Reseller End-User Terms of Service Agreement

ORACLE END-USER TERMS OF SERVICE AGREEMENT FOR DYN SERVICES

(For customers or end-users of Oracle’s authorized resellers of Dyn Services)

PLEASE NOTE:  BY ACCEPTING THIS AGREEMENT, EITHER BY (A) COMPLETING AND SUBMITTING TO ORACLE AMERICA, INC. (“ORACLE,” “US,” “OUR,” OR “WE”) AN ONLINE REGISTRATION FORM REFERENCING THIS AGREEMENT OR OTHERWISE INDICATING YOUR ACCEPTANCE OF AN ONLINE VERSION OF THIS AGREEMENT, (B) SIGNING A COPY OF THIS AGREEMENT, OR (C) SIGNING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (E.G., YOUR EMPLOYER, PRINCIPLE OR CLIENT), YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO (AND, AS USED HEREIN, THE TERMS “CLIENT,” “YOU” AND “YOUR” REFER TO YOU AND, IF APPLICABLE, ANY SUCH ENTITY). IF YOU ARE NOT SO AUTHORIZED, OR IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT.
1. Scope of Agreement.
1.1.  This Agreement governs Your purchase and use, and Oracle’s provisioning, of Oracle’s enterprise Dyn services via Oracle’s reseller program (the “Services”). If You use and/or purchase Dyn services outside of Oracle’s reseller program (including, but not limited to, Oracle’s Dyn domain registration services and other services purchased via www.dyn.com or otherwise purchased directly from Oracle), Your use and purchase of such services shall be governed by the terms and conditions found at www.dyn.com/legal. For the purposes of this Agreement, the term “Reseller” shall refer to the authorized reseller of Oracle’s enterprise Dyn services from which You have agreed to purchase the Services.

2. Grant of Service, Restrictions.
2.1.  You may use the Services solely for Your legitimate, internal business purposes.

2.2.  You agree that the Services will not be used:

(i) in a manner that violates, or in a manner that facilitates the violation of, any applicable law, rule or regulation;

(ii) in a manner the violates, or in a manner that facilitates the violation of, the rights of any third party, including, without limitation, the intellectual property or privacy rights of any third party;

(iii) in a manner that negatively affects Oracle or its systems or networks;

(iv) in a manner that negatively affects a third party’s use and enjoyment of the Services or any other services provided by Oracle; or

(v) in a manner that violates Oracle’s Acceptable Use Policy for Dyn Services, which can be found at www.dyn.com/legal and modified by Oracle from time to time and in its sole discretion.

2.3.  You also agree to:

(i) use the Services in accordance with all applicable Internet policies and procedures, including, without limitation, all RFCs relating to the use of DNS and DNSSEC; and

(ii) fully cooperate with Oracle in connection with its provisioning and Your use of the Services.
3. Client Credentials.
In no event will Oracle be liable for any unauthorized use or misuse of Your user name(s), password(s), or (as applicable) DNS Keys or Trust Anchor (whether during ‘rollover’ or otherwise).  You agree not to use any password You use to access and/or use the Services to access or use any non-Oracle account, products or services.

4. Ownership.
4.1.  The Services.  OTHER THAN THE LIMITED RIGHT TO USE THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, YOU DO NO HAVE ANY PROPRIETARY OR OTHER RIGHTS IN AND TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, PERFORMANCE DATA AND ORACLE DATA) OR ANY DOCUMENTATION ASSOCIATED THEREWITH. ALL OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SERVICES, ANY DOCUMENTATION ASSOCIATED THEREWITH AND ANY COPY OF THE SAME MADE BY YOU REMAINS WITH ORACLE AND/OR ITS SERVICE PROVIDERS.

4.2.  Client Content. You acknowledge and agree that Oracle does not exercise any control over any data, information or other content that You and/or Your end users upload to Oracle’s systems or networks or otherwise transmit to Oracle or its systems or networks via Your use of the Services (“Client Content”), and that You are solely responsible for Client Content. Furthermore, You acknowledge and agree that Oracle will have no liability or responsibility for any Client Content.

4.3.  Performance Data.  Oracle shall exclusively own all right, title, and interest to data produced by Oracle’s systems and networks in the course of the delivery of the Services to You and Your end users.

4.4. Oracle Data. For the purposes of this Agreement, the term “Oracle Data” means means all information, data and specifications provided by Oracle through the Services. Oracle Data is Oracle’s Confidential Information. Accordingly, You may not disclose Oracle Data to any third party without Oracle’s express, prior written consent in each instance, which Oracle is under no obligation to provide. In the event that Oracle consents to the disclosure of Oracle Data in accordance with the foregoing, You will provide Oracle with reasonable attribution for any disclosure or publication of the Oracle Data. Oracle will have no liability to any third party to which You disclose any Oracle Data (whether with Oracle’s consent or in violation of this Agreement), including without limitation any operator of a third party measurement target. You may not sell, re-sell, distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service or the Oracle Data to any third party or reproduce or create derivative works based upon the Service or Oracle Data, or any portion thereof, without the express permission of Oracle.

5. Confidentiality.
You shall not disclose Oracle Confidential Information, or any part thereof, to any third party. You shall only use Oracle Confidential Information to exercise Your rights and obligations under this Agreement. Furthermore, You agree to use the same degree of care to protect Oracle’s Confidential Information from accidental and/or unauthorized use and disclosure as You use to protect Your own confidential information, but in no event shall such degree of care be less than a reasonable degree of care. For the purposes of this Agreement, “Oracle Confidential Information” means (i) any and all documents and other materials that are marked as being confidential or proprietary, and (ii) any and all information that one would reasonably deem to be confidential given the nature of the information and the circumstances regarding its disclosure, including, but not limited to, trade secrets, object and source code, know-how, proposed products and services, research and development, business forecasts, finances and customer lists.

6. Privacy Policy. 
You hereby agree to the terms of, and expressly consent to the collection and use of personal data in accordance with, Oracle’s Privacy Policy for Dyn Services, which can be found at www.dyn.com/legal.

7. Acceptable Use Policy.
You agree that You and Your Users shall at all times comply with the terms of Oracle’s Acceptable Use Policy for Dyn Services, which can be found at www.dyn.com/legal.

8. DISCLAIMER OF WARRANTIES
8.1.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ORACLE DOES NOT MAKE ANY ADDITIONAL PROMISES, EITHER EXPRESS OR IMPLIED, REGARDING ORACLE’S PERFORMANCE UNDER THIS AGREEMENT. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND ORACLE DOES NOT GUARANTEE THAT THE SERVICES WILL BE FREE OF ANY MATERIAL FUALTS, INTERRUPTION OR UNAVAILABILITY.

8.2.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, ORACLE HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESSED AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

8.3.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ACKNOWLEDGES THAT THE INTERNET CONSISTS OF MULTIPLE INTERCONNECTED NETWORKS THAT ARE INDEPENDENTLY OWNED AND NOT SUBJECT TO ORACLE’S CONTROL, AND THAT ORACLE DOES NOT WARRANT THE SERVICES AGAINST FAILURE, MALFUNCTION, OR CESSATION OF INTERNET SERVICES OR CONNECTIVITY BY INTERNET SERVICE PROVIDERS OR ANY OF THE NETWORKS THAT MAKE UP THE INTERNET THAT MAY MAKE THE SERVICES TEMPORARILY OR PERMANENTLY UNAVAILABLE.

9. LIMITATION OF LIABILITIES.
9.1.  LIMITATION OF LIABILITY FOR SPECIFIC TYPES OF DAMAGES.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT ORACLE AND RESELLER WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARISE FROM A BREACH OF CONTRACT OR ORACLE’S OR ITS EMPLOYEES’ NEGLIGENCE.

9.2.  GENERAL LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ORACLE’S AND RESELLER’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM ORACLE’S AND/OR ITS EMPLOYEES’ NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES PROVIDED HEREUNDER DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AT ISSUE ACCRUED.

9.3.  LIMITATION OF REMEDIES.  ORACLE’S AND RESELLER’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDIES FOR A FAILURE TO PROVIDE THE SERVICES (INCLUDING, BUT NOT LIMITED TO, FAULTS, DEFECTS OR PERIODS OF UNAVAILABILITY OF THE SERVICES, A FAILURE OF THE SERVICES TO CONFORM TO THE DESCRIPTIONS SET FORTH IN THIS AGREEMENT) SHALL BE LIMITED TO THE PROVISIONING OF CREDITS OR A REFUND OF FEES PAID (WHICHEVER THE CASE MAY BE) IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT RELATING TO YOUR PURCHASE OF THE SERVICES ENTERED INTO BETWEEN YOU AND YOUR RESELLER.

9.4.  MISCELLANEOUS.  THE LIMITATIONS SET FORTH IN THIS SECTION 9 APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.  YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

10. Indemnification.
You agree to hold harmless and indemnify Oracle and its affiliates, officers, agents, and employees from any third-party claim, suit or action (including, without limitation, governmental action, fines or penalties) arising from or related to the use of the Services provided hereunder and/or Your violation of this Agreement, including any liability or expense arising from claims, losses, damages, suits, judgments, administrative hearings, litigation costs and attorneys’ fees.

11. Termination, Suspension, Modification and Discontinuation of Services
11.1.  Oracle may, in its sole and unfettered discretion, suspend or terminate the Services at any time and for any actual, suspected or anticipated breach of this Agreement by You or any use of the Services that may negatively affect Oracle, its systems or networks or any third party.

11.2.  Oracle may, in its sole and unfettered discretion, alter or discontinue the Services, either in whole or in part, at any time and without notice.

11.3.  Oracle shall not be liable for termination or suspension of the Services in accordance with this Section 11 (Termination, Suspension and Modification of Services).

12. Term, Termination
12.1.  Term.

The term of this Agreement shall commence upon Your acceptance of the terms and conditions of this Agreement and shall expire upon the occurrence of any one of the following events: (i) the expiration or termination of the agreement entered into between Oracle and the Reseller pertaining to the resale and provisioning of the Services, (ii) the expiration or termination of the agreement entered into by and between You and the Reseller pertaining to the resale and/or use of the Services, or (iii) the termination of this Agreement in accordance with the terms and conditions set forth herein.

12.2.  Termination.

In addition to any other rights or remedies that Oracle may have, Oracle may immediately terminate this Agreement (i) for any actual, suspected or anticipated breach of this Agreement by You, and/or (ii) in the event that Oracle believes, in its sole discretion, that Your or Your end users’ use of the Services negatively affects Oracle, its systems or networks or any third party. Furthermore, Oracle may terminate this Agreement without cause at anytime and without notice.

12.3.  Effect of Termination or Expiration.

(a)   Upon the termination or expiration of this Agreement, all use of the Services must immediately cease and You shall immediately return or destroy all copies of Oracle Confidential Information disclosed to or obtained by You.

(b)  The respective rights and obligations of the Parties hereto shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive, including, but not limited to, those rights and obligations set forth in Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18 and 19.

13. United States Government End Users.
The Software and any associated documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. You agree that when you license the Software for acquisition by the U.S. Government, or any sub-unit or contractor therefore, You will license it consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. §§ 227-7202-1 and 227-7202-4 (for the Department of Defense).

14. Export Compliance.
You will comply with all applicable export control and economic sanctions laws and regulations of the United States and other governments in the performance of this Agreement and in the import, export, re-export, shipment, transfer, use, operation, maintenance, or repair of the Services and any related technical data and services.

15.  Relationship of the Parties.
The performance by Oracle of its duties and obligations under this Agreement and shall be that of an independent contractor, and nothing in this Agreement shall create or imply an agency relationship between the Parties, nor will the Agreement be deemed to constitute a joint venture or partnership between the Parties.

16.  Governing Law and Jurisdiction.
This Agreement is governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it.

17. Severability.
If any provision of this Agreement is determined by a court to be invalid, illegal, or unenforceable, such determination shall not impair or affect the validity, legality, or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereto, is hereby declared to be separate, severable, and distinct and the Parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties had the stricken provision remained.

18. Amendments.
This Agreement may only be modified by written agreement of the Parties. Notwithstanding the foregoing, Oracle may revise the terms of this Agreement, Oracle’s Privacy Policy for Dyn Services and Oracle’s Acceptable Use Policy for Dyn Services from time to time and in its sole discretion.

19. Assignment.
You may not assign any of Your rights or obligations under this Agreement absent Oracle’s prior written consent. Any assignment of such rights or obligations in violation of this Agreement shall be null and void. Any valid assignment of Your rights and obligations under this Agreement shall not relieve You of any obligations or liabilities which arise prior to or on the date of such assignment.

20. Entire Agreement and Waiver.
This Agreement is the complete and exclusive statement of the agreement between the Parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the Parties in relation to the subject matter of this Agreement.

21. Contact Information.
You shall provide the Reseller with Your contact information and shall ensure that such information is accurate and up-to-date at all times. If You have a legal dispute with Oracle or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: Oracle America, Inc., 500 Oracle Parkway, Redwood Shores, CA 94065, Attention: General Counsel, Legal Department. Oracle may give notices applicable to our Services customers by means of a general notice on the Oracle portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in Oracle’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Oracle’s account information.

 

Oracle End-User Terms of Service for Dyn Services Agreement (Reseller Program)

Last modified June 29, 2017