MERCHANT MEMBER PROGRAM AGREEMENT v3.0
[Last updated: August 27th, 2012]
This Agreement (“Agreement”), by and between ResellerRatings.com, belonging to the Answers TM
group of companies ("ResellerRatings.com"), and Participating Merchant ("Merchant") is entered into,
(i) following your indication of acceptance of, and agreement with, all of the terms and conditions set
forth herein ("Acceptance") by subscribing to the Merchant Member Program on the webpage where
this Agreement appears at http://www.resellerratings.com/forum/payments.php, or by your verbal
or written authorization by phone or email to ResellerRatings.com to manually subscribe you to the
Merchant Member Program, and (ii) upon ResellerRatings.com’s acceptance and confirmation of you as
a member of the Merchant Member Program (”Confirmation”).
As used in this Agreement, the following terms shall have the following respective meanings:
- (a) "Acceptance" has the meaning set forth in the first paragraph of this Agreement;
- (b) “Claim” has the meaning set forth in Section 7(a) hereof;
- (c) "Confidential Information" has the meaning set forth in Section 10(a) hereof;
- (d) “Confirmation” has the meaning set forth in the first paragraph of this Agreement;
- (e) "Disclosing Party" has the meaning set forth in Section 10(a) hereof;
- (f) "HTML Advertisement" means a Merchant Member Program sales package option commonly known as the Reviews Page HTML Advertisement, consisting of a 750 pixel wide by 75 pixel tall advertising spot on Merchant's reviews page;
- (g) "Licensed Property" means the demographic, survey, and reviews data, made available by ResellerRatings.com as part of its Merchant Member Program;
- (h) "Logo Advertisement" means a Merchant Member Program sales package option commonly known as the Homepage 125x50 Logo Advertisement, consisting of a 125 pixel wide by 50 pixel tall advertising spot on the ResellerRatings.com homepage;
- (i) "Merchant" or "you" (and in the possessive form, "your") means the corporation, limited liability company, partnership, other business entity or individual (i) named in, and provided as part of, the registration form for the ResellerRatings.com Merchant Member Program and (ii) accepted by ResellerRatings.com as a member of its Merchant Member Program;
- (j) "Merchant Member Program" has the meaning of and shall refer to access provided by ResellerRatings.com to restricted content and services, as administered by ResellerRatings.com and/or its agents or representatives;
- (k) "Payment" means the financial compensation payable to ResellerRatings.com by or on behalf of Merchant for monthly access to the Merchant Member Program;
- (l) "Receiving Party" has the meaning set forth in Section 10 hereof;
- (m) “Released Party” has the meaning set forth in Section 7 hereof;
- (n) “ResellerRatings.com” has the meaning set forth in the first paragraph of this Agreement;
- (o) “ResellerRatings.com Intellectual Property” has the meaning set forth in Section 5 hereof;
- (p) “ResellerRatings.com Marks” has the meaning set forth in Section 5 hereof;
- (q) “Web site” means the ResellerRatings.com Web site accessible via the URL www.resellerratings.com.
2. ENROLLMENT IN THE MERCHANT MEMBER PROGRAM
- (a) To begin the enrollment process in the Merchant Member Program, you must submit a complete subscription order application via the Web site. ResellerRatings.com will evaluate your application and upon approval will notify you in a timely manner.
- (b) Upon Confirmation, ResellerRatings.com will make available to you, via an electronic mail address, as specified by you in your application, password information to allow access to the Merchant Member Program.
3. CERTAIN RESELLERRATINGS.COM OBLIGATIONS
- (a) ResellerRatings.com will make available to Merchant access to various tools, as described at merchant-solutions.
- (b) ResellerRatings.com will continually update such tools and features as new tools and features are developed.
4. CERTAIN MERCHANT OBLIGATIONS
- (a) Merchant shall be responsible for payment of the mutually agreed upon monthly or annual fee for access to the Merchant Member Program. Failure to pay the fee may result in immediate termination of this Agreement. The monthly rate for the Merchant Member Program is made known to Merchant at the time of Payment, and ResellerRatings.com reserves the right to increase Merchant's monthly rate at any time and at ResellerRatings.com's sole discretion, upon 30 days notice by email.
- (b) Merchant shall be responsible for abiding by the Terms of Service of the Web site and shall be responsible for abiding by the terms of this Agreement.
- (c) Merchant agrees that the HTML Advertisement, if included in Merchant's sales package, shall not consist of more than 50 kilobytes of data, including all graphics and HTML source code, and shall not contain any code intended to redirect a user's web browser from one webpage to another.
- (d) Merchant agrees that the Logo Advertisement, if included in Merchant's sales package, shall not consist of more than 5 kilobytes of data, and shall be a static, non-animated GIF or JPG image featuring Merchant's logo. Merchant understands that the Logo Advertisement will be rotated with logo advertisements from other paying advertisers and the Logo Advertisement shall therefore not be shown on every page view.
5. LICENSES; PROPRIETARY RIGHTS
- (a) Subject to the terms and conditions of this Agreement, ResellerRatings.com hereby grants Merchant a revocable, nontransferable, royalty-free license, solely as contemplated in this Agreement, to the Licensed Property, for the purposes of commercial research and review;
- (b) Merchant shall not challenge the validity of, or attempt to create any derivative works from any of the Licensed Property. Merchant acknowledges that it has no proprietary rights in any ResellerRatings.com brand names, trade names, trade dress or any trademarks (collectively, "ResellerRatings.com Marks"), or any copyrighted content, or any other intellectual property belonging to or licensed by ResellerRatings.com (collectively with the ResellerRatings.com Marks, " ResellerRatings.com Intellectual Property"), and Merchant shall not challenge ResellerRatings.com's proprietary rights in or to any of the ResellerRatings.com Intellectual Property. Merchant acknowledges that all uses of ResellerRatings.com Intellectual Property, and all goodwill associated therewith, shall inure solely to the benefit of ResellerRatings.com.
- (c) The license to the Licensed Property, granted under this Agreement, shall be revoked upon termination of this Agreement, and Merchant shall immediately destroy all Licensed Property, and promptly certify in writing such destruction to ResellerRatings.com, upon request.
6. REPRESENTATIONS AND WARRANTIES
- (a) ResellerRatings.com represents and warrants to Merchant as follows: ResellerRatings.com has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby; and its entry into this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action. Upon Confirmation, following your Acceptance, this Agreement will be deemed to have been duly executed and delivered by ResellerRatings.com.
- (b) Merchant represents and warrants to ResellerRatings.com as follows: Merchant has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby; and its entry into this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other relevant action. Upon Confirmation, following your Acceptance, this Agreement will be deemed to have been duly executed and delivered by you, and is a valid and binding obligation of Merchant.
- (a) Merchant agrees to indemnify, hold harmless, and defend ResellerRatings.com, its subsidiaries, affiliates, or any related companies (including those which share substantially common ownership), and its officers, directors, employees, agents, insurers, and representatives of any of them (each, a “Released Party”, and collectively, the "Released Parties") from any and all claims, demands, actions, causes of action, suits, sums of money, judgments, controversies, and liabilities whatsoever, at law or in equity, arising from or in any way resulting from (i) Merchant's use of this Web site, and (ii) Merchant's use of or participation in the Merchant Member Program (in each case, a “Claim”).
- (b) To the extent it is aware of a third party claim, ResellerRatings.com shall inform Merchant of any person making or presenting a claim hereunder and shall provide Merchant with: (i) reasonably prompt notice of the relevant Claim; provided, however, that failure to provide such notice shall not relieve Merchant from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure, (ii) reasonable cooperation, at Merchant's expense, in the defense of such Claim. ResellerRatings.com shall be deemed to have informed Merchant by contacting Merchant at the contact information provided in Merchant's application for the Merchant Member Program.
- (c) Any Released Party shall have the right to control the defense and settlement of any such Claim; provided, however, that a Released Party shall not, without the prior written approval of Merchant, settle or dispose of any Claim in any manner that adversely affects Merchant's rights or interests, which approval shall not be unreasonably withheld.
- (a) Merchant shall not commit fraud or falsify information in any manner whatsoever in connection with the Merchant Member Program, including, without limitation, by (i) submitting fraudulent or inaccurate reviews of products to the Web site, (ii) falsely denying the existence of a valid point-of-sale or other transaction reviewed in the Web site, (iii) using the Merchant Member Program to harass or threaten reviewers, or (iv) any other non-truthful use of the Merchant Member Program.
- (b) Merchant shall be liable to ResellerRatings.com for any and all damages that ResellerRatings.com suffers as a result of any such actions. Further, in connection with any such actions, ResellerRatings.com expressly reserves the right to pursue all causes of action in connection with such fraudulent activity to the extent permissible under applicable law.
9. TERM; TERMINATION
- (a) The term of this Agreement shall commence upon Confirmation and shall continue from month to month until terminated by either ResellerRatings.com or Merchant in accordance with the terms hereof.
- (b) This Agreement may be terminated by the parties as follows: (i) By ResellerRatings.com, immediately upon notice by ResellerRatings.com to Merchant if it determines, in its sole discretion, that Merchant has breached the provisions of this Agreement; (ii) By either party if the other party breaches any material term or condition of this Agreement and such breach is not cured within five (5) days after written notice from the non-breaching party; or (iii) By either party, without cause, upon ten (10) days' prior written notice.
- (c) Pursuant to the provisions of this Section, Merchant agrees to provide notice of cancellation to ResellerRatings.com on or before the 25th day of the current 30 day billing cycle. Failure to do so will result in Merchant being charged for the following month. Merchant accepts that no full or partial refunds will be issued.
- (a) Each party acknowledges that it may be furnished Confidential Information pursuant to this Agreement. “Confidential Information” is information which when shared is either marked as such, or information which by its nature could reasonably be expected by a party to this Agreement to be kept in confidence by the other party. As a condition to being furnished Confidential Information, the party receiving the Confidential Information (“Receiving Party”): (i) will keep the Confidential Information of the party disclosing its Confidential Information (“Disclosing Party”) confidential and will not (except as required by applicable law, regulation or legal or judicial process, and only after compliance with subsection (c) below), without the Disclosing Party's prior written consent, disclose any of the Disclosing Party's Confidential Information in any manner whatsoever and (ii) will use such Confidential Information solely in connection with its performance of its obligations under this Agreement and shall make no use of any such Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or in order to obtain any competitive benefit with respect to the Disclosing Party. The Receiving Party shall make all necessary and appropriate efforts to safeguard the Receiving Party's Confidential Information from disclosure to anyone other than as permitted hereby.
- (b) The term "Confidential Information" will not, however, include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party hereto, (ii) was available to a party hereto on a nonconfidential basis prior to its disclosure to the Receiving Party, (iii) becomes available to the Receiving Party on a nonconfidential basis from a source (other than in connection with this Agreement) which, to the best knowledge of the Receiving Party, after due inquiry, is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation or (iv) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information.
- (c) Confidential Information shall remain the property of the Disclosing Party thereof.
- (d) Merchant agrees that any information received under this Premium Content Agreement shall be used only for research purposes and shall not be used for purposes not supported by this Agreement.
11. LIMITATION OF LIABILITY
- (a) RESELLERRATINGS.COM SHALL NOT BE LIABLE TO MERCHANT FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR PENALTIES (EVEN IF RESELLERRATINGS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS.
- (b) THE PARTIES AGREE THAT RESELLERRATINGS.COM SHALL IN NO CASE BE FOUND LIABLE FOR DAMAGES IN AN AMOUNT EXCEEDING MONIES RECEIVED FROM MERCHANT OVER THE COURSE OF THE PERFORMANCE OF THIS AGREEMENT.
- (c) RESELLERRATINGS.COM SHALL NOT BE LIABLE TO MERCHANT FOR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSSES OF BUSINESS REVENUE OR ANTICIPATED PROFITS, ARISING OUT OF THE CONTENT OF ANY USER REVIEW OR ANY USER POSTING WHICH HAS EVER BEEN POSTED TO THE WEB SITE, INCLUDING BUT NOT LIMITED TO ANY USER REVIEW OR USER POSTING WHICH CONTAINS SLANDEROUS, DEFAMATORY, LIBELOUS, ILLEGAL, FALSE, INACCURATE, THREATENING, OR MISLEADING STATEMENTS.
12. DISCLAIMER OR WARRANTIES
ALL INFORMATION PRESENTED ON THIS WEB SITE IS "AS IS". RESELLERRATINGS.COM MAKES NO WARRANTIES OTHER THAN THE LIMITED WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT. MERCHANT WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO (A) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (B) WARRANTIES AS TO THE QUALITY OR PERFORMANCE OF THE MATERIALS, INFORMATION, GOODS, SERVICES, TECHNOLOGY AND/OR EDITORIAL CONTENT PROVIDED UNDER THIS AGREEMENT AND (C) WARRANTIES AS TO THE PERFORMANCE OR FAILURE OF SYSTEMS, SOFTWARE, HARDWARE OR TELECOMMUNICATIONS.
- (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
- (b) This Agreement (including the documents and Web site pages referred to herein) constitutes the entire agreement, and supersedes all prior agreements, both oral and written, between the parties with respect to the subject matter of this Agreement.
- (c) All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by documented overnight delivery service, sent by email (if to ResellerRatings.com, to firstname.lastname@example.org and if to Merchant, to the email address supplied by Merchant as part of its application for the Merchant Member Program) or by U.S. certified or registered mail, return receipt requested, to the appropriate address for a party set forth below (or at such other address for a party as shall be specified by like notice):
If to ResellerRatings.com:
By email: email@example.com
By postal mail:
6665 Delmar, Suite #3000
St. Louis, MO 63130
If to Merchant:
To the address, physical or email, as specified by Merchant as part of its registration for the Merchant Member Program
- (d) Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part by Merchant without the prior written consent of ResellerRatings.com. This Agreement and any of the rights, interests or obligations hereunder may be assigned, in whole or in part by ResellerRatings.com without the prior written consent of Merchant.
- (e) The headings contained in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or interpretation of this Agreement.
- (f) ResellerRatings.com may modify or amend any of the terms or conditions contained in this Agreement at any time. Upon the occurrence of any material modification or amendment, ResellerRatings.com will notify you. If the modification or amendment is unacceptable to you, your sole recourse shall be to terminate this Agreement in accordance with the provisions hereof. Your continued participation in the Merchant Member Program for a period of ten (10) business days following the receipt of any such notice will be deemed to constitute Merchant's binding acceptance of such modification or amendment.
- (g) The failure of any party hereto to comply with any representation, warranty, covenant or agreement contained in this Agreement may be waived only by a written instrument signed by the party granting such waiver. No failure by a party to take any action with respect to any breach of this Agreement or default by the other party shall constitute a waiver of such party's right to enforce any provision hereof or to take any such action. The waiver by any party hereto of a breach of any provision hereunder shall not operate as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
- (h) Any provision hereof which is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without affecting in any way the remaining provisions hereof.
- (i) Merchant agrees that in the event a dispute arises concerning its use of resellerratings.com, or any other program or service offered by ResellerRatings.com, that such dispute shall be resolved via an arbitration process. Unless the parties specifically agree otherwise in writing, such arbitration shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Further, Merchant agrees that any such arbitration shall be settled on an individual basis, and unless the parties agree otherwise in writing shall not be consolidated in any arbitration or suit with any claim or controversy of another party. Merchant agrees that all arbitration proceedings will be conducted in San Francisco, CA., and further agrees that any interim or preliminary relief sought shall be brought exclusively in a court of competent jurisdiction in the County of San Francisco, CA.
- (j) The relationship of the parties to this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Neither party shall take any actions that would suggest to any third party that the relationship between the parties is anything other than that of independent contractors.
- (k) Neither party shall be liable for, have the right to terminate this Agreement or claim damages as a result of the other party's failure or delay in performance due to circumstances beyond such party's reasonable control (except for the nonpayment of money), including but not limited to labor disputes, strikes, lockouts, shortages or inability to obtain energy, war, riots, insurrection, epidemics, earthquakes, fires, acts of God, governmental action, third party network or telecommunications failures and third party internet "brownouts."
- (l) ResellerRatings.com operates the Web site from its offices in the United States of America and makes no representation or warranty that its content or use is legal in any other location. Access or use where illegal is prohibited. Merchant is responsible for compliance with applicable local laws. Merchant represents and warrants that it will refrain from taking any actions that contravene any such laws. If Merchant is an individual, Merchant represents and warrants that he or she is at least 18 years of age.
- (m) ResellerRatings.com reserves the right to refuse to display any HTML Advertisement or Logo Advertisement which is libelous, scandalous, obscene, vulgar, or otherwise deemed unsuitable for placement upon the Web site. Such determination shall be made according to the sole discretion and judgment of ResellerRatings.com.
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6665 Delmar, Suite #3000
St. Louis, MO 63130
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