PC TOOLS LIMITED RESELLER PROGRAM
Terms, Conditions and Notices
PC Tools Limited ("PC Tools") Reseller Program Terms, Conditions and Notices.
IMPORTANT NOTIFICATION: YOUR APPOINTMENT TO THE PC TOOLS RESELLER PROGRAM ("RESELLER PROGRAM") IS CONDITIONAL UPON YOU AGREEING TO THE TERMS AND CONDITIONS SET OUT BELOW ("THIS AGREEMENT").
AS A PARTICIPANT IN THE RESELLER PROGRAM, AND AS A RESELLER OF PC TOOLS' SOFTWARE, YOU AGREE TO ABIDE BY THE FOLLOWING TERMS AND CONDITIONS.
1. Reseller Program
The PC Tools Reseller Program appoints persons as authorised resellers ("Reseller") to resell PC Tools' software products ("Software") to end users. For the purposes of this Agreement, an end user is a person who obtains the Software for their own personal use but not for resale.
Unless you are appointed as a Reseller, you must not resell or re-supply any copy of the Software held by you to any person. Your appointment as a Reseller is not automatic and must be approved by PC Tools. PC Tools may either approve or reject your application to be a Reseller in its sole discretion. Your appointment as a Reseller is non-exclusive and non-transferable. The rights granted to you under this Agreement are subject to PC Tools approving your appointment as a Reseller.
As a Reseller, you will pre-purchase licence keys from PC Tools for each copy of the Software which you intend to re-sell to an end user. A licence key is a code which when entered into the Software by an end user, registers that copy of the Software for use by the end user and unlocks certain functionality in the Software which is only available to registered end users. In the case of enterprise Software or other multi-user Software, one licence key may be used to install and use the Software on one or more computers owned by an end user. A licence key for enterprise or multi-user Software may be limited by PC Tools in a number of ways, including (but not limited to) with respect to the number of copies of the Software which the end user may install and/or execute at the same time.
You may order licence keys from PC Tools by placing an order via the interface provided on our website or via any other means specified by PC Tools from time to time. PC Tools may in its discretion refuse any order for a licence key placed by you.
As a Reseller, you are also permitted to renew licence keys on behalf of end users by placing an order via the interface provided on our website or via any other means specified by PC Tools from time to time. PC Tools reserves the right to renew licence keys directly with an end user where the end user contacts PC Tools directly, or where you have failed to renew a licence key on behalf of an end user within 30 days after the subscription expiry date.
You may only distribute the Software to end users who have purchased the Software from you by providing those end users with a licence key for the Software and by providing a copy of the Software to end users using the following means:
a. allowing end users to download the software by providing end users with a link to the trial version of the Software appearing on your website or on the PC Tools website subject to terms and conditions set out by PC Tools, which terms and conditions may be amended by PC Tools from time to time;
b. providing a hard copy of the trial version of the Software to end users. You must not include any PC Tools branding or art work on any hard copy of the trial version of the Software provided to an end user (including, without limitation, any CD or CD sleeve); or
c. installing a copy of the trial version of the Software on an end user's computer on the end user's behalf.
Apart from where specified above, you are not licensed or permitted to resell the Software in hard copy form (including, without limitation, on CD or DVD or in any retail packaging).
You must only resell the Software to end users. You are not permitted to re-sell or re-supply the Software to any person for the purposes of resale by that person. You must only supply one licence key to an end user for each copy of the Software which you sell. You must not resell a licence key that has previously been sold.
You acknowledge that PC Tools may rely on a third party billing provider for identifying and recording all purchases made by you in accordance with this Agreement. You agree to sign up to an account with that third party billing provider where required by PC Tools.
2. PC Tools CheckUp utility
As a Reseller, you are also permitted to download the PC Tools CheckUp utility ("PCCU") from the PC Tools website and run PCCU on end users' computers in accordance with this Agreement. PCCU is a free utility that is designed to check and provide a report on the security and stability of a computer. Each copy of PCCU also contains trial versions of certain Software published by PC Tools.
You may distribute PCCU to an end user via download from your website or by running PCCU on an end user's computer directly from a removable storage device (such as a USB device).
PCCU is intended to be a free utility to be distributed to end users. You are not permitted to resell PCCU to end users. You are only permitted to distribute PCCU free of charge.
3. Payment Terms
The purchase price payable by you for each licence key, including any renewals of licence keys in accordance with this Agreement, shall be determined and specified by PC Tools in its sole discretion and may vary between each purchase of Software made by you. PC Tools will advise you of the purchase price upon the placement of any order for licence keys by you.
Unless otherwise stated to the contrary by PC Tools, the purchase price charged to you by PC Tools for each licence key which you purchase is exclusive of any taxes (including, without limitation, any GST, VAT, withholding taxes or other sales taxes). PC Tools may increase the purchase price payable by you or impose an additional charge in respect of any such taxes which PC Tools is required to pay.
You must pay the purchase price for each licence key ordered by you from PC Tools prior to the supply of the licence key to you, or, where applicable, the renewal of the licence key, by PC Tools. In some circumstances, PC Tools may separately agree in writing to allow you to purchase licence keys on credit, in which case the following additional terms and conditions will apply:
a. any grant of credit is at PC Tools sole and absolute discretion. PC Tools may withdraw or reinstate credit to you at any time at its discretion, with or without notice to you;
b. you agree that PC Tools may obtain information a consumer credit report containing information about you from a credit reporting agency for the purpose of assessing your application for credit;
c. you agree to PC Tools obtaining personal information about you from other credit providers, whose names you may have provided for PC Tools or that may be named in a credit report, for the purpose of assessing your application for credit made to PC Tools;
d. unless otherwise agreed in writing by PC Tools, you will not be permitted to maintain more than US $20,000 (or its equivalent) worth of unpaid licence keys at any one time. PC Tools will not be under any obligation to fulfil a licence key order if the fulfilment of that order will place you above this limit. PC Tools may in its discretion increase or decrease this credit limit at any time;
e. unless otherwise agreed in writing by PC Tools, payments for licence keys ordered by you will be payable to PC Tools on a calendar monthly basis within 30 days of the end of each calendar month, irrespective of whether you have collected payment for the licence keys from the relevant end user;
f. PC Tools may charge interest at a rate of 10% per annum on any payments found to be owed and not yet paid by the date they are due. Such interest will begin accruing from the date that the payment falls due and will be payable by you to PC Tools on demand; and
g. without limiting any other rights that PC Tools may have at law or under this Agreement, if PC Tools does not receive payment from you in full for any licence keys ordered within 60 days after the end of the calendar month in which the licence key was ordered, PC Tools may cancel those licence keys.
4. Term/Termination
This Agreement and your participation on a non-exclusive basis in the Reseller Program will commence from your appointment as a Reseller of PC Tools, as advised to you by PC Tools, and may be terminated by PC Tools at any time with or without notice to you. Failure to abide with this Agreement may result in the immediate termination of your appointment as a Reseller. PC Tools may terminate this Agreement and your appointment as a Reseller at any time in its sole discretion, on written notice to you.
Upon termination, you shall immediately cease reselling and distributing the Software and remove all trade marks, logos or artwork of PC Tools from your website, and any reference or link from your website to PC Tools, PCCU, the Software or other products owned or marketed by PC Tools and/or the PC Tools website. You must also remove and destroy any point of sale materials and printed materials and cease any other marketing communications or programs which make reference to your affiliation with PC Tools or which include any PC Tools logos, artwork or trademarks.
Your obligations under paragraphs 5, 6, 7 and 8 below shall survive the termination of your appointment as a Reseller.
5. Reseller Obligations
As a Reseller, you shall:
a. ensure that all materials presented on your website(s) or in any email or other marketing communications sent by you to promote PC Tools and/or the Software, represents PC Tools and/or the Software in a professional, accurate and positive manner;
b. not use any unsolicited or spam email to promote PC Tools and/or the Software;
c. provide your own original website copy, images and navigation to promote PC Tools and/or the Software on your website(s) or in any email or other marketing communications and not directly copy the PC Tools website;
d. not use ad words which include PC Tools' trademarked company name (PC Tools), PC Tools' software names (for example, which would include, without limitation, "File Recover", "PCCU", "PC Tools AntiVirus", "PC Tools CheckUp Utility", "Privacy Guardian", "Registry Mechanic", "Spam Monitor", "Spyware Doctor" and "Spyware Doctor Enterprise") or other PC Tools' trade marks or copyrighted material or any other intellectual property of PC Tools in any search engine advertising;
e. keep up-to-date all information on your website(s) and in all direct marketing communications pertaining to products of PC Tools;
f. ensure that your website(s) is regularly maintained with up to date and relevant information and that any direct marketing communications used to promote PC Tools and/or its Software contain up to date information; and
g. not endorse PC Tools or the Software on any website or in any marketing materials or communications which:
i. are designed to distribute or promote spyware, adware, trojans, spybots or keyloggers;
ii. contain misleading or deceptive marketing activities;
iii. involve or promote violence;
iv. discriminate against people based on race, sex, religion, nationality, disability, sexual orientation, or age;
v. are in any way involved in illegal activities;
vi. violate the intellectual property rights of PC Tools or a third party;
vii. do not have or do not link to a clearly stated online privacy policy; and/or
viii. contain any offensive or inappropriate content or is otherwise involved in any matter considered to be offensive or inappropriate by PC Tools.
6. Marketing and use of PC Tools' Intellectual Property
The manner through which you may promote or market the Software (i.e., via website, newsletter or other means) must be approved by PC Tools before you undertake the promotion or relevant marketing campaign.
PC Tools hereby grants you non-exclusive and revocable licence to make use of the PC Tools name(s) and logos relating to its Software ("Marketing Brands") on your website(s) which relate to the Software and in any marketing materials or communications for the Software. The Marketing Brands may only be used on your website and in such marketing materials in accordance with the instructions of PC Tools as may be specified by PC Tools from time to time. Such licence will terminate upon the termination of your appointment as a Reseller. You agree to immediately modify your website and any marketing or promotional materials published by you in respect of the use of the Marketing Brands within 48 hours of receiving PC Tools written request.
You acknowledge and agree that your appointment as a Reseller in no way grants you any intellectual property rights or other rights in PCCU or the Software, other than the right to re-sell the Software and install and run PCCU as granted by this Agreement. PC Tools reserves all rights in and to the Software, the PCCU and the Marketing Brands not otherwise expressly granted under this Agreement.
You agree not to make or provide any warranty or undertaking in relation to the Software aside from those specifically permitted by PC Tools in writing to you.
7. Liability/Indemnity
In the event any terms, conditions, representations or warranties are implied by statute, common law or equity ("Prescribed Terms") into this Agreement which cannot be lawfully excluded, such Prescribed Terms will apply, save that PC Tools' liability for breach of any such Prescribed Terms will be limited, to the extent permitted by law, at PC Tools' option, to any one or more of the following:
(a.) in the case of goods:
i. the replacement of the goods to which the breach relates or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired; and
b. in the case of services:
i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again.
If PC Tools' liability for breach of any Prescribed Terms are capable of exclusion, they are hereby excluded to the fullest extent permitted by applicable law. For the avoidance of doubt all warranties implied under Section 13, 14 and 15 of the Sale of Goods Act, 1893 and 1980 are hereby excluded to the extent that is fair and reasonable and the warranties as implied by the Sale of Goods and Supply of Services Act, 1980, (including Section 39) are hereby excluded.
Except as provided by the Prescribed Terms (if any), which are not capable of exclusion or limitation, or as expressly set out in this Agreement:
a. PC Tools makes no warranties in relation to the Reseller Program, PCCU or any Software, including warranties as to the performance or fitness for purpose of PCCU or the Software (other than PC Tools is entitled to grant to you the rights set out in this Agreement); and
b. you will not under any circumstances have any cause of action against, or right to claim or recover from PC Tools for or in respect of any loss, damage or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury, loss of profits, loss of data, loss of business opportunity or economic loss) arising from your membership of the Reseller Program and the promotion of PCCU or any Software or any breach of this Agreement.
You agree that the maximum liability that PC Tools may have to you for any and all breaches of this Agreement will be, for any one breach, the amount paid by you for the 3 month period occurring prior to the breach and, for all breaches, capped at the total amount paid by you under this Agreement.
You acknowledge that you have exercised your independent judgment in entering into the Reseller Program and have not relied upon any representations made by PC Tools which have not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by PC Tools.
You agree that you will indemnify and keep indemnified PC Tools, its officers and agents against any loss, cost, expense or damage (including legal fees) which they suffer or incur which arises directly or indirectly as a result of a breach by you, your servants and/or agents of your obligations arising under this Agreement.
PC Tools does not warrant that the Software will perform error-free or interrupted or that PC Tools will correct all program errors.
8. General Provisions
PC Tools may amend the terms of this Agreement at any time upon written notice to you ("Amendment Notice"). Any amended terms will take effect from the date of PC Tools' Amendment Notice and will apply to all orders of licence keys made by you from that date. You agree that you will be bound by such amendments from the date that you receive the Amendment Notice. If you do not agree to the amendments contained in an Amendment Notice, then you must advise PC Tools in writing of your disagreement within 7 days of receiving the Amendment Notice in which case your appointment as a Reseller will immediately terminate.
Any notice given under this Agreement must be in writing. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
a. in the case of a notice delivered by hand, when so delivered;
b. in the case of a notice sent by pre paid post, on the seventh clear Business Day after the date of posting;
c. in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that all of the pages comprised in the notice have been successfully sent to the receiving party's facsimile number; and
d. in the case of a notice sent by email, within 24 hours of the time that the email is sent, unless the recipient can prove that the email was never received or was received at a later time.
You agree that neither you nor PC Tools is the partner, agent, employee or representative of the other and neither you nor PC Tools has the power to incur any obligations on behalf of, or pledge the credit of, the other.
There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
The covenants, conditions, provisions and warranties contained in this Agreement will not merge or terminate upon completion of the transactions contemplated by this Agreement, but to the extent that they have not been fulfilled and satisfied or are incapable of having effect will remain in full force and effect.
A provision of or a right created under this Agreement may not be waived or varied except in writing signed by the party or parties to be bound by the waiver or variation. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement, and cannot be assigned by the Reseller without the prior written consent of PC Tools.
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
This Agreement shall be governed by and construed according to the laws in force in Ireland. The parties hereby irrevocably submit to and accept the exclusive jurisdiction of the courts of Ireland. Nothing in this clause shall limit the right of the parties to seek provisional or protective relief in the courts of another State, prior to, during or after any substantive proceedings have been instituted in Ireland.
* * *
If you have any questions or require clarification relating to this Agreement, please contact PC Tools online at www.pctools.com or by mail at PC Tools Limited, Units A & B, Block 4, Shannon Business Park, Shannon, County of Clare, Ireland.
Click the "Accept" button to agree to these terms. If you do not agree to these terms, click the "Decline" button. Note that participation in the PC Tools Reseller Program requires your agreement to these terms in their current form without amendment.
Last updated: 16 April 2007
