This Reseller Agreement (the “Agreement”) sets forth the terms and conditions on which you (the “Reseller”) will act as a reseller of certain services of $99 Social (the “Company”). This is a legally binding agreement between you and $99 Social. By registering as a $99 Social reseller, you agree to be legally bound by the terms and conditions set forth in this Agreement. The “Effective Date” of this Agreement shall be the date on which you submit your electronic signature at the bottom of this Agreement.
1. Appointment and Authority
1.1 Subject to the terms and conditions of this Agreement, Company appoints Reseller to be a non-exclusive Reseller for the purpose of encouraging the sale of the Company Services set forth in service documents provided to Reseller from time to time (the “Services”). Company may update the list of Services, or otherwise amend Services, in its sole discretion, from time to time, effective upon notice to Reseller. For purposes of amending Service offerings, notice to Reseller via email shall be deemed sufficient.
1.2 Reseller’s sole authority shall be to perform the tasks listed herein pursuant to the terms and conditions of this Agreement. Reseller does not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Company, nor shall Company be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Reseller, except as specifically authorized under this Agreement or in writing by Company.
1.3 Except for the limited rights expressly granted herein by Company to Reseller, nothing in this Agreement shall serve to transfer to Reseller any intellectual property rights in or to the Services, Company Marks or other intellectual property owned or claimed by Company. Reseller acknowledges and agrees that Company has sole right, title and interest in and to the Services, Company Marks, and all Company intellectual property and rights therein and thereto. Reseller will promptly inform Company of any known or reasonably suspected infringement or misappropriation of Company’s trademarks, copyrights or other intellectual property rights.
2. Reseller Obligations
2.1 Reseller will complete the Company Reseller registration process in a true and accurate manner. Furthermore, Reseller will periodically update such contact information as necessary so that such information is, at all times, true and accurate.
2.2 Reseller shall use his/her best efforts to market and solicit orders for the Services.
2.3 Reseller will inform Company of each customer obtained by Reseller according to the procedure outlined by Company and communicated in separate documents and web pages outlining the process. Company reserves the right to accept or reject, in its sole discretion, any customers obtained by Reseller.
2.4 Reseller will conduct all of its activities hereunder in an honest, legal, ethical, businesslike and professional manner. Reseller will abide by the policies and procedures of Company in effect from time to time.
2.5 Reseller will not make any warranty or guarantee concerning the Services, and Reseller will not make any representations or statements regarding the Services other than those contained in Company’s most current marketing literature and promotional materials.
2.6 Reseller will not engage in any type of multi-level marketing program related to Company or its Services without prior written agreement from Company.
3. Company Obligations
3.1 Company will provide the Services to Reseller and Reseller’s customers signed up with Company through Reseller, provided Reseller is in full compliance with all of the terms and conditions of this Agreement.
3.2 Company will provide Services to customers in accordance with Company’s standard policies and procedures. Company reserves the right to reject customers that do not comply with any requirements that Company periodically may establish or for any other reason, in Company’s sole discretion. Company will be responsible for all aspects of providing the Services. All Company rules, policies and operating procedures concerning privacy, pricing, customer service, and all other aspects of the Services will apply, and Company may change its rules, policies and operating procedures from time to time at its sole discretion.
4 Fees and Payment
4.1 Reseller shall be responsible for all costs and expenses it incurs in connection with the implementation and performance of its obligations under this Agreement.
4.2 Setup fees and fees for Services provided to Reseller and Reseller’s customers are due and payable in full, in advance of provision of Services.
4.3 Reseller will initiate a sale on behalf of his or her customer by completing the Reseller order process on the Company website. Payments are automatically recurring on a month-to-month basis. If a payment method is declined or rejected for any reason, Services will immediately be suspended. Suspension of Services for non-payment will not result in a proration of fees.
4.4 Except in the case of a material breach of this agreement by Company, Company does not issue refunds of any fees for any reason.
5. Independent Contractors
5.1 Company and Reseller are independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, or (ii) constitute the parties as partners, joint venturers, co-owners or the like. All financial and other obligations associated with Reseller’s business are Reseller’s sole responsibility.
5.2 Reseller agrees that it will not be treated as an employee of Company for federal, state or local tax purposes, including but not limited to unemployment compensation or workers’ compensation taxes, or for any other purpose. Reseller is solely responsible for any and all taxes, whether federal, state or local, which may be applicable to its business.
5.3 Reseller has neither the express nor any implied authority to accept orders from customers on behalf of Company nor to enter into or modify contracts, whether oral or written, on behalf of Company. Reseller shall not represent that its products or services are affiliated with or endorsed by Company, without Company’s prior written approval.
All information obtained by either party to this Agreement from the other, in connection with its activities hereunder, including all technical, pricing, marketing, business and other information that each party provides the other or that either party receives from the other shall be treated by the receiving party as confidential and proprietary information of the disclosing party. Receiving party will not use any such information for its own benefit or for any purpose other than fulfilling its obligations under this Agreement and shall not disclose such information to any third party except with disclosing party’s prior written consent.
7. Non-Solicitation Covenant
Company agrees that during the term of this Agreement and for twelve (12) months after the termination thereof, it will not, directly or indirectly, solicit or attempt to solicit any business from any of the Reseller’s Customers or Customer Prospects for whom Company performed work, unless written authorization is obtained from Reseller.
8. Warranty; Warranty Disclaimers
8.1 Reseller and its representative executing this Agreement represent and warrant that (i) it has the right, power and authority to enter into this Agreement and to fully perform its obligations under this Agreement; and (ii) the entering into and performance of this Agreement by Reseller does not violate, conflict with, or result in a material default under any other contract or agreement to which Reseller is a party, or by which it is bound.
8.2 COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING OR RELATED TO THIS AGREEMENT, THE SERVICES OR ANY MATERIALS OR ASSISTANCE PROVIDED TO RESELLER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, COURSE OF PERFORMANCE OR DEALING, TRADE PRACTICE, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Reseller will indemnify and hold harmless Company and its customers, suppliers, directors, officers, contractors, agents and employees from and against any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or relating to any breach by Resellers of any of the terms of this Agreement.
10. Limitation of Liability
COMPANY SHALL NOT BE LIABLE TO RESELLER OR ANY ENTITY OR PERSON CLAIMING THROUGH OR UNDER RESELLER FOR ANY LOSS OF PROFIT OR INCOME OR OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN AN ACTION FOR CONTRACT OR TORT, IN CONNECTION WITH THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY TO RESELLER HEREUNDER EXCEED THE AMOUNT PAID TO COMPANY BY RESELLER FOR THE PREVIOUS ONE (1) MONTH OF SERVICES FOR ANY SINGLE CUSTOMER. THIS LIMIT IS CUMULATIVE AND THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THE LIMIT. RESELLER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND IN THEIR ABSENCE THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
11. Term and Termination
11.1 This Agreement will begin on the Effective Date and continue until terminated pursuant to the terms herein. This Agreement may be terminated by either party for convenience upon 30 days written notice. In the event of a material breach not cured within 10 days of written notice of breach to the breaching party, this Agreement may be terminated immediately upon written notice of termination to the breaching party.
11.2 Upon termination of this Agreement for any reason: (i) Reseller will immediately cease use of all Company confidential and proprietary information, all Company Services provided hereunder, and all Company Marks and marketing materials; (ii) Reseller will immediately return to Company all confidential and proprietary information, brochures, literature, documentation and other materials within its control without retaining any copies thereof. Neither party will be liable to the other for any termination of this Agreement in accordance with its terms. Sections 5 through 11 herein shall survive termination of the Agreement.
This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof. Except as otherwise expressly set forth herein, this Agreement may be amended only in a writing signed by the parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns; provided however, that Reseller may not assign this Agreement, in whole or in part, without Company’s prior written consent and any assignment by Reseller without such consent shall be null and void. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Arizona without regard to its rules pertaining to conflict of laws. Any litigation or dispute resolution related to this Agreement shall take place in Maricopa County, Arizona, and the parties hereby consent to the jurisdiction of the state and federal courts located therein. Except as otherwise expressly set forth herein, any notice required or permitted to be given under this Agreement shall be sufficient if in writing, in the English language, and sent via U.S. Certified Mail, return receipt requested. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, that provision will be severed only to the extent minimally necessary, and the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.