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RESELLER AGREEMENT
WebGenie Software

THIS RESELLER AGREEMENT is made on the date specified in Item 1 of the Schedule
Between
WebGenie Pty Ltd of 34 Anderson Street, Thebarton, South Australia (hereafter referred to as "WebGenie")
and
The Reseller identified in Item 3 of the Schedule (hereafter referred to as "Reseller")
WHEREAS WebGenie wishes to appoint the Reseller and the Reseller wishes to be appointed to market and negotiate licenses to use WebGenie Software in the Territory
Now the parties agree as follows:
1 Definitions and interpretation
In this Agreement, unless the context otherwise requires the following definitions shall apply:
1.1 "Effective Date" means the date on which this Agreement takes effect as specified in Item 1 of the Schedule or, if no date is specified, the date of execution of this Agreement by WebGenie;
1.2 "Initial Period" means the initial period, as specified in Item 4 of the Schedule, or if no period is specified in the Schedule, means 12 months from the date of execution of this Agreement by WebGenie;
1.3 "Licence" means a right to use the Software;
1.4 "Licence Fee" means the net amount of the fee payable to WebGenie in connection with the grant of a Licence, after allowing for any applicable discount specified in the Reseller Plan;
1.5 "Licensed User" means an entity which has entered into a licence to use the Software;
1.6 "Reseller Plan" means the WebGenie Software Reseller Plan attached to this Agreement, as amended by WebGenie from time to time;
1.7 "Software" means all or any part of the software products of WebGenie together with all associated documentation, additional modules and future modified versions;
1.8 "Territory" means the area defined in Item 3 of the Schedule, or if no territory is defined in the Schedule, means the world.
2 Appointment of Reseller
WebGenie hereby appoints the Reseller on a non-exclusive basis to market the Software and to act as agent of WebGenie in granting Licences within the Territory. Licences granted by Reseller must be on terms and conditions expressly approved by WebGenie.
3 Duration of appointment
Unless earlier terminated in accordance with its terms, this Agreement shall commence on the Effective Date and shall continue for the Initial Period and thereafter until terminated by either party giving to the other not less than 30 days prior written notice of termination, such notice to take effect at the end of the Initial Period or at any time thereafter.
4 The Reseller Plan
4.1 The Reseller Plan sets out the various systems under which Reseller may grant Licenses and the amounts payable by the Reseller to WebGenie with respect to Licences granted or to be granted by the Reseller on WebGenie's behalf. WebGenie may make amendments to the Reseller Plan at any time by written notice to the Reseller.
4.2 Where the Reseller prepays Licence Fees to WebGenie under the Reseller Plan:
4.2.1 the Reseller is free to charge Licensed Users any fee which the Reseller considers appropriate with respect to the grant of Licences for which the Licence Fee has been prepaid; and
4.2.2 the Reseller may retain all payments received from Licensed Users in connection with the grant of Licences for which the Licence Fee has been prepaid.
4.3 Where the Reseller has not prepaid Licence Fees to WebGenie then, subject to the Reseller Plan:
4.3.1 the Reseller is free to charge Licensed Users any fee which the Reseller considers appropriate with respect to the grant of Licences; and
4.3.2 all payments received by the Reseller from Licensed Users must be held on trust by the Reseller for WebGenie until such time as WebGenie has received payment of all Licence Fees from the Reseller.
5 Obligations of Reseller
5.1 There are no specific sales or performance targets imposed on Reseller.
5.2 Any marketing and sales activity must be conducted in consultation with WebGenie and in accordance with any procedures and guidelines produced by WebGenie.
5.3 The Reseller must comply with all reasonable instructions and requirements of WebGenie relating to this Agreement with due and proper diligence and shall comply with the procedures specified by WebGenie from time to time including all relevant provisions of the Reseller Plan.
5.4 The Reseller shall bear all costs of its activities undertaken pursuant to or in connection with this Agreement.
5.5 The Reseller must not alter or reproduce any sales or marketing materials or trade marks or logos relating to the Software or WebGenie, except with the express prior approval of WebGenie.
5.6 At its expense, the Reseller shall:
5.6.1 comply with all laws and regulations which affect the Reseller's activities in the Territory (including, without limitation, obtaining all necessary licences or permits);
5.6.2 ensure that the provisions of this Agreement comply fully with all laws applicable within the Territory and advise WebGenie of any changes required to this Agreement or the procedures and documents used in connection with this Agreement in order to comply fully with all applicable laws; and;
5.6.3 pay all duties, excises, taxes or other imposts associated with any activities pursuant to this Agreement with the exception of any income tax payable by WebGenie.
5.7 The Reseller is not permitted to sub-contract or deal with any of its rights or obligations under this Agreement without the prior written consent of WebGenie, which consent may be withheld in the absolute discretion of WebGenie.
5.8 The Reseller must promptly advise WebGenie of any information which is or comes into the possession of the Reseller relating to the Software including information regarding marketing, product quality, competitor activity, and infringement of any intellectual property rights associated with the Software.
5.9 The Reseller must not market the Software outside the Territory.
5.10 The Reseller must take reasonable steps to protect the Software from unauthorised access at all times and must treat as confidential all information which WebGenie provides to the Reseller including (without limitation) information relating to the Software and to the business operations and affairs of WebGenie. The Reseller shall not disclose such information to any other party without WebGenie's prior written permission and the Reseller may only use such information and may only disclose such information to its employees to the extent necessary to give effect to the terms of this Agreement.
5.11 Except to the extent expressly authorised by WebGenie in writing, the Reseller shall not act or purport to act on behalf of WebGenie or incur any liability on behalf of WebGenie or pledge the credit of WebGenie or make any representation or give any warranty on behalf of WebGenie. Without limitation, the Reseller must not grant or purport to grant Licences except as expressly authorised by this Agreement.
5.12 Nothing in this Agreement shall create a relationship of partnership, joint venture, employment or any other relationship other than that of independent contractors.
5.13 The Reseller shall comply with all laws governing corporate morality and (without limitation) the Reseller shall not directly or indirectly offer, promise or give any thing of value to any official of any government for the purpose of assisting the Reseller or WebGenie to obtain or retain business.
6 Intellectual property rights
6.1 The Reseller shall not use or permit the use of any trade marks or other intellectual property rights of WebGenie except to the extent authorised by WebGenie in writing. The Reseller shall ensure that it avoids all acts and omissions which may lead to the invalidation of any trade mark or other intellectual property rights of WebGenie and (without limitation) the Reseller must not cause or permit any copyright, trade mark or other notice relating to the Software or Web Genie to be obscured, altered or removed.
6.2 The Reseller shall not seek to register any patents, trade marks, brand names, business names or other intellectual property interests associated with the Software or WebGenie without the prior written consent of WebGenie.
6.3 Upon termination of this Agreement, all rights to use trade marks and other intellectual property rights of WebGenie shall immediately cease.
6.4 The Reseller acknowledges that WebGenie owns all intellectual property rights associated with the Software and that WebGenie shall own all intellectual property and other rights associated with any modifications, enhancements, adaptations or translations of the Software and (to the extent necessary) the Reseller hereby assigns all such rights to WebGenie.
7 Assignment
The Reseller shall not assign this Agreement or any of the rights or obligations arising under this Agreement without the prior written consent of WebGenie, which consent may be refused, granted or granted subject to conditions at WebGenie's absolute discretion.
8 Warranties and liability
8.1 WebGenie neither makes any warranty or representation or authorises the making of any warranty or representation that the Software will meet the requirements of any particular user or that operation of the Software will be uninterrupted or error free.
8.2 Without limitation, WebGenie is not liable for:
8.2.1 losses or damages of the Reseller or of third parties claimed against the Reseller caused by the negligence or other tortious act or omission of WebGenie; or
8.2.2 loss of profits (actual or anticipated);
8.2.3 lost savings or any other incidental or consequential damages even if WebGenie has been advised of the possibility of such damages; or
8.2.4 any claim of whatsoever kind made by the Reseller unless written notice of the claim including full particulars are provided to WebGenie within six months after the occurrence of the events giving rise to the claim.
8.3 If circumstances arise where the Reseller is entitled to claim damages from WebGenie notwithstanding the other provisions of this Agreement, the liability of WebGenie to the Reseller for the aggregate of all such claims (regardless of the basis on which the Reseller is entitled to claim including, without limitation, negligence) is limited to the lesser of:
8.3.1 the amount of any actual loss or damage which the Reseller sustains and which is recoverable notwithstanding the other provisions of this Agreement; and
8.3.2 A$10,000.
9 Termination
9.1 WebGenie may terminate this Agreement immediately by written notice to the Reseller if:
9.1.1 the Reseller is or becomes insolvent or subject to any form of insolvency administration or has a receiver appointed over any of its assets; or
9.1.2 the Reseller commits any breach of this Agreement and fails to remedy that breach within 14 days after receipt by the Reseller of a notice from WebGenie identifying the breach and requiring it to be remedied.
9.2 The Reseller shall not be entitled to any compensation upon termination of this Agreement.
9.3 If this Agreement is terminated then, notwithstanding such termination, the Reseller will, at its expense:
9.3.1 immediately cease use of all trade marks, copyright and other material relating to the Software and cease any reference to WebGenie in connection with any marketing or other commercial activity;
9.3.2 return to WebGenie all copies of the Software and all marketing and other materials relating to the Software; and
9.3.3 continue to comply with the obligations of the Reseller specified in this Agreement regarding confidentiality and the protection of the intellectual property rights of WebGenie.
9.4 The Reseller shall indemnify WebGenie and keep WebGenie indemnified against all claims, demands, proceedings, costs and expenses (including legal expenses on a full indemnity basis) incurred by or levied against WebGenie arising from any breach of this Agreement by the Reseller or the negligence of the Reseller or its employees, servants or contractors or arising from any other act or omission of the Reseller, its employees, servants, agents or any third party in connection with the Software.
10 Waiver
Any failure by either party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by one party to the other, will not be construed as a waiver of that party's rights under this Agreement. No right arising under this Agreement shall be deemed to be waived except by notice in writing signed by the party waiving the right.
11 Entire agreement
This Agreement constitutes the entire agreement between the parties regarding the subject matter and all prior arrangements, agreements, representations or undertakings with respect to that subject matter are hereby expressly excluded. Any amendment to this Agreement must be in writing and be signed by the parties.
12 Severability of invalid provision
If any provision of this Agreement is found to be void, invalid or unenforceable, then that provision shall be severed from this Agreement and the balance of this Agreement shall continue to apply with full force and effect.
13 Governing law
This Agreement shall be governed by and construed according to the law for the time being of the State of South Australia and the parties hereby submit to the jurisdiction of the Courts of South Australia in relation to any matter arising under or in connection with this Agreement.
14 Notices
Any notice required to be given under this Agreement may be given by ordinary post or by facsimile transmission. Notices given by facsimile transmission shall be deemed to be received on the date and time applicable at the place of reception when the transmission of the facsimile is completed, provided that any notice sent after 5.00 pm (according to the time zone of the recipient) shall be deemed to be received at 9.00 am on the next business day.
15 Dispute resolution
The parties agree to undertake negotiations and to investigate the use of alternative methods of dispute resolution before commencing legal proceedings in connection with any dispute which may arise in connection with this Agreement.
16 Attachments
The following documents are attached to and form a part of this Agreement:
16.1 The Schedule
16.2 The Reseller Plan
17 Execution
17.1 Each person executing this Agreement on behalf of a party warrants that they are duly authorised by that party to do so.
17.2 Each party may execute a separate copy of this Agreement. If this course is followed, each party shall provide the other party with a true copy of the Agreement as executed by that party. The two executed copies of the Agreement taken together shall be deemed to constitute one Agreement and the Agreement shall be binding in all respects as if both parties executed the same copy of the Agreement.
SIGNED as an agreement.

SIGNED on behalf of )
WebGenie ) (signature).....................................................................
by its duly authorised officer )
in the presence of: (print name)...................................................................

........................................................
(witness signature)

........................................................
(witness name)
........................................................
........................................................
........................................................
(witness address)


SIGNED on behalf of )
the Reseller ) (signature).....................................................................
by its duly authorised officer )
in the presence of: (print name)...................................................................

........................................................
(witness signature)

........................................................
(witness name)
........................................................
........................................................
........................................................
(witness address)


Schedule
Item 1 - Effective Date
[Insert date on which agreement becomes effective] ...............................................................................
Item 2 - The Reseller
[insert full name and address of Reseller] .......................................................................................………………….
...........................................................................................................................................................
...........................................................................................................................................................
...........................................................................................................................................................
Item 4 - Territory [insert description of Territory - "World" if unlimited] .........................................................................
Item 5 - Initial Period [insert initial term of agreement] ....................................................................................

Note - Reseller Plan to be attached - The Reseller Plan may be amended by WebGenie from time to time.