WHEREAS PROVIDER is web-hosting, web design, search engine marketing, application development and marketing clearinghouse.WHEREAS RESELLER (also known as “REFERRING PARTNER”) desires to resell, at commission, web hosting services, more particularly the web hosting plans Silver, Gold, Platinum, henceforth SERVICES, through the PROVIDER for purposes of building the account base for such services to the PROVIDER’s customers, henceforth END USERS.
NOW THEREFORE PROVIDER and RESELLER agree as follows:
1. License. Subject to the terms and conditions of this agreement PROVIDER hereby grants to RESELLER non-exclusive, non-transferable, non-assignable license to re-sell the SERVICES.
2. Territory. Includes, and is limited to, the continental United States of America.
3. Price. 50% commission on all accounts sold at current prices as announced by PROVIDER at PROVIDER’S web site. Promotions, discounts, referral fees, freebies etc. will not be taken in consideration.
4. Payments. Compensation is based on performance. This is not a salaried position. Commission will be paid on a monthly basis. A RESELLER will receive 50% of revenue from the active, current accounts they establish, on the following conditions:
- END USER must have successfully paid for SERVICES for a minimum of two months through the PROVIDER. The first commission payout on a new account will include those two months.
- The tables below have been included as a representative breakdown of possible commissions. Accounts will likely be a combination of SERVICES, so exact commission payouts will vary between Silver, Gold and Platinum rates.
5. No refunds. The fees for the SERVICE are non-refundable, even if RESELLER has to refund collected fees due to fraud, credit card charge backs etc. he is not entitled to refund by PROVIDER. No pro-rate for cancelled, abandoned, unused etc. accounts, regardless of the reason.
6. Cancellations. RESELLER can cancel any account by 14 calendar days advanced notice in writing only to billing [at] dreamscapemultimedia [dot] com. PROVIDER will effectively cancel such account within 14 days after the reception of the cancellation notice. All accounts, which are not effectively cancelled, are considered active and payments are due for such accounts, even if there is a cancellation letter pending. No pro-rate for cancelled accounts.
7. Private label. PROVIDER authorizes RESELLER to use PROVIDER’s private label for the SERVICES by using the PROVIDER’s name and logo in marketing materials and web site(s).
8. Special provision for domain names. RESELLER shall not do anything to give the impression to anyone that RESELLER is itself an ICANN accredited REGISTRAR. If requested by ICANN or other regulations, RESELLER will acknowledge the use of eNom as ICANN accredited Registrar.
9. Marketing. RESELLER will make commercially reasonable efforts to market and promote the services to his target markets. Business cards are available for purchase at RESELLER request.
10. Technical support. RESELLER will provide technical support to the END USERS. PROVIDER will provide technical support to RESELLER.
11. Policies. RESELLER agrees to comply strictly with PROVIDER’S “Acceptable Use Policy” http://www.dreamscapemultimedia.com/acceptable-use-policy and “Web Hosting Services Agreement” http://www.dreamscapemultimedia.com/web-hosting-services-agreement published on the Internet at the above URLs. RESELLER agrees to enforce his END USERS to comply with those policies and make the policies part of his own Service Agreement with END USERS.
12. Notices. Both parties agree that only communication in writing is valid for the matters of this contract. Contact information for RESELLER is provided in the on-line subscription form. Contact information for the PROVIDER is Dreamscape Multimedia, 120 N. Washington Square, Suite 805, Lansing, MI, 48933.
13. Indemnification. RESELLER shall indemnify, defend by counsel reasonably accepted by PROVIDER, protect and hold PROVIDER and its directors, officers, employees, and agents from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants’ and attorneys’ fees and court costs, demands, causes of action, or judgments directly or indirectly arising out of or related to the domain name registration services provided by PROVIDER to the RESELLER.
14. No solicitation. RESELLER agrees not to approach PROVIDER’s employees with proposals to hire them as his own employees or contractors. If RESELLER were to hire any of PROVIDER’s employees, RESELLER agrees to pay PROVIDER for each employee thus hired the greater amount of: one year salary for that employee as RESELLER is to pay such employee, or $100,000.
RESELLER agrees not to approach PROVIDER’s customers with proposals to move them to another hosting provider or provide web design, development or marketing services through another company without PROVIDER’s written consent. If RESELLER were to provide any services already offered by the PROVIDER or its partners, RESELLER agrees to pay PROVIDER for each END USER thus moved the greater amount of: three year’s revenues for that END USER, or $50,000.
15. LIMITED LIABILITY. PROVIDER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF PRIVACY, DAMAGES TO THIRD PARTY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIMS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE. IN NO EVENT SHALL PROVIDER’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY RESELLER FOR THE DISPUTED SERVICE, BUT IN NO EVENT GREATER THAN FIVE HUNDRED DOLLARS ($500.00). PROVIDER’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN STATES WHICH DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
16. No returns. PROVIDER will not return collected fees for SERVICES to RESELLER.
17. Termination. Both parties can terminate this agreement with a 30 days notice. Either party can terminate the agreement immediately for material breach of this contract by the other party. In case of termination for material breach, PROVIDER will continue the SERVICES to END USERS and will support and bill the END USERS directly.
18. Entire Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof, all of which representations, communications, understandings and agreements are hereby canceled to the extent they are not specifically merged herein. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.
19. Modifications. This Reseller Agreement is subject to change, by PROVIDER. PROVIDER will notify RESELLER about such changes. If changes are not acceptable RESELLER will have 15 days to cancel this agreement, otherwise changes will be considered approved by RESELLER.
20. Waiver. Performance of any obligation required of a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
21. Separability. If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed separable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, which shall remain valid and enforceable according to its terms.
22. Governing Law. This Agreement was entered into in the State of Michigan and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of Michigan applicable to contracts entered into and performed entirely within the State of Michigan.
23. Authority to Execute. Each of the parties to this Agreement represents and warrants that it has full power to enter into this Agreement and that it hasn’t assigned, encumbered, or in any manner transferred all or any portion of the claims covered by this Agreement.
24. Benefit of Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and except as otherwise provided herein, their respective legal successors and permitted assigns.
25. Cumulative Remedies. Except as specifically provided herein, no remedy made available to either party hereunder is intended to be exclusive of any other remedy provided hereunder or available at law or in equity.
26. No Partnership or Agency. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, franchise relationship or taxable entity between the parties, nor shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party hereto, it being understood that the parties are independent contractors vis-a-vis one another. Unless otherwise required by applicable law, the PROVIDER shall not withhold from RESELLER’s compensation any amounts for social security or federal or state income taxes. RESELLER recognizes that it is his/her legal responsibility to pay all applicable federal and state income taxes (including estimated taxes), social security, Medicare and all applicable federal and state self-employment taxes.
27. Insurance. While the PROVIDER carries general public liability insurance, this coverage does not extend to contractor positions. The RESELLER understands that they assume all responsibility for maintaining in full force and effect insurance coverage consisting of comprehensive general public liability insurance, automobile, bodily injury, property damage, worker’s compensation, with coverage in amounts and form satisfactory to PROVIDER. Upon PROVIDER ‘s request, RESELLER shall deliver to PROVIDER, certificates of such insurance which stipulate that no less than ten days written notice via Certified Mail shall be given to PROVIDER, prior to termination or changes in the coverage or amounts thereof.
28. No Third Party Beneficiaries. Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than such parties, unless so stated to the contrary.
29. Excused Performances. PROVIDER shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of God, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond PROVIDER’s reasonable control. In the event of any such delay or failure, the parties shall defer performance of the Services to a date and time mutually agreeable.
30. Non-Impairment of Goodwill. During and after the term of this Agreement, RESELLER shall not disparage, in any manner or respect, the PROVIDER or the financial soundness and responsibility, personnel or practices of the PROVIDER’s business.
31. Captions. The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
32. Gender. Where the context so requires, the masculine gender shall include the feminine or neuter, and the singular shall include the plural and the plural the singular.
33. Recitals. The recitals above set forth are incorporated herein by reference.
This policy was last updated on September 9, 2012.