1. Enrollment
in the Reseller Program/Content Restrictions
To begin the
enrollment process, you will need to review the terms of the agreement and
indicate your acceptance of these terms by clicking "I Agree" at the
bottom of the page. Once you have agreed to the terms, you will be linked to
our Reseller Application. After you submit a complete Reseller Application
via our site, we will evaluate your application in good faith and notify you of
your acceptance or rejection in a timely manner. We may reject your application
if we determine (in our sole discretion) that your site is unsuitable for the
Program for any reason, including, harmful, threatening, defamatory, obscene,
sexually explicit harassing, or racially, ethically, or otherwise
objectionable, such as sites that:
2. Promotion of our Reseller relationship
As an Reseller site, we will make available
to you a variety of graphic and textual links (each of these links referred to
herein as "Links" or, individually, as a "Link") which,
subject to the terms and conditions hereof, you may display on relevant areas
of your site. These Links are available through our skyreport.net site. The
Links will serve to identify your site as a member of our Program and will
establish a Link from your site to ours.
3. Our responsibilities
We will be responsible for providing all
information necessary to allow you to make appropriate Links from your site to
our site, however, all Links must be approved in writing by us. We will be
solely responsible for processing orders placed on our site by a customer
following a Link from your site, tracking the volume and amount of sales
generated by your site, and providing information to Reseller sites regarding
sales statistics. We reserve the right to reject orders. We will be responsible
for order entry, payment processing, shipping, cancellations, returns, and
customer service related to our site.
4. Other responsibilities for Reseller sites
In utilizing the Links, you agree that you
will cooperate fully with us in order to establish and maintain such Links. In
order to permit accurate tracking and reporting, you will be responsible for
ensuring that the Links between our site and yours are properly formatted.
If you qualify and agree to participate as an
Reseller site in our Program, you shall display Links prominently in relevant
areas of your site subject to any and all limitations herein and with our
consent. In addition, you shall not display links next to, above or below or
otherwise in close proximity to any other Internet Service Provider. As an Reseller site in the Program, you are
entitled to earn commissions as set forth below.
COMMISION SCHEDULE
Qualifying Members
|
Qualifying Members |
Commission Rate |
|
0-10 |
5% |
|
10-99 |
15% |
|
100+ |
20% |
We have the right based on our sole
discretion to monitor your site at any time to determine if you are in
compliance with the terms of this Agreement.
You must maintain minimum monthly traffic
through your site of 5,000 impressions.
You agree that the Links will in no way
affect or alter the look, feel, or functionality of our site. Without limiting
the generality of the foregoing, you are expressly prohibited from framing our
site in any manner, including without limitation causing your site's tool bar
to appear on our site. You shall not alter, modify, or expand the Links in any
way without our express prior written consent.
5. Commission determination
Sales of Sky Web services will qualify for a
commission when all of the following conditions are met: 1) service is sold by
us, 2) service is purchased by users linking to our site from your site through
a Link, 3) service is handled by us, and 4) Sky Web has received full payment.
Commission will be based on the aggregate amount actually paid to us for
qualifying purchases, excluding amounts collected by Sky Web for sales tax,
duties, shipping and handling, credit card fraud and bad debt. All available items on our site will be
included in the computation of net sales.
Commission rates are as follows: Commission rate will be equal to 5% of
net sales for first 10 qualifying members.
Commission rate will increase to 15% for all qualifying members between
10 and 99. Commission rates will
increase again to 20% for all qualifying members above 100. The commissions
paid under this Agreement are for use by you only and may not be transferred or
in any manner passed on to any third party unless expressly authorized in
writing by us.
6. Commission payment
When the total commissions due to you (based
on qualifications listed in section 5) exceed $100, we will send a commission
check for the applicable amount, less any taxes required, and a statement of
activity to you. Commission checks and statements of activity will be sent
approximately 30 days after the date of sale. If the balance of your account is
less than $100, we will roll over the balance to the next month.
7. Reports of sales
You will be able to check your sales
statistics monthly through our Reseller site located at skyreport.net. This
site is password protected, and you will be given a password. All information
available at skyreport.net, including sales statistics, is our confidential
information and is protected under paragraph 17 herein.
8. Policies and pricing
Customers purchasing Sky Web services through
the Program will be deemed our customers. All rules, policies, terms, and
conditions and operating procedures concerning customers will apply to those
customers. We may change our policies and operating procedures, including
pricing, at any time. We solely will determine the prices to be charged for Sky
Web services under the Program in accordance with our own pricing policies. You
may not include price information on your site unless pricing information is
made available on links we provide in skyreport.net. Prices and availability of
Sky Web services may vary from time to time. We will use commercially reasonable
efforts to present accurate information, but we cannot guarantee the
availability or price of any particular product.
9. Publicity/Use of our Name
You cannot create, publish, distribute, or
permit any material that makes reference to us or uses our name or any of our
trademarks without first submitting such material to us and receiving our
written consent.
10. Licenses and use of the Sky Web logos and trademarks
a. We grant you a non-exclusive,
non-transferable, revocable right to 1) access our site through the Links
solely in accordance with the terms of this Agreement and 2) to use our marks
and logos only in the forms that they appear on our reporting.net site (the
"Marks") (or such other images or messages for which we granted prior
express written permission, hereafter "Pre-approved Images") solely
in connection with such Links and only as permitted herein. You may not alter,
modify, or change the Marks or Pre-approved Images or message in any way. You
are only entitled to use the Marks to the extent that you are a member in good
standing of the Program.
b. You cannot make any use of any Marks or
any Pre-approved Images for purposes other than Links without first submitting
a sample to us and obtaining our prior written consent. You agree that you will
not in any way dispute, or do anything to impair the validity of our rights in
our Marks, our ownership and right to use and control the use of our Marks. You
further agree that all use of our Marks by you shall inure to our benefit of
and on behalf of us and agree that nothing in this Agreement shall give you any
right, title or interest in our Marks other than to use the Marks in connection
with this Agreement. You agree not to use the Marks in any manner that is
disparaging or that otherwise portrays us in a negative light. We may revoke
your license at any time by giving you written notice. This license shall
terminate upon the effective date of the expiration or termination of this
Agreement.
c. You grant us a non-exclusive license to
utilize your names, titles, and logos ("Reseller Marks") to
advertise, market, promote, and/or publicize in any manner, provided however
that we shall not be required to do so. This license shall terminate upon the
effective date of the expiration or termination of this Agreement.
11. Obligations regarding your site You will be solely responsible for
the development, operation, and maintenance of your site and for all materials
that appear on your site. Such responsibilities include, but are not limited
to, the technical operation of your site and all related equipment; the
accuracy and propriety of materials posted on your site (including but not
limited to, all Sky Web service related materials); ensuring that materials
posted on your site do not violate or infringe upon the rights of any third
party and are not libelous or otherwise illegal.
We disclaim all liability for all such
matters. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses including, but not limited to attorneys' fees, relating
to the development, operation, maintenance, and contents of your site.
You hereby agree that your site will not, in
any way, copy or resemble the look and feel of our site nor will you do
anything to create the impression that your site is our site or a part of our
site, including without limitation, framing our site in any manner. You also
hereby agree that your site will not contain any content of our site or any
materials which are proprietary to Sky Web, except 1) with our prior permission
or 2) the materials were obtained by you via the skyreport.net site in
accordance with the provisions hereof or the policies or instructions thereon.
12. Term of the Agreement
The term of this Agreement will begin upon
our acceptance of your Reseller program application and will end immediately
when terminated by either party. Either party may terminate this agreement at
any time, with or without cause, by giving the other party written notice of
termination. If we terminate this Agreement or notify you of a breach by you,
you shall be required to remove all Links within one (1) hour of receipt of
notice. You are only eligible to earn commission on sales incurring during the
term, and commissions earned through the date of termination will remain
payable only if the related Sky Web services are not cancelled or returned. We
may withhold your final payment for a reasonable time to ensure that the
correct amount is paid.
13. Modification
We reserve the right to modify any terms and
conditions contained in this Agreement at any time. You will be notified by
email and a change notice will be posted on our site. Modifications may
include, but are not limited to, changes of the scope of available commissions,
commission schedules, payment procedures, and Reseller program rules. If any
modification is unacceptable to you, your only recourse and sole remedy is to
terminate this Agreement. Your continued participation in the Reseller program
following our posting of a change notice or new agreement on our site will
constitute your binding acceptance of the change.
14. Relationship of Parties
The parties to this Agreement are independent
contractors, and nothing in this agreement will create any partnership, joint
venture, agency, franchise, sales representative, or employment relationship
between the parties. You will have no authority to make or accept any offers or
representations on our behalf. You will not make any statement, whether on your
site or otherwise, that reasonably would contradict anything in this section.
15. Disclaimers
We make no express or implied warranties or
representations with respect to the Reseller program or any Sky Web services
sold through the Reseller program (including without limitation, warranties of
fitness, merchantability, non-infringement, or any implied warranties arising
out of course of performance, dealing, or trade usage). In addition, we make no
representation that the operation of our site will be uninterrupted or error
free, and we will not be liable for the consequences of any interruptions or
errors.
16. Representations and warranties
You hereby represent and warrant to us as
follows:
You will use the Links only as authorized
hereunder.
This agreement has been duly and validly
executed and delivered by you and constitutes your legal, valid, and binding
obligation, enforceable against you in accordance with its terms.
The execution, delivery, and your performance
of this Agreement, and your consummation of the transactions contemplated
hereby will not, with or without notice, lapse of time, or both, conflict or
violate 1) any provision of law, rule, or regulation to which you are subject,
2) any provision of your by-laws or certificate of incorporation, or 3) any
Agreement or other instrument applicable to you or binding upon your assets or
properties.
You are the sole and exclusive owner of the
Reseller Marks and have the right and power to grant us the license to use
your trademarks in the manner contemplated herein, and such grant does not and will
not 1) breach, conflict with, or constitute a default under any agreement or
other instrument applicable to you or binding upon your assets or properties,
or 2) infringe upon any trademark, trade name, service mark, copyright, or
other proprietary right of any other person or entity.
No consent, approval, or authorization of,
exemption by, or filing with any governmental authority or third party is
required in connection with the execution, delivery, and performance of this
Agreement or any other action taken by you.
To the best of your knowledge there is no
pending threatened claim, action, or proceeding against you, or any Reseller
of yours with respect to the execution, delivery, or consummation of this
Agreement, or the Reseller Marks. To the best of your knowledge, there is no
basis for any such claim, action, or proceeding.
You are an adult of at least 18 years of age.
17. Confidentiality
Each of the parties hereto agrees that all
information including, without limitation, the terms of this Agreement,
business and financial information, product designs, customer and vendor lists;
and pricing and sales information, concerning us, you, or any of our Resellers
shall remain strictly confidential and secret. Such information shall not be
utilized, directly or indirectly by such party for its own business purposes or
for any other purpose except and solely to the extent that any such information
is generally known or available to the public through a source or sources other
than such party hereto or its Resellers. Notwithstanding the foregoing, each
party is hereby authorized to deliver a copy of any such information 1) to any
person pursuant to a subpoena issued by any court or administrative agency, 2)
to its accountants, attorney, or other agents on a confidential basis, and 3)
otherwise as required by applicable law, rule, regulation, or legal process.
18. Limitation of liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL,
OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR REVENUE, PROFITS, OR DATA, ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE Reseller PROGRAM, EVEN IF WE HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY
ARISING WITH RESPECT TO THIS AGREEMENT AND THE Reseller PROGRAM WILL NOT
EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
19. Indemnification
You hereby agree to indemnify and hold
harmless us and our subsidiaries and Resellers, and their directors, officers,
employees, agents, shareholders, partners, members, and other owners, against
any and all claims, actions, demands, liabilities, losses, damages, judgements,
settlements, costs, and expenses (including reasonable attorneys' fees (any or
all of the foregoing hereinafter referred to as "losses") insofar as
such losses, or actions in respect thereof, arise out of or are based on 1) any
claim that our use of the Reseller Marks infringes on any trademark, trade
name, service mark, copyright, license, intellectual property, or other
proprietary right of any third party, 2) any failure or breach of any
representation, warranty, covenant, or agreement made by you herein, 3) any
misuse of our name or trademarks, or 4) any claim related to your site,
including, without limitation, content therein not attributable to us.
20. Independent investigation
You acknowledge that you have read this
Agreement and agree to all its terms and conditions. You understand that we may
at any time (directly or indirectly) solicit customer referrals on terms that
may differ from those contained in this agreement or operate websites that are
similar to or compete with your web site. You have independently evaluated the
desirability of participating in the Reseller program and are not relying on
any representation, guarantee, or statement other than as set forth in this
agreement.
21. Governing law
This agreement will be governed by the laws
of the United States and the State of New Jersey, without reference to rules
governing choice of laws. Any action relating to this Agreement must be brought
in federal or state courts located in New Jersey, and you irrevocably consent
to the venue and jurisdiction of such courts. You may not assign this agreement,
by operation of law or otherwise, without our prior written consent, however,
we shall have the right to assign our rights hereunder to any of our related
or Reseller entities. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of, and enforceable against the parties and
their respective successors and assigns. Our failure to enforce your strict
performance of any provision of this Agreement will not constitute a waiver
of our right or subsequently enforce such a provision or any other provision
of this Agreement.