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By using the Domain Name Registration and related services you signify your agreement to the terms and conditions contained in this Reseller Agreement . This agreement is between you, your organization, #1 Internet Services International, Inc. (dba 1ISI), it's subsidiaries and all employees, directors, officers, representatives, agents and affiliates thereof. As part of this agreement you warrant that the contact information you provide in your Account is accurate and that you will keep it up to date. You agree that this agreement is an application to become an independent reseller of 1ISI products and services and that this agreement shall not become effective until i) 1ISI's acceptance of this agreement (which acceptance may be evidenced by 1ISI's course of conduct in activating your Account). The terms and conditions of this agreement may be modified from time to time. Modifications made to this agreement 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 agreement, you may stop using the Services and terminate the Services as described below. The Services include the following: a) Domain Name registration in the TLDs offered by 1ISI, including whois service; b) name server services (DNS); c) URL forwarding; d) DNS monitoring services; e) pre-fabricated and hosted websites for the purpose of registering domain names and offering these Services; f) phone and email support; g) merchant services for processing credit card and PayPal funded orders; and h) such other services as 1ISI may make available through your Account and the API. You have the ability, through your Account to set pricing of products you choose to resell. You agree to be responsible for and guarantee all payments and other performance obligations due to 1ISI for all Services provided to you or to your customers. 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 1ISI and a customer you agree that 1ISI may charge you reasonable administrative fees for dealing with complaints, subpoena requests, and related issues caused by you or your customers. If you die or otherwise become unavailable (1ISI is unsuccessful in making reasonable attempts to contact you), and if you have customers, 1ISI may assume direct control over such customers. You will be required to fund your account prior to provisioning andy of the Products or Services. When you fund your account, your price will also include certain costs, such as online access fees, taxes, etc., which will not be reflected in your account total. For example, in order to fund your account with $100 via a credit card, you will be charged $103.00, which includes 3% convenience fee for online access. Account funding is non-refundable and funds are not transferable without the consent of 1ISI, which may be denied for any reason. Account funding may be accomplished using a credit card. You authorize 1ISI to debit the credit card you present in relation to a particular transaction or the credit card you otherwise provide through your Account. You agree that you will present only approved transactions to 1ISI. You agree that any chargeback by a credit card company or similar action by or through another payment provider relating to payment to 1ISI, for whatever reason, i) is a material breach of this agreement, ii) is an act for which you agree to be jointly and severally liable to make 1ISI whole, iii) is an act with respect to which 1ISI will charge $35.00 per incident, in addition to Merchant Services fees and other payment provider service charges which may be charged to 1ISI, and iv) that the same shall be grounds for suspension and/or termination of this agreement and the Services. Under such circumstances, you agree and acknowledge that 1ISI may suspend your access to any and all of your Accounts which you may have with 1ISI and that all right, title, interest in, and use of any domain name registration(s) and/or websites, email, or other data hosted on systems controlled by 1ISI (the "Collateral") shall be assumed by 1ISI. 1ISI will reinstate rights in the Collateral solely in the discretion of 1ISI, subject to receipt of the fee(s) owed and the then-current reinstatement fee, currently set at US$200. You agree that 1ISI may sell, dispose of, or retain the Collateral if 1ISI determines the same to be a means of obtaining some monetary or other satisfaction or security. Account funding may also be accomplished through check or wire transfer, in which case please contact 1ISI to arrange such a payment. 1ISI may require that you fund your account using a particular payment means, such as by wire transfer. 1ISI may also demand reasonable assurance of payment if you give 1ISI grounds for insecurity. Account funds shall not be refunded to you for cash, regardless of termination of this agreement. You authorize 1ISI to deduct from your account funds any amounts owed by you to 1ISI, including, without limitation, amounts owed as a result of your indemnification of 1ISI for third party claims, administrative costs mentioned above, and reasonable administrative costs which may be charged for inactive accounts. Support. You shall be responsible for providing customer service, billing, and technical support to your customers. 1ISI shall provide telephone and email support to you during business hours, which are customarily from 8 AM to 6 PM, Pacific Standard Time, with some exceptions for major holidays. 1ISI may, but is not obligated to, provide support directly to your customers. If 1ISI receives communications from registrants or from third-parties regarding a Services provided in your Account, 1ISI will, were appropriate, forward such communications to you for further action; however, 1ISI reserves the right to respond to such communications directly. If 1ISI determines that you are providing inadequate support to your customers (resulting in, for example, an excessive number of support calls directly from your customers), then 1ISI may consider this to be a breach of this agreement by you and may terminate this agreement. Licensed Use of The Technology. You agree that the Services may only be accessed through the application programming interface (this and the documentation specifying the application programming interface are referred to herein as the "API"), your Account, websites created by 1ISI which use the API, updates and upgrades thereto, and through such other means and technologies which 1ISI makes available through its websites. 1ISI hereby grants to you a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this agreement, to use the Technology solely for the purpose of accessing and using the Services. Except for the rights expressly granted above, this agreement does not transfer from 1ISI to you or your customers any 1ISI technology, and all rights, titles and interests in and to the Technology shall remain solely with 1ISI. You shall not intentionally or negligently abuse the Service infrastructure. "Abuse" in the foregoing sentence shall mean, by way of example and without limitation, any action or conduct which degrades service to other users of the shared Services and Technology. Suspension or Termination of the Services. 1ISI reserves the right to suspend performance of the Services or to preclude use of or access to the Technology if any of the following occur: If you fail to pay any amounts owed to 1ISI; If you or your customers' excessive use or abuse of the Services or Technology disrupts service to other users of 1ISI's shared Services and Technology; If you or your customers' use of the Services and Technology results in 1ISI's IP addresses being reported to spam blocking organizations or other organizations which attempt to police or monitor abuse of the Internet; If you or your customers fail to abide by customary industry acceptable use policies and all governing and applicable laws. Term of this agreement and Termination. This agreement is effective for a period of one year from the date of creation of your Account by 1ISI. This agreement will then renewed for an indefinite number of one-year terms. Either party upon at least thirty (30) days' written notice (including notice via email) may terminate this agreement. 1ISI also retains the right to terminate this agreement immediately if you or your customers fail to comply with any term or condition of this agreement, or if 1ISI, in its sole discretion, deems such termination necessary to investigate or resolve any complications arising from your use of the Services. Confidentiality. 1ISI agrees to keep confidential your confidential business and technology information other than your Account contact information and other information which 1ISI, in its sole discretion, deems necessary to disclose in order to effectuate transfers, to investigate or implement any policing activity, to respond to lawful discovery requests, or to otherwise achieve the legitimate business purposes of this agreement. The obligations of this section shall not restrict any disclosure by either party pursuant to any applicable law, or by order of any court, government agency, or ICANN and shall not apply to information that is independently developed by the disclosing party or is publicly known. Warranties and Excluded Warranties. WHAT IS NOT WARRANTIED: 1ISI DOES NOT WARRANTY THAT PERFORMANCE OF THE SERVICES OR USE OF THE TECHNOLOGY WILL BE UNINTERRUPTED, ERROR FREE, OR THAT IT WILL NOT BE NECESSARY FOR YOU TO PROVIDE NOTICE OF ERRORS THROUGH 1ISI'S SUPPORT PROCEDURES. WARRANTIES: 1ISI WARRANTIES THAT THE SERVICES AND TECHNOLOGY WILL BE PROVIDED AND MAINTAINED WITH AT LEAST THE SAME DEGREE OF CARE 1ISI EXERCISES IN PROVIDING SIMILAR SERVICES AND TECHNOLOGY TO 1ISI'S OTHER SIMILARLY SITUATED CUSTOMERS. YOU AGREE THAT YOUR EXCLUSIVE REMEDIES FOR BREACH OF THIS WARRANTY ARE THE REMEDIES PROVIDED IN THIS agreement OR, IF NO REMEDIES ARE PROVIDED, THAT YOUR EXCLUSIVE REMEDY IS THE RE-PERFORMANCE OF THE SERVICES OR IF 1ISI IS UNABLE TO PERFORM THE SERVICES AS WARRANTED WITHIN A REASONABLE PERIOD AND IF YOU CAN DEMONSTRATE THROUGH CLEAR AND CONVINCING EVIDENCE A LOSS WHICH IS SOLELY AND DIRECTLY ATTRIBUTABLE TO 1ISI'S BREACH OF THIS WARRANTY, THEN YOUR EXCLUSIVE REMEDY SHALL BE THE TERMINATION OF THIS agreement AND THE CASH REFUND OF ANY FUNDS USED BY YOU IN RELATION TO THE SPECIFIC TRANSACTIONS WHICH GAVE RISE TO THE BREACH OF THIS WARRANTY, SUBJECT TO THE OVERALL LIMITATION OF 1ISI'S LIABILITY FOUND IN THIS agreement. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Indemnification. You, at your own expense, will indemnify, defend and hold harmless 1ISI (which refers to, as indicated at the beginning of this agreement, its subsidiaries, and all employees, directors, officers, representatives, agents and affiliates thereof), against any claim, suit, action, or other proceeding based on or arising from any claim or alleged claim (i) relating to any product or service of yours; (ii) relating to your use of the Services; or (iii) relating to your domain name registration and related service business, including, but not limited to, your advertising, domain name application process, systems and other processes, fees charged, billing practices and customer service; provided, however, that in any such case: (a) 1ISI provides you with prompt notice of any such claim, and (b) upon your written request, 1ISI provides you with all available information and assistance reasonably necessary for you to defend such claim, provided that you reimburse 1ISI for actual and reasonable costs. You shall not enter into any settlement or compromise of any such indemnifiable claim without 1ISI's prior written consent, which consent shall not be unreasonably withheld. You shall pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by 1ISI in connection with or arising from any such indemnifiable claim, suit, action or proceeding. Limitation of Liability. A material provision of entering into this agreement is that 1ISI's liability shall be limited as follows: In relation to each component of the Services for which a separate fee is charged, 1ISI shall be liable in an amount no greater than the fees received by 1ISI for performing the specific transaction(s) that gave rise to the liability. 1ISI's aggregate liability for all claims of any sort shall not exceed the aggregate amount received by 1ISI from you over the term of this agreement. 1ISI shall not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration, or inadvertent disclosure of data, information, or content transmitted, received, or stored on its or any 3rd party systems. With respect to passwords, account identifiers, and other systems used to control access to your account, you acknowledge and agree that it is your responsibility to safeguard such passwords, account identifiers, and other systems used to control access to your ETP account. You agree that as a service to you, 1ISI may, but is not required to, take reasonable measures to verify the identity of parties who claim to have lost or forgotten passwords and/or account information and to then provide the information to such parties and that 1ISI shall not be responsible to you for losses or claims for any inadvertent disclosure of such passwords which may result thereby. You expressly agree that it is reasonable for 1ISI to email passwords to designated email account(s), to phone designated phone numbers, or to employ security questions as a means to verify the identity of the party entitled to control your account. EXCEPT AS EXPRESSLY PROVIDED IN THIS agreement, 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 agreement, OR, EXCEPT AS PROVIDED FOR IN THE SECTION RELATING TO YOUR INDEMNIFICATION OF 1ISI, 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. Independent Contractors. The parties to this agreement 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 agreement shall be deemed or construed to create for any purpose an employer/employee, joint venture, partnership, or agency relationship between the parties. Taxes. Unless specified otherwise, the fees listed in this agreement do not include taxes. If 1ISI 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 agreement 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 1ISI's income. 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 agreement (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.
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