WebAfrica Virtual Internet Service Provider Agreement

Web-Based Services Reseller Agreement

This RESELLER AGREEMENT ("Agreement") is made and entered into this day of (the "Effective Date") by and between Vendor, a company having a principal place of business at ("Vendor"), and Company, a company having a principal place of business at ("Company").

In consideration of the mutual promises and undertakings set forth herein, the parties hereby agree as follows:

1. Background.

Vendor is (the "Vendor Service"). Company is in the business located at URL www. .com. Vendor and Company desire to enter into a reseller arrangement whereby Company will offer to its customers ("Customers") the Vendor Service as a component of certain Company product offerings (the "Company Products"), all on the terms and conditions contained herein.

2. Authorization to Resell.

(a) Grant of Rights. Subject to the terms and conditions of this Agreement, Vendor hereby grants Company a world-wide, limited, revocable, non-exclusive, non-transferable, non-sublicensable right, during the Initial Term or any Renewal Term hereof, to market, promote and sell access to the Vendor Service to Customers as part of the Company Products, via the website located at the URL www. .com or such other website approved in writing by Vendor (the "Host Site"), all subject to the terms and limitations contained in this Agreement.

Before granting any Customer access to the Vendor Service, Company will require such Customer first to consent to the Vendor Terms and Conditions of Use, as amended from time to time by Vendor (the "Vendor Terms of Use"), a current copy of which is attached as Exhibit A hereto, and shall record such Customer consent in a reproducible and verifiable format, records of which shall be provided by Company to Vendor no less frequently than quarterly.

In no event shall a Company Customer be granted a right to sublicense or distribute the Vendor Service to other Company Customers, persons or entities.

(b) Subscriptions.

[Describe the logistics of subscribing (e.g., will Company be given passwords or will there simply be a link to the Vendor Subscription page?)]

(c) Trademark Use. To carry out the terms of this Agreement, Company may, for so long as Company is not in default under this Agreement or any other agreement with Vendor, use the Vendor trademarks and trade names set forth in Schedule A (the "Marks") in advertising and promoting the Vendor Service.

Company's use of the Marks is under the control and supervision of Vendor, and all such uses inure to the benefit of Vendor. Company shall acquire no legal rights in the Marks. Company shall obtain Vendor's prior approval of all uses of the Marks, which approval Vendor shall not unreasonably withhold. From time to time, upon Vendor's reasonable request, Company shall provide Vendor with samples of all such advertising and promotional materials bearing any of the Marks. During the term of this Agreement, Company shall conduct its business and operations with at least the same degree of care and quality that Company used immediately prior to the execution of this Agreement. Company hereby grants Vendor the non-exclusive, non-transferable, worldwide right, during the term hereof, to use Company's trademarks, tradenames and logos in all of Vendor's promotional materials, including such materials posted on the internet.

(d) Limited Rights. Company acknowledges that the grant of rights herein shall not impair or restrict any rights previously granted by Vendor to any third party, or affect Vendor's right to grant any such rights in the future. All rights not expressly granted to Company herein are reserved to Vendor.

3. Limitations and Restrictions.

(a) Restrictions on Use. Company acknowledges that it may only sell access to the Vendor Service as expressly outlined above and may not otherwise use, sell, rent, lease, transfer, distribute, publish, reproduce, copy, display, or prepare derivative works from the Vendor Service or any part thereof. Company further agrees that it shall not make, publish or distribute, or cooperate with any third party in making, publishing or distributing, any public announcements, press releases, advertising, marketing, promotional or other materials (whether in print, electronically or otherwise) that relate to the Vendor Service or this Agreement or that use Vendor's name, trademarks, logos or other branding, without Vendor's prior written approval.

(b) Suspension of Access. Vendor reserves the right to deactivate or suspend Company's access to or any Customer's use of the Vendor Service, if the same is found or reasonably suspected to involve or facilitate illegal, abusive or unethical activities as determined in accordance with the Vendor Terms of Use or other policies. Such activities include (without limitation) pornography, obscenity, nudity, violations of law or privacy, hacking, computer viruses, gambling or other business activities requiring licensure not properly obtained, unsolicited bulk mail messages ("spamming"), impersonation of originating messages ("spoofing"), breach of security, or any harassing or harmful materials or uses.

(c) Compliance with Laws. Company represents and warrants that it will, at all times during the term of this Agreement, comply with any and all applicable laws, rules and regulations, including, without limitation, any and all laws or regulations governing privacy, the use of data, consumer protection, and the export of software.

4. Intellectual Property Rights.

Notwithstanding anything to the contrary herein, Vendor shall retain, and neither Company nor its Customers shall obtain or claim (i) all title to, and, except as expressly licensed herein, all rights to the Vendor Service, all techniques and ideas imbedded therein, all copies and derivative works thereof (by whomever produced, including all changes and improvements requested or suggested by Company or its Customers) and all related documentation and materials, and (ii) all copyrights, patent rights, trade secret rights and other proprietary rights in the Vendor Service.

5. Fees and Payments.

(a) Subscription Fees. For each Company Customer who subscribes to the Vendor Service, Company shall pay to Vendor, on a quarterly basis, the subscription fees specified in Schedule A ("Fees"). Company, and not Vendor, shall establish all Company Customer fees. If Company is unable or unwilling to collect fees from Company Customers, this shall have no effect on the fees owed by Company to Vendor hereunder.

(b) Payments. Company agrees to pay all Fees hereunder when due, and any Fees not paid within thirty (30) days will bear interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower. All payments made under this Agreement shall be in U.S. Dollars.

(c) Books and Records. Company shall, during the term of this Agreement, and for a period of one (1) year thereafter, maintain records relating to the contracts, invoices, accounts, complaints, and other transactions that occur concerning this Agreement. Company agrees that Vendor shall, upon five (5) days' prior written notice, have the right to inspect and audit such records and other financial information pertaining to Company and this Agreement during normal business hours. Company shall reimburse Vendor on a prompt basis for the cost of any such audit in the event the audit reveals that the amount paid to Vendor is at least ten percent (10%) less than the amount actually due.

6. Limited Warranties and Disclaimers.

(a) Warranty. Vendor warrants that it owns or has licensed all rights necessary to grant Company the rights granted in this Agreement and that Company's promotion and marketing of the Vendor Service in accordance with this Agreement will not infringe any valid United States patent or copyright belonging to a third party.

(b) Exclusions. The foregoing notwithstanding, Vendor does not represent or warrant that the Vendor Service will meet the requirements of Company or any Customer or that the operation or use thereof will be uninterrupted or error-free.

(c) Warranty Disclaimer; Assumption of Risk. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, VENDOR, ON BEHALF OF ITSELF AND ITS SUPPLIERS, EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE VENDOR SERVICE OR ITS CHARACTERISTICS, QUALITY, PERFORMANCE OR VALUE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(d) Damage Waiver. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, VENDOR, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS, AND AS AGAINST VENDOR AND ITS SUPPLIERS COMPANY HEREBY WAIVES, ANY AND ALL LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, USE OR DATA) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE USE OF THE VENDOR SERVICE, EVEN IF VENDOR HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.

(e) Damage Limitation. To the maximum extent permissible under applicable law, Company agrees that the cumulative liability of Vendor to Company or its Customers for all claims arising out of or relating to this Agreement, if any, whether based on breach of warranty, breach of contract, negligence, other tort claims, strict liability, or any other legal theory, shall not exceed the Fees paid by Company to Vendor hereunder.

(f) Limitation on Actions. Neither party may bring any action, regardless of form, arising out of nor relating to this Agreement more than one (1) year after the cause of action has accrued.

(g) Fair Risk. Company has carefully considered the risks and rewards associated with the entirety of this Agreement, accepts the limitations and disclaimers contained in this Section 6 and will not take any contrary position.

7. Term and Termination.

(a) Term. This Agreement shall commence on the Effective Date and continue in effect for a period of one (1) year (the "Initial Term"), whereupon this Agreement shall automatically renew for successive one (1) year periods (each a "Renewal Term"), unless either party gives the other written notice of termination at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.

(b) Termination. Either party may terminate this Agreement immediately, if the other party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice.

(c) Events Upon Termination. Upon termination of this Agreement, all rights granted hereunder to Company shall terminate and revert to Vendor, and Company shall: (i) cease all advertising, marketing and sales of access to the Vendor Service; (ii) cease all use of the Marks, (iii) pay to Vendor all Fees owing as of the date of termination and (iv) continue to comply with the confidentiality requirements set forth in this Agreement.

8. Confidentiality; Non-publication.

(a) Confidentiality.

Both parties acknowledge that, during the term of this Agreement, each party may provide the other with confidential and/or proprietary information, including but not limited to data, information, ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data or other relevant information that is marked "confidential" (or similarly) or, if not so marked, is clearly intended to be confidential (collectively, "Confidential Information").

Each party shall protect all such Confidential Information of the other with at least the same degree of care it uses to protect its own confidential information, but not less than a reasonable degree of care. Neither party shall use, disclose, provide, or permit any person to obtain any such Confidential Information in any form, except for employees, agents, or independent contractors whose access is required to carry out the purposes of this Agreement and who have agreed to be subject to the same restrictions as set forth herein. Each party acknowledges that the unauthorized use or disclosure of the other party's Confidential Information would cause irreparable harm and significant injury that may be difficult to compensate. Accordingly, each party agrees that the other party will have the right to seek and obtain temporary and permanent injunctive relief in addition to any other rights and remedies it may have.

The confidentiality obligations of this Section shall not apply to any information received by a party that (i) is generally available to or previously known to the public, (ii) can be reasonably demonstrated was known to such party prior to the disclosure of the information (iii) is independently developed by such party outside the scope of this Agreement without use of or reference to the other party's Confidential Information, (iv) is lawfully disclosed pursuant to a court order, provided that the party subject to such order shall promptly notify the party whose Confidential Information is to be disclosed, so such party may seek a protective or similar order or (v) is made available to the receiving party by a third party without an obligation of confidentiality.

(b) Non-Publication. Each party agrees that during the term of this Agreement and for a one (1) year period following termination or expiration hereof for any reason, it will not directly or indirectly publish any comparative analysis, benchmark/performance data report or the like involving the other party's software, products, or services without the prior written consent of the other party.

9. Independent Contractor; Indemnification.

(a) Independent Contractor. Vendor and Company expressly acknowledge and agree that they are acting as independent contractors and not employees or agents of the other. Vendor and Company are not, and shall not in any direct or indirect way hold themselves out as, or be considered to be, joint venturers, partners, principals, servants, employees, or fiduciaries of each other, and neither Vendor nor Company shall have the power to bind or obligate the other.

In particular but without limiting the generality of the foregoing, there shall be no liability on the part of Vendor to any other person or entity for any liability or debts howsoever incurred by Company.

(b) Indemnification. Company shall defend, indemnify and hold harmless Vendor and its officers, directors, employees, and agents from and against any and all claims, costs, damages, expenses, losses or other liabilities (including, without limitation, reasonable attorneys' fees) arising out of or in any way related to (I) Company's negligence or willful misconduct, (ii) Company's advertising, marketing or promotional activities, or (iii) the Company products or the Host Site.

10. Miscellaneous.

(a) Entire Agreement. This Agreement, together with the attached Schedules and Exhibits, shall constitute the entire agreement between the parties and shall supersede any other existing agreements between them, whether oral or written, with respect to the subject matter hereof. There are no oral understandings or undertakings of any kind with respect hereto not expressly set forth and contained herein. No agent of either party shall have any authority to change or modify any of the terms of this Agreement and no amendment of this Agreement shall be of any effect unless in writing and signed by a duly authorized officer of each party.

(b) Force Majeure and Internet Frailties. Any delays in or failure by either party hereto in the performance of any obligation hereunder shall be excused if and to the extent caused by occurrences beyond such party's reasonable control, including but not limited to acts of God, strikes or other labor disturbances, war (whether declared or not), sabotage, interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, and any other cause or causes, whether similar or dissimilar to those herein specified, that cannot reasonably be foreseen or controlled by such party. Company acknowledges that the Internet consists of a series of networks that are subject to failures and errors in operation and transmission. In no event shall Vendor be liable for or as a result of any such failures, errors, access, modifications, diversions or disclosures.

(c) Impossibility. In the event that further lawful performance of any part of this Agreement by either party shall be rendered impossible by or as a consequence of any law, or any act of any government or political subdivision thereof having jurisdiction over such party or directly or indirectly over a parent company of such party, such party shall not be considered in default hereunder by reason of any failure to perform occasioned thereby.

(d) Governing Law and Venue. This Agreement shall be interpreted and construed under the laws of the State of without regard to its conflicts of law principles. Any claims or legal actions by one party against the other arising under this Agreement shall be commenced in any state or federal court located in the State of , and both parties hereby submit to the jurisdiction and venue of any such court. If legal action is brought to enforce this Agreement or any rights arising under this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees.

(e) Assignment. Company shall not assign its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law, or otherwise, without the prior written consent of Vendor, and any attempt to do so shall be deemed a material breach of this Agreement.

(f) Notice. All notices hereunder shall be in writing. All such notices may be given personally, by certified or registered mail, by overnight courier using a delivery receipt of record or by facsimile transmission. All such notices shall be deemed to be received as follows: (i) if delivered personally, when received; (ii) if mailed, three (3) days after being mailed; (iii) if sent by overnight courier, when signed for and (iv) if sent by facsimile, when the fax has been transmitted over the telephone lines, as evidenced by a facsimile confirmation report generated by the transmitting machine and provided any facsimile transmission is followed up with a written notice sent by mail. Notices shall be sent to the parties at the addresses listed above or at such other addresses as the parties from time to time may designate.

(g) Severability. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, such provision shall be reformed to the minimum extent necessary to cause such provision to be valid and enforceable, provided the reformed provision shall not have a material adverse effect on the substantive rights of either party. If no such reformation is possible, then such provision shall be deemed omitted, and the balance of the Agreement shall remain valid and enforceable, unaffected by such provision.

(h) Waiver. No waiver of any provision of this Agreement shall be binding unless executed in writing by the party making the waiver. No waiver of any of the provisions of this Agreement shall be deemed a waiver of such provision on any other occasion, nor the waiver of any other provision, whether or not similar. No delay in the enforcement of any provision of this Agreement shall constitute a waiver of the right to enforce such provision in that or any other instance.

(i) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be considered an original and all of which shall constitute one and the same instrument.

(j) Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

(k) Survival. All provisions of this Agreement relating to confidentiality, non-disclosure, proprietary rights, indemnification and limitations of liability shall survive the termination of this Agreement.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.

SCHEDULE A

Subscription Fees

EXHIBIT A

Vendor Terms of Use

[See Attached]