DigitalSignage.com Reseller Membership Agreement
“Definitions” on the DigitalSignage.com Site apply to the words used in this agreement.
“External Documents” on the DigitalSignage.com Site apply to this agreement.
1.Purpose: The purpose of this Agreement is to record the terms and conditions of Reseller Membership.
2.Acceptance: The Parties accept these terms and conditions on the Acceptance Date.
3.Debit Card Fee Schedule: The Debit Card Fee Schedule applies to this agreement and shall not be altered without Acceptance by the Parties, the Accredited Corporate Member [if applicable] and the EzyAffiliate [if applicable] PROVIDED ALWAYS that DigitalSignage.com has absolute discretion to alter the Debit Card Fee Schedule without further notice to the Reseller Member, Accredited Corporate Member [if applicable] and the Ezyaffiliate [if applicable].
4.Conditions Precedent: This agreement is conditional upon acceptance by DigitalSignage.com of the Visitor as a Reseller Member as evidenced by Registration AND acceptance by the Parties, the Accredited Corporate Member [if applicable] and the EzyAffiliate [if applicable], of the Debit Card Fee Schedule.
5.Appointment:
5.1During the Term, DigitalSignage.com appoints the Reseller Member on a non-exclusive basis for purposes of (i) identifying Visitors that might have an interest in DigitalSignage.com Services, (ii) introducing DigitalSignage.com Services to such Visitors, (iii) helping to develop solicitation materials for such Visitors and (iv) performing the services of a Reseller Member which are set forth in Exhibit “A” hereto. Reseller Member acknowledges that DigitalSignage.com may have previously entered into, or may hereafter enter into, Reseller Membership Agreements with other Visitors including, without limitation, agreements for similar services in other jurisdictions around the globe.
5.2The relationship of the Parties shall be that of independent contractors. Reseller Member shall be solely responsible for its own expenses required in the performance of its responsibilities under this Agreement. Reseller Member does not have the authority or power to enter into any contract or commitment in the name of, or on behalf of, DigitalSignage.com without the written acceptance of DigitalSignage.com. Reseller Member will not make representations about DigitalSignage.com Services or business practices, except to the extent such representations appear in written materials authorized by a Responsible Officer of DigitalSignage.com. Reseller Member will only use such sales materials describing DigitalSignage.com Services and/or business practices as may be furnished by DigitalSignage.com to Reseller Member from time to time or developed by Reseller Member and approved, in writing, by DigitalSignage.com.
5.3Reseller Member shall conduct its business when representing DigitalSignage.com in a manner that reflects favourably at all times on DigitalSignage.com and its DigitalSignage.com Services and shall avoid any deceptive, misleading or unethical practice or advertising. Reseller Member shall comply with all applicable laws, including without limitation the United States Foreign Corrupt Practices Act.
5.4Reseller Member shall provide such other additional information as DigitalSignage.com shall reasonably request, when representing Visitors for DigitalSignage.com. Reseller Member shall fully consult with DigitalSignage.com and provide verbal or written reports to DigitalSignage.com regarding Reseller Members progress, as requested by DigitalSignage.com from time-to-time.
5.5 Reseller Member will take primary responsibility for supplying Visitors with any DigitalSignage.com Services materials as may be requested or required by Visitors. All such materials must be approved, in writing, prior to being used by any Visitor.
5.6 Reseller Member may be assisted by third Persons in performing its services pursuant to this Agreement; provided that each such Person executes a written confidentiality agreement with DigitalSignage.com in form approved by DigitalSignage.com and agrees to abide by the limitations set for Reseller Members in this Agreement. As between DigitalSignage.com and Reseller Member, Reseller Member is responsible for all fees and costs payable to such Person(s) and Reseller Member indemnifies DigitalSignage.com and its affiliates from such liability.
5.7 DigitalSignage.com reserves the right, in its sole and unfettered discretion, to change its DigitalSignage.com Services and shall notify Reseller Member as to any such changes.
6.Revenue Sharing & Payments:
6.1 As full and complete compensation to Reseller Member for all of Reseller Member’s efforts on DigitalSignage.com behalf, DigitalSignage.com will pay Reseller Member the Commissions set forth on the Debit Card Fee Schedule. Such Commissions shall be paid to Reseller Member during the Term of this Agreement.
6.2Commissions to Reseller Member will be paid by the DigitalSignage.com Services in any currency, in the discretion of DigitalSignage.com. Such payments, if full and complete, to Reseller Member shall fully discharge DigitalSignage.com obligations to Reseller Member and any Persons assisting Reseller Member. As between DigitalSignage.com and Reseller Member, Reseller Member will be solely responsible for any compensation due to any Person assisting Reseller Member. Payments will be made no later than thirty (30) days after the end of the calendar month in which DigitalSignage.com has received payment of any Gross Revenues derived from Tagged Members which Reseller Member originated and served. DigitalSignage.com shall furnish to Reseller Member an accounting for all Commissions within thirty (30) days following the month for which each such accounting applies.
7.Indemnification:
A Party (the “Indemnifying Party”) shall indemnify, defend, and hold the other party and its officers, directors, and employees or affiliates (an “Indemnified Party”) harmless from and against any and all claims, demands, actions, losses, damages, assessments, charges, liabilities, costs and expenses (including attorney’s fees) (“Claims”) which may at any time be suffered or incurred by or be asserted against an Indemnified Party, on account of or in connection with: (1) the marketing, advertising, sales and promotional activities of the Indemnifying Party with respect to a Retailer, and (2) failure of the Indemnifying Party to comply with the laws, rules, and regulations of any applicable jurisdiction. Notwithstanding anything to the contrary in item (1): (i) DigitalSignage.com is the Indemnifying Party only as to Claims arising from materials provided by DigitalSignage.com which are properly used in all material respects, and (ii) DigitalSignage.com is the Indemnifying Party only as to Claims arising from representations authorized by a Responsible Officer which are properly made in all material respects. The Indemnifying Party’s obligations hereunder are conditioned upon: (i) it being given prompt written notice by the Indemnified Party of any such Claims, and (ii) full cooperation from the Indemnified Party with respect to defence of the Claim. DigitalSignage.com shall have the authority to control and direct the investigation, defence, and settlement of any Claim, provided that if DigitalSignage.com is the Indemnified Party, it may permit Reseller Member to control and direct the investigation at Reseller Member’s cost.
8.Confidentiality:
By signing this Agreement, Reseller Member, it’s affiliates, representatives and all associated agencies and individuals, agrees to hold all information in confidence for the Term of this Agreement and for a period of one (1) year after Termination. This includes, but is not limited to, the details of this Agreement, proprietary information or other information that may be communicated to Reseller Member during the course of doing normal business. This Confidentiality clause does not apply to information which is or becomes public domain, is required in order to comply with legal entities or that has been proven to have already been known by Reseller Member.
9.Representations and Warranties:
Each party hereto represents to the other that: (i) it has the requisite corporate power and authority to execute, deliver and enter into, and perform its obligations under this Agreement; (ii) it has taken or caused to be taken all necessary corporate action to authorize the execution, delivery, and performance of this Agreement; (iii) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms; (iv) its signatories hereto have full authority to sign on its behalf; and (v) neither the execution nor performance hereof by such party violates or will violate any agreement, understanding, law, regulation, court order or other legally binding document or action.
10.Intellectual Property:
Reseller Member agrees that DigitalSignage.com Services (i) is proprietary to DigitalSignage.com, (ii) shall remain the sole property of DigitalSignage.com and (iii) Reseller Member shall have no ownership interest therein. As between DigitalSignage.com and Reseller Member, any enhancements to or evolution of any technology proprietary to DigitalSignage.com (whether developed by DigitalSignage.com, by Reseller Member, by both, or otherwise), shall be the sole property of DigitalSignage.com. Reseller Member acknowledges the breach by Reseller Member of this Section 10 or the Confidentiality Agreement would cause DigitalSignage.com irreparable harm and that in addition to any other remedies DigitalSignage.com has under this Agreement, DigitalSignage.com shall have the right to injunctive or any other equitable relief under the laws of each and every jurisdiction in the world and that such right is the only exception to the exclusive means of resolving disputes described hereof.
11.Term and Termination: This Agreement continues until either Party terminates the agreement upon the expiration of thirty (30) days by giving at least seven (7) days written notice to the other party. The termination of this Agreement shall not affect any provision of this Agreement which by its wording or nature is intended to remain effective and to continue to operate in the event of termination of this Agreement, and shall not prejudice or affect the rights of either Party against the other in respect of any breach of the terms and conditions of this Agreement.
12.Miscellaneous:
12.1Assignment. Reseller Member shall not have the power or right to or delegate its duties under this Agreement to a third Person without the prior written consent of DigitalSignage.com.
Notices and payments to Reseller Member shall be given to the address set forth opposite Reseller Member’s name on the signature page hereof.
12.2Governing Law; Consent to Jurisdiction and Service. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES CREATED HEREBY SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE JURISDICTION WITHOUT REGARD TO THE CONFLICT OF LAW AND CHOICE OF LAW PROVISIONS THEREOF. EACH PARTY AGREES TO SUBMIT TO THE JURISDICTION AND AGREES THAT VENUE IS PROPER FOR ANY LEGAL ACTION OR PROCEEDING. THE PARTIES AGREE THAT SERVICE BY OVERNIGHT EXPRESS MAIL SHALL SATISFY THE REQUIREMENTS OF PERSONAL SERVICE.
12.3Severability of Provisions. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable or invalid in whole or in part for any reason, such provision shall be adjusted rather than voided, if possible to achieve the intent of the parties to the extent possible, and in any event the validity and enforceability of the remaining sections shall not be affected unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.
12.4Third Party Beneficiaries and Liability. Except as described in this Agreement, no third Person is a beneficiary of this Agreement, nor shall any third Person have any liability with respect to the performance by any Person to this Agreement.
12.5Arbitration. The sole method for resolving any controversy or claim arising out of or relating to this Agreement and/or Reseller Members relationship with DigitalSignage.com, is binding arbitration in the Jurisdiction.
12.6No Presumption Against Any Party. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved using any presumption against any party hereto. Each party acknowledges that this Agreement has been reviewed by its legal counsel and, in the case of any ambiguity or uncertainty, shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intention of the parties hereto.
12.7Independent Parties. It is expressly understood and agreed that nothing in this Agreement shall in any way be construed to make the parties hereto partners, parties to any joint venture or agents for one another.
12.8Counterparts. This Agreement may be executed in any number of counterparts, including without limitation executed counterparts forwarded by facsimile transmission, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
12.9Entire Agreement. There are no representations, warranties or other agreements between the Parties (whether express or implied) in connection with the subject matter hereof except as specifically set forth herein. The Parties acknowledge that they have not been induced into this Agreement by any condition, representation, or warranty not set forth in this Agreement. Without limiting the foregoing, Reseller Member acknowledges that it is not relying on any representation regarding the amount of Commission, if any, Reseller Member may earn pursuant to this Agreement. The Parties acknowledge their intent that the written documents which form this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof; that such documents supercede all prior or contemporaneous proposals, negotiation, understandings, and other communications (oral and written) between the Parties with respect to the subject matter hereof; and that such documents contain all the material elements of the bargain which is the subject matter hereof.
12.10Amendment. DigitalSignage.com reserves the right to amend the terms and conditions of this Agreement, if there is an applicable change or amendment to a (local) statutory regulation, local and international banking regulation and/or currency restriction from local and/or central banks which mandates such change applies to the Reseller Member. DigitalSignage.com shall inform the Reseller Member in writing of such changes or amendments at least seven (7) days before the new changes or amendments become effective.
Exhibit “A”
Reseller Member Agreement
By execution of this Agreement, Reseller Member agrees to satisfy the following conditions and perform the following services for each Visitor for which any Commission may be applicable and recognizes that no Commission will be payable to Reseller Member unless these services are satisfactorily performed:
1.Reseller Member shall pay promptly and in full for all cards and or materials ordered by Reseller Member. Terms for all purchases are detailed on the Pricing & Order Forms supplied by DigitalSignage.com from time to time. Prices may be revised, from time to time, as may be required due to changing product or network costs. Reseller Member will be notified, in writing, of such changes.
2.Reseller Member will carefully follow, and determine that any applicable Visitor is also following, the procedures for issuing and servicing card accounts as established by DigitalSignage.com from time to time, including maintenance of all required tracking records for maintaining the applicable cards in a secure environment.
3.Reseller Member agrees that it will not participate in the marketing of any products which are competitive with the DigitalSignage.com Services during the Term or for any period thereafter while Commissions are being paid under this Agreement.
4.Reseller Member acknowledges that the issuing bank owns all cards, at all times, and may, at its sole discretion, cancel or recall and requires the destruction of any or all cards within the program.
5.DigitalSignage.com reserves the right to modify (increase or decrease) the reseller or referral monthly subscription price at any time. Prices may very without notice.
6.DigitalSignage.com reserves the right to deny, cancel or stop service to any reseller or referral subscribing to the DigitalSignage.com reseller program
7.DigitalSignage.com reserves the right to cancel reseller or referral subscribing to the DigitalSignage.com reseller program due to lack of payment or late payment to DigitalSignage.com.
8.Reseller Member acknowledges and agrees that the card network provider, as printed on each card, may change or modify its requirements and Reseller Member agrees to abide by those requirements.
9.All sales and collateral materials must be approved by DigitalSignage.com prior to being distributed or used by Reseller Member. This includes, but is not limited to, websites, written sales materials, Point-of-Sales materials.
