activities whether lawful or unlawful that Company determines to be harmful to its other Resellers, operations, or reputation;
5. Terminate your Web Hosting service if the contents of your web site result in, or are the subject of, legal action or threatened legal action, against Company or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Company has no obligation to monitor your site or any of your content, but reserves the right in its sole discretion to do so.

Dispute Resolution Policy

Reseller agrees that if a dispute arises as a result of one or more web sites Company is hosting for you, you will indemnify, defend and hold Company harmless for damages arising out of such dispute. Reseller also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.

Miscellaneous

1. Media Releases: Except for any announcement intended solely for internal distribution by either Party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures, including but not limited to promotional or marketing material, by either Party or its employees, mandataries or agents which includes references to the other Party or the Marks of the other Party shall be coordinated with and approved in writing by such person prior to the release thereof.
2. Independent Contractors: The Parties are independent contractors under this Agreement and nothing in this Agreement shall be construed to create any partnership, joint venture, employment or agency relationship whatsoever as between WhoGoHost and Reseller. Either Party shall not, by reason of any provision herein contained, be deemed to be the partner, mandatory, agent or legal representative of the other Party nor to have the ability, right or authority to assume or create, in writing or otherwise, any obligation of any kind, express or implied, in the name of or on behalf of the other Party.
3. Entire Agreement: This Agreement and the additional policies and agreement stated hereto collectively constitute the entire agreement between the Parties about the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions concerning the subject matter hereof whether oral or written. In case of a conflict between the Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Reseller or Company, the terms and conditions of the Agreement shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by an authorized representative of Reseller and Company. This Agreement may only be amended, modified or supplemented by a written agreement signed by both of the Parties hereto; provided, however, that these Terms of Program may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
4. Governing Law & Jurisdiction: This Agreement and any dispute or claim whatsoever relating to it or its formation shall be governed by and construed following the laws of the Federal Republic of Nigeria. All disputes, controversies or claims arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act CAP. A18, Laws of the Federation of Nigeria 2004, which Rules are deemed to be incorporated by reference to this clause. The number of arbitrators shall be three, each Party shall appoint an arbitrator within 14 days of service of a notice to refer any such dispute, controversy or claim to arbitration; the seat of the arbitration shall be Lagos, Nigeria, and the language to be used in the arbitral proceedings shall be English.
5. Non-Waiver: No waiver of any of the provisions of this Agreement is binding unless it is in writing and signed by the Party entitled to grant the waiver. The failure of either Party to exercise any right, power or option given hereunder or to insist upon the strict compliance with the terms and conditions hereof by the other Party shall not constitute a waiver of the terms and conditions of this Agreement with respect to that or any other or subsequent breach thereof nor a waiver by either Party of its rights at any time thereafter to require strict compliance with all terms and conditions hereof including the terms or conditions with respect to which the other Party has failed to exercise such right, power or option.
6. Force Majeure: Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of nature, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party's employees, mandataries, agents or contractors; provided, however, that lack of funds and a lack of reasonable disaster recovery plans and safeguards shall not be deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes which in their judgement may or could be the cause of a delay in the performance of this Agreement.
7. Successors and Assigns: A Party may not assign this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. This Agreement shall enure to the benefit of and be binding upon WhoGoHost and Reseller and their respective legal successors and permitted assigns.
8. Survival: All obligations of WhoGoHost and Reseller which expressly or by their nature survive expiration or termination of this Agreement shall continue in full force and effect after and notwithstanding such expiration or termination and until they are satisfied or by their nature expire.
9. Notice: Any notice given under this Agreement shall be in writing and given by manually delivering it or sent by telecopy, fax or other similar means of communication. Any such notice shall be effective upon receipt unless received on a day which is not a Business Day in which event it shall be deemed to be received on the next Business Day. Either Party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the Party at its changed address. upon the expiration of five days after the date of posting, if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of the Agreement by notice in writing to the other party as provided herein. Company may give written notice to Reseller via e-mail to the Reseller’s e-mail address as maintained in the Company’s billing records.
10. Cumulative Rights: The rights of each Party hereunder are cumulative and no exercise or enforcement by a Party of any right or remedy hereunder shall preclude the exercise or enforcement by such Party of any other right or remedy or which such Party is otherwise entitled by law to enforce.
11. No Third-Party Beneficiaries: Except as otherwise expressly provided in the Agreement, nothing in the Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Reseller acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Program Description, is an intended third-party beneficiary of the provisions set forth in the Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of the Agreement with respect to its products or services against Reseller as if it were a party to the Agreement.
12. Additional Remedies: Reseller acknowledges that an act of Reseller in violation of WhoGoHost’s rights in the Products may cause irreparable damage to WhoGoHost, for which money damages may not be an adequate remedy. Accordingly, if Reseller acts, fails to act, or attempts to act in violation of WhoGoHost’s rights in the Software, then in addition to all WhoGoHost’s other rights and remedies under this Agreement, WhoGoHost shall have the right to apply for interlocutory and permanent injunctive relief seeking to enjoin such action or failure to act.
13. Further Assurances: The Parties agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
14. Severability: If in any jurisdiction, any provision of this Agreement or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provision hereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other Parties or circumstances. Counterparts. This Agreement may be executed by the Parties in separate counterparts of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.
15. Language: The Parties have requested that this Agreement, together with any schedule, notice or other related documents, be drawn up in the English language only.