EXCITEDBUSINESS.COM RESELLER AGREEMENT
EXCITEDBUSINESS.COM is the reseller program operated and wholly owned by Bizaim Limited. Room 2201B,22/F.,Ginza Square,565-567 Nathan Road,Kowloon,Hong Kong. This RESELLER Agreement (the "Agreement") is entered into by and between Bizaim Limited (EXCITEDBUSINESS.COM). and you ("RESELLER"). Any reference herein to the "Parties" will be a collective reference to EXCITEDBUSINESS.COM and RESELLER.
BACKGROUND
EXCITEDBUSINESS.COM is an e-marketing application service provider. RESELLER wishes to become a marketing Licensee / Distributor in order to promote various products and services offered by EXCITEDBUSINESS.COM.
In consideration of the covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties, intending to be legally bound, agree as follows:
DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings:
“RESELLER” means any individual or business that has entered into an agreement with EXCITEDBUSINESS.COM pursuant to which EXCITEDBUSINESS.COM compensates the RESELLER for transactions resulting from business directed to the EXCITEDBUSINESS.COM Website by the RESELLER.
“RESELLER Site” means the website operated by RESELLER.
“Customer” means an individual user who submits a Request to or through the RESELLER Site as the sole and direct result of RESELLER's marketing activities under this Agreement.
“EXCITEDBUSINESS.COM Website” means the website operated by EXCITEDBUSINESS.COM, which is located at the URL EXCITEDBUSINESS.COM.
“Hyperlink” means text or images on a web page that a visitor to a website can click on to access or connect to another web page or website.
"Intellectual Property" has the meaning assigned to it in Section 5.1
“Request” means an order or valid inquiry from a Customer generated by RESELLER under this Agreement and delivered or EXCITEDBUSINESS.COM, for a Product or Service provided or performed by a Network Subscriber or EXCITEDBUSINESS.COM, containing the specific information required by the entity to which the Request is delivered.
“Channel” means any sales and marketing channel or network now or later established and maintained by EXCITEDBUSINESS.COM or a corporate partner of EXCITEDBUSINESS.COM
“Network Link” means any Hyperlink and related code that EXCITEDBUSINESS.COM provides to RESELLER for RESELLER to insert into pages on the RESELLER Site to facilitate connection from the RESELLER Site to the EXCITEDBUSINESS.COM Network and to identify RESELLER Leads.
“RESELLER Program” means the program pursuant to which EXCITEDBUSINESS.COM compensates RESELLERs for Requests or Transactions resulting from valid inquiries that EXCITEDBUSINESS.COM receives from the RESELLER and/or Customer whom is referred by RESELLER under a “RESELLER Agreement” or similar agreement.
“On-line Application” means EXCITEDBUSINESS.COM's form of application, accessible only through the EXCITEDBUSINESS.COM Website and/or RESELLER Website, that EXCITEDBUSINESS.COM requires potential RESELLERs to complete before considering them for membership in the RESELLER Program, as amended from time to time.
“Products” means those EXCITEDBUSINESS.COM's products and services delivered from relative production website(s), access to which an RESELLER offers visitors to its website from time to time under this Agreement, as described more fully in Section 2.1 of this Agreement.
“Term” means the term of this Agreement, as set forth in Article 7 of this Agreement.
“Transaction” means a valid inquiry about, or a closed sale of, a product or service that EXCITEDBUSINESS.COM makes to a consumer whose Request was submitted to the EXCITEDBUSINESS.COM via the RESELLER Website pursuant to an “RESELLER Agreement” or similar agreement, or directly to EXCITEDBUSINESS.COM.
1. EFFECTIVE MEMBERSHIP
1.1 Membership. To become an RESELLER, RESELLER must (a) complete, execute and deliver to EXCITEDBUSINESS.COM the On-line Application, and this Agreement, and (b) receive written notification of approval from EXCITEDBUSINESS.COM. EXCITEDBUSINESS.COM may deny RESELLER membership in EXCITEDBUSINESS.COM's RESELLER Program for any reason in EXCITEDBUSINESS.COM's sole and absolute discretion.
1.2 Effective Date. This Agreement will become effective on the date on which EXCITEDBUSINESS.COM notifies RESELLER of approval via email, after having first approved the On-line Application and received this Agreement executed by RESELLER ("Effective Date"). Email notification to RESELLER of approval of RESELLER's On-Line Application shall be deemed execution of this Agreement by EXCITEDBUSINESS.COM.
2. RESELLER MEMBERSHIPS
EXCITEDBUSINESS.COM offers different types of RESELLER Membership. This agreement will apply to all types of current memberships and future new memberships.
2.1 Licensee Membership. RESELLER will own a single license website that can be rebranded with the banner and used with the RESELLER’s domain name.
2.2 Distributor Membership. RESELLER can issue unlimited license websites to Licensees and authorize unlimited Licensees to Distributors.
3. RESELLER RESPONSIBILITY FOR REBRANDED WEBSITE
3.1.1 RESELLER Duties. RESELLER is not allowed to make any modifications to the content, products and services. Posting other information and adding links are prohibited
3.1.2 ensuring the accuracy and appropriateness of banner and materials posted on the RESELLER Site;
3.1.4 ensuring that the banner and materials posted on the RESELLER Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights); and
3.1.5 ensuring that materials posted on the RESELLER Site are not in any way illegal, abusive, libelous, discriminatory, obscene, offensive, fraudulent, deceptive, or misleading.
3.2 Indemnification. RESELLER shall indemnify and hold EXCITEDBUSINESS.COM and its officers, directors, shareholders, RESELLERs, employees, and agents harmless from and against all claims, actions, suits, proceedings, claims, payment disputes, judgments, damages, costs and expenses, including reasonable attorney's Commissions, and other liabilities (collectively “Claims”) arising from or related to (a) RESELLER's breach of any provision of this Agreement; (b) RESELLER's development, operation, or maintenance of RESELLER's business, any RESELLER Site, any other World Wide Web Internet site owned or operated by RESELLER (or which is Hyperlinked to EXCITEDBUSINESS.COM through the RESELLER Site or any other World Wide Web Internet site owned or operated by RESELLER); and (c) RESELLER's negligent or fraudulent acts or omissions.
4. TRACKING AND PAYMENT OF SALES COMMISSIONS
4.1 Tracking of Transactions. Promptly following the Effective Date, EXCITEDBUSINESS.COM will assign RESELLER a RESELLER website. Each time a Customer accesses the RESELLER website and submits a Lead (as described in Section 4.4), EXCITEDBUSINESS.COM will record the RESELLER website and the associated Lead and any related Transaction information.
4.2 Sales Commissions. EXCITEDBUSINESS.COM will pay Commission ("Sales Commissions") to RESELLER for marketing Products, Services and RESELLER Licenses through the RESELLER website, all in accordance with the terms and conditions of this Agreement. EXCITEDBUSINESS.COM shall pay Sales Commissions to RESELLER based solely on the number of Requests or Sales that result in Transactions generated by RESELLER, subject to the limitations of this Article,
4.3 Commission Schedule. EXCITEDBUSINESS.COM shall pay Sales Commissions for valid transactions at the rates and terms specified at EXCITEDBUSINESS.COM.
4.4 No Sales Commissions Due. EXCITEDBUSINESS.COM shall have no obligation to pay RESELLER Sales Commissions relating to a Transaction or Affiliate Registration:
4.4.1 If a Lead or Transaction or Registration arises from a breach by RESELLER of any provision of this Agreement;
4.4.2 If a Transaction or a Registration is generated through a channel other than RESELLER, including without limitation, Transactions that EXCITEDBUSINESS.COM receives from other RESELLERS of EXCITEDBUSINESS.COM and from Customers already in EXCITEDBUSINESS.COM's database prior to receipt of a Lead from RESELLER; or
4.4.3 If a Customer disputes or rejects a Transaction, or a potential RESELLER withdraw a Registration.
4.5 Payment Schedule. EXCITEDBUSINESS.COM will pay Sales Commissions to RESELLER under this Agreement, less any taxes EXCITEDBUSINESS.COM is required to withhold by law, no later than forty-five (45) calendar days following the end of each month for Transactions as to which EXCITEDBUSINESS.COM has actually received monies from the applicable Customers. EXCITEDBUSINESS.COM shall have no obligation to pay a Sales Commission under this Agreement until EXCITEDBUSINESS.COM has received payment from the Customer responsible for the applicable Transaction.
4.6 Payment Method. EXCITEDBUSINESS.COM will pay the Sales Commissions by check, mailed to RESELLER at the address set forth in the On-line Application or such other address that RESELLER provides in accordance with Section 8.12, or transfer the amount of payment directly to the bank account provided by RESELLER under this Agreement signed by both of EXCITEDBUSINESS.COM and RESELLER,
4.7 Disputed Commissions. If a Customer or RESELLER Program Subscriber disputes or rejects a Transaction or Registration and EXCITEDBUSINESS.COM has already paid RESELLER the related Sales Commission and any Fee, EXCITEDBUSINESS.COM is authorized to deduct the amount of the Sales Commission or any Fee relating to the disputed or rejected Transaction or Registration from RESELLER's next monthly payment due under this Article 4. If there are no subsequent Sales Commissions or any Fee due RESELLER, RESELLER shall reimburse EXCITEDBUSINESS.COM the amount of the disputed Sales Commission or any Fee no later than thirty (30) calendar days after receipt of an invoice or demand from EXCITEDBUSINESS.COM.
4.8 Promotional Materials, Creative, Text Links and Banners. In marketing and Hyperlinking to the EXCITEDBUSINESS.COM Website, RESELLER may use only the promotional text, creative design, text links, banners or HTML linking codes for Network Links (“Creative Materials”) posted at EXCITEDBUSINESS.COM Network RESELLER representative must approve any deviation from or alteration to the Creative. RESELLER agrees to use only such Creative as EXCITEDBUSINESS.COM provides.
4.9 Frivolous Data, Incentives, Spam and Falsification. Should EXCITEDBUSINESS.COM in its sole discretion determine that RESELLER is guilty of spamming, providing false account information, falsely enticing Customers to submit Requests, supplying frivolous data, or artificially increasing RESELLER's number of Requests and/or acting or attempting to act in any illegal, false, misleading or deceptive manner, EXCITEDBUSINESS.COM shall have the right to immediately terminate this Agreement for cause, in which case EXCITEDBUSINESS.COM shall have no obligation to pay RESELLER any Sales Commissions and any Fee that might otherwise then be due or payable. RESELLER shall at all times during the Term comply with EXCITEDBUSINESS.COM's Guidelines for Approved Opt-In Email Lists, which are attached to and made a part of this Agreement.
4.10 Effect of Termination on Sales Commissions. Upon termination of this Agreement pursuant to Article 7, EXCITEDBUSINESS.COM shall be obligated to pay RESELLER only those Sales Commissions then due under this Article 4 through the date of Termination. EXCITEDBUSINESS.COM may withhold, for a reasonable time and in its sole and absolute discretion, Sales Commissions EXCITEDBUSINESS.COM believes are disputed Commissions as described in Section 4.6.
4.11 Applicable Tax to RESELLER. All RESELLERs are liable to pay applicable income tax associate to Sales Commissions and any Fees received from EXCITEDBUSINESS.COM, whereas, EXCITEDBUSINESS.COM will not be liable to pay tax applied to each individual RESELLER.
5. LICENSE
5.1 Limited License and Specifications. EXCITEDBUSINESS.COM grants to RESELLER a non-exclusive, fully revocable, royalty-free license for use of EXCITEDBUSINESS.COM’s and EXCITEDBUSINESS.COM’s production websites’ trade names, trademarks, banners, logos and EXCITEDBUSINESS.COM and images, symbols and other intellectual property used in the EXCITEDBUSINESS.COM Network (collectively referred to as "Intellectual Property") and RESELLER’s Website branded by RESELLER and/or the company owned by RESELLER, subject to the restrictions below.
5.2 EXCITEDBUSINESS.COM Approval Procedure. RESELLER shall notify EXCITEDBUSINESS.COM at least ten (10) business days prior to the use of each item of Intellectual Property RESELLER intends to use. EXCITEDBUSINESS.COM shall have the right to inspect and approve or reject each use of the Intellectual Property by RESELLER prior to RESELLER's use. At EXCITEDBUSINESS.COM's request, RESELLER must produce a sample of any Intellectual Property to be used, displayed, or produced, as well as a sample of the RESELLER Site, if any, containing the Intellectual Property.
5.3 RESELLER Recognition of EXCITEDBUSINESS.COM. The EXCITEDBUSINESS.COM Intellectual Property shall remain the exclusive property of EXCITEDBUSINESS.COM. RESELLER will not now or in the future assert any claim to any goodwill, reputation or ownership of any of the Intellectual Property. Nothing in this Agreement endows RESELLER with any right, title or interest in or to the Intellectual Property, beyond the non-exclusive, revocable license described in Section 5.1. RESELLER will use the Intellectual Property only in accordance with the provisions of this Agreement, and will identify the Intellectual Property on RESELLER's web site as property of the owner of each item of Intellectual Property so used or displayed. The license or sub-license for such use automatically will be revoked upon the termination of this Agreement. RESELLER understands that not all intellectual property within the EXCITEDBUSINESS.COM Network is the property of EXCITEDBUSINESS.COM and agrees not to use any other RESELLER’s Intellectual Property without the prior written approval of EXCITEDBUSINESS.COM and the relevant RESELLER.
5.4 Revocation. EXCITEDBUSINESS.COM may revoke the licenses granted under Section 5.1.2 of this Agreement at any time, with or without cause, by providing RESELLER written notice of the revocation. If RESELLER modifies any aspect of the Intellectual Property it receives under or pursuant to this Agreement, EXCITEDBUSINESS.COM may terminate this Agreement without notice at EXCITEDBUSINESS.COM's sole discretion.
6. CUSTOMER POLICIES
6.1 Customers. RESELLER agrees that Customers who submit Requests, inquire about or purchase Products, or enter into Transactions through the rebranded RESELLER website will be deemed to be EXCITEDBUSINESS.COM customers, and that RESELLER shall not state, represent or imply otherwise. RESELLER agrees that Customers will be subject to all rules, policies and operating procedures as established by EXCITEDBUSINESS.COM and posted on the EXCITEDBUSINESS.COM Website from time to time at the privacy of EXCITEDBUSINESS.COM and that RESELLER will neither impose alternative rules, policies and operating procedures on Customers, nor modify EXCITEDBUSINESS.COM's rules, policies and operating procedures as posted on the EXCITEDBUSINESS.COM Website. EXCITEDBUSINESS.COM may modify the rules, policies and operating procedures at any time.
7. TERM AND TERMINATION
7.1.1 Either Party may terminate this Agreement at any time, with or without cause. In addition, RESELLER may terminate this Agreement if RESELLER timely rejects a Proposed Modification (as defined in Section 8.1). Any such termination shall be effected by providing written notice of termination to the other party and will be deemed effective on the date written notice of it is given.
7.1.2 Cancellation and Refund Policy of account termination
There's no penalty for cancellation of the Reseller account and terminate this agreement. There’s no refund for any payments
.
7.1.3 All EXCITEDBUSINESS.COM Resellers must pay the Monthly Management fee to maintain their Reseller Licenses and have rights and access to all services.
7.2 All Resellers recognize that Management Fee will be billed every month continuously to maintain the Reseller account unless that Reseller submits cancellation of the account to EXCITEDBUSINESS.COM 3 days before the next billing date. There's no refund and all payments are final.
7.3 Resellers may cancel their account at any time by submitting a cancellation request to support@ExcitedBusiness.com with the user ID name and the registered email address. An email verification will be sent to the reseller's registered email address for the final confirmation of the cancellation.
7.4 If Resellers failed to pay or unsubscribe the monthly management fee from the payment gateway, their account will be cancelled within 7 days unless they reactivate and pay the monthly management fee again. There's no refund for previous payments.
7.5 Within 90 days of the account cancellation, the Reseller may still apply for reactivation of the account and pay US$250 for the activation fee. After 90 days of the account cancellation, the Reseller account will be terminated permanently.
7.6 Termination for Cause by EXCITEDBUSINESS.COM. Notwithstanding any provision in this Agreement to the contrary, EXCITEDBUSINESS.COM may terminate this Agreement at any time and without notice upon the occurrence of any of any of the relevant events described elsewhere in the agreement or any of the following events:
7.6.1 A material breach by RESELLER of any provision in this Agreement, including, without limitation, the terms of the license described in Article 5.
7.6.2 Any willful misconduct, misuse by RESELLER of the EXCITEDBUSINESS.COM Website or the RESELLER website, or any use of the EXCITEDBUSINESS.COM Website or RESELLER website for purposes that are inconsistent with those permitted under or contemplated by this Agreement, including without limitation the operation of any illegal business or activity through RESELLER's website or business.
762.3 Any introduction by RESELLER of any computer virus, disabling code, time bomb, trap door, or similarly destructive program, information, command or code (collectively, “Virus”) into the EXCITEDBUSINESS.COM Website or the RESELLER website or any software or systems related thereto.
7.6.4 Any RESELLER activity that causes the EXCITEDBUSINESS.COM Website, the RESELLER website or any Network Subscriber's website or computer system to malfunction or any failure to make changes recommended by EXCITEDBUSINESS.COM deemed necessary to correct malfunctions.
7.6.5 Any other action of RESELLER, whether intentional or unintentional, that has the purpose or effect of damaging the EXCITEDBUSINESS.COM Website, the Network, or any Network Subscriber's website or computer system, or causing any of them to malfunction or the purpose or effect of reflecting adversely on the goodwill and/or reputation of EXCITEDBUSINESS.COM, the Network or any Network Subscriber as determined in the sole judgment of EXCITEDBUSINESS.COM.
7.6.6 Any material violation by RESELLER, in the reasonable discretion of EXCITEDBUSINESS.COM, of any applicable law or regulation.
7.3 Obligations. Except as expressly provided in this Agreement, termination of this Agreement will not relieve either Party of obligations incurred during the Term.
8. GENERAL TERMS
8.1 Modification. EXCITEDBUSINESS.COM may periodically post any proposed modifications to this Agreement (“Proposed Modifications”) at EXCITEDBUSINESS.COM. RESELLER will be notified of proposed changes via email and will be given 30 days in which to accept the Proposed Modifications. RESELLER agrees to review the Proposed Modifications, if any, within 30 days after EXCITEDBUSINESS.COM transmits notification of the Proposed Modifications (the “Notice Period”). Unless RESELLER terminates this Agreement before expiration of the Notice Period in accordance with Section 7.6, RESELLER will be deemed to have agreed to the Proposed Modifications effective as of the first day of the month immediately following the end of the 30 day notice period. In addition, EXCITEDBUSINESS.COM reserves the right to add, discontinue or change any of the Products covered by this Agreement upon giving RESELLER notice at least five business days prior to the effective date of the addition, discontinuance or change.
8.2 Relationship of the Parties. Each Party is acting as an independent contractor under this Agreement. Neither this Agreement nor the relationships contemplated under this Agreement are intended to or will be deemed to result in an agency, Affiliate, joint venture, franchise, sales representative or employment relationship with the other Party. RESELLER shall have no authority to enter into any agreements, or make any warranties or representations, on behalf of EXCITEDBUSINESS.COM.
8.3 Non-Circumvention. RESELLER agrees, during the Term and any Automatic Renewal Term, and for a period of at least 30 days thereafter (the “Restricted Period”), neither RESELLER nor any of its shareholders, directors, officers, employees, RESELLERs, agents, representatives, successor and assigns will enter into any business transaction or enter into any contract with any Network Subscriber pursuant to which the Network Subscriber will provide RESELLER access to products or services offered or marketed by EXCITEDBUSINESS.COM or through the Network without prior written consent from EXCITEDBUSINESS.COM, which consent EXCITEDBUSINESS.COM may withhold in its sole and absolute discretion.
8.4 Limitation of Liability. RESELLER ACKNOWLEDGES THAT IT IS AWARE THAT THERE ARE SUBSTANTIVE RISKS, INCLUDING BUT NOT LIMITED TO LOSS AND CORRUPTION OF DATA, DELAYS, NONDELIVERIES, MISDELIVERIES AND SERVICE INTERRUPTION ASSOCIATED WITH RECEPTION, TRANSMISSION, STORAGE, MANIPULATION AND OTHER USES OF DATA OVER THE INTERNET. IN NO EVENT WILL EXCITEDBUSINESS.COM BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT EXCITEDBUSINESS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES FURTHER AGREE THAT EXCITEDBUSINESS.COM'S AGGREGATE MONETARY LIABILITY ARISING OUT OF THIS AGREEMENT WILL NEVER EXCEED THE TOTAL SALES COMMISSIONS PAID OR PAYABLE TO RESELLER PURSUANT TO THIS AGREEMENT DURING THE AGREEMENT PERIOD IMMEDIATELY PRECEDING THE DATE ANY SUCH ALLEGED LIABILITY OCCURS.
8.5 Disclaimers of Warranties. EXCITEDBUSINESS.COM EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE RESELLER PROGRAM AND THE PRODUCTS SOLD THROUGH THE RESELLER PROGRAM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES AGREE THAT NO IMPLIED WARRANTIES HAVE ARISEN DUE TO COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. RESELLER AGREES THAT EXCITEDBUSINESS.COM HAS MADE NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE OPERATION OF EXCITEDBUSINESS.COM, AND THAT EXCITEDBUSINESS.COM WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY LOSS SUFFERED BY RESELLER OR ANY CUSTOMER AS A RESULT OF USING EXCITEDBUSINESS.COM, THE NETWORK OR ANY NETWORK SUBSCRIBER SITE, INCLUDING BUT NOT LIMITED TO DATA LOSS AND/OR OTHER LOSSES RESULTING FROM DELAYS, OPERATION ERROR OR INTERRUPTION, IMPROPER OR INCOMPLETE DELIVERY OF INFORMATION, POSSIBLE COMPUTER VIRUSES, INTERFERENCE OF SERVICE OR OTHERWISE, REGARDLESS OF CAUSE.
8.6 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter and supersedes all prior agreements, writings, commitments, discussions and understandings between them.
8.7 Severability/Waiver. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. No delay, omission, or failure to exercise any right or remedy provided for in this Agreement will be deemed to be a waiver thereof or an acquiescence in the event giving rise to such remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the Party exercising such right or remedy.
8.8 Confidentiality. RESELLER agrees not to disclose the terms and conditions of this Agreement to anyone without the prior written approval of EXCITEDBUSINESS.COM.
8.9 Assignment. This Agreement and/or the respective rights and obligations arising out of this Agreement cannot be assigned or transferred by RESELLER under any circumstances, including, but not limited to, by court order, operation of law, merger, statute, regulation, ordinance, or otherwise, without EXCITEDBUSINESS.COM's prior express written consent, which consent EXCITEDBUSINESS.COM may withhold in its sole and absolute discretion. Any attempt to assign this Agreement in violation of this Section 8.9 will be null and void. In the event of a permissible assignment, this Agreement will be binding on, inure to the benefit of, and enforceable against the Parties and their respective successors and assigns.
8.10 Injunctive Relief. RESELLER agrees that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement including but not limited to Article 5. Accordingly, if RESELLER breaches or threatens to breach any of RESELLER's obligations, EXCITEDBUSINESS.COM will be entitled, without showing or proving any actual damage sustained, to a temporary restraining order, and will thereafter be entitled to apply for a preliminary injunction, permanent injunction and/or order compelling specific performance, to prevent the breach of RESELLER's obligations under this Agreement. Nothing in this Agreement will be interpreted as prohibiting EXCITEDBUSINESS.COM from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.
8.11 Governing Law/Jurisdiction. This Agreement will be governed by and construed under the laws of Hong Kong, without reference to principles of conflict of laws, and any action, including, but not limited to litigation, brought by the Parties to enforce or interpret any provision of this Agreement will be brought in an appropriate provincial court in Hong Kong. RESELLER hereby consents to jurisdiction in such venue and expressly waives any objection to same.
8.12 Notice. Any notice required or permitted by this Agreement will be in writing (which includes electronic) and shall be sent by (i) prepaid registered or certified mail, return receipt requested, (ii)courier, (iii) facsimile or (iv) email, in each case addressed to the other Party at the appropriate address shown on the signature page of this Agreement or at such other address for which such Party gives notice hereunder. Except as set forth in Section 7.1, notice given by mail will be deemed to be effective only upon receipt during normal business hours and or notice given by facsimile or email will be effective only upon receipt during normal business hours. If notice is given after normal business hours by facsimilie or email, it will be deemed received as of the start of the next business day.
8.13 Survival. The provisions of Sections 3.1, 3.2, 5.3 and Article 8 will survive the Termination of this Agreement.
8.14 Incorporation. Documents attached hereto or referred to in this Agreement (including web pages at specified URLs) are an integral part of this Agreement and are intended by the Parties to be incorporated into this Agreement and be binding on the Parties.
8.15 Miscellaneous. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. This Agreement will be construed within its fair meaning and no inference will be drawn against the drafting party in interpreting this Agreement.
8.16 Acknowledgment. By clicking on an "Accept" or similar button on the EXCITEDBUSINESS.COM Website following this Agreement, or by manually executing this Agreement, RESELLER acknowledges and agrees that RESELLER has thoroughly read, accepted and agrees to be bound by the terms of this Agreement. RESELLER confirms that RESELLER has independently evaluated and weighed the risks and benefits of participating in the RESELLER Program, and has agreed to all the terms of this Agreement without reliance on any representation, guarantee or statement existing outside of this Agreement.
8.17 Incentive Program By subscribing the RESELLER membership, You understand and agree that you are personally responsible for your behavior on the website and enroll Top Seller Awards Incentive.. You agree to indemnify, defend and hold harmless EXCITEDBUSINESS.COM, its affiliates, licensors, employees, and agents from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, indirect, incidental, consequential, and/or exemplary damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, or inability to use the Website or the Content, or any violation by you of TOP SELLER AWARDS Incentive's Terms and Conditions.
Guidelines for Approved Opt-In Email Lists
Prior to starting each and any type of new email, enewsletter, or other form of marketing campaign via the Network, RESELLER MUST complete and send an EMAIL APPROVAL FORM to EXCITEDBUSINESS.COM. Until RESELLER has been notified that RESELLER's request to email is approved, RESELLER agrees not to conduct any type of emailing via the Network.
SPAMMING (any form of emailing for a commercial purpose that is unsolicited) IS NOT PERMITTED. If RESELLER spams, EXCITEDBUSINESS.COM reserves the right at any time and without notice to disable RESELLER's Hyperlink to EXCITEDBUSINESS.COM and the RESELLER webiste. To prevent this from happening, EXCITEDBUSINESS.COM has instituted an Anti-Spam Policy that sets forth the minimum standards EXCITEDBUSINESS.COM requires its Marketing RESELLERs to adhere to in light of current laws, rules and regulations governing the transmission of e-mail and the best practices in the industry. In the event any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of the Agreement, setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Marketing RESELLERs, notwithstanding anything to the contrary set forth in this Anti-Spam Policy. Any emails, enewsletters, or other forms of marketing campaigns by RESELLER MUST be "permission" or "opt-in" based and meet the following standards to prevent RESELLER's account from being labeled as "SPAM".
1) RESELLER may distribute emails solely to those persons who have actively opted-in to receive the email. The content of each email shall include (a) RESELLER's correct point-of-origin email address, transmission information and routing information, (b) clear, prominent opt-out instructions in the email and in the first line of the text, if required by applicable law; (c) a toll-free telephone number or valid email address at which recipient may contact RESELLER to file complaints and/or opt-out; (d) accurate information regarding the manner in which the recipient opted-in to receive the email and (e) the identifier and any disclaimers that EXCITEDBUSINESS.COM assigned to the email. RESELLER shall not, without EXCITEDBUSINESS.COM's prior written approval, include any redirect links or frames in an email. Without limiting the generality of the foregoing, in no event may RESELLER forge email header information or otherwise engage in false or misleading conduct.
2) RESELLER shall (a) make adequate disclosures as required by law to those on its email list(s) regarding RESELLER's email and Privacy and Security Policies; (b) respond to all complaints within one (1) business day after RESELLER becomes aware of the complaint, (c) provide EXCITEDBUSINESS.COM with a copy of every complaint, immediately upon RESELLER's receipt thereof, (d) implement any corrective action EXCITEDBUSINESS.COM may require and (e) comply with any legal and/or other requirements EXCITEDBUSINESS.COM may reasonably specify.
3) RESELLER must provide a simple method for subscribers to the emails to opt-out of their subscriptions with clear and effective instructions for unsubscribing. As such, emailing from a list must cease promptly once a subscription is terminated.
4) RESELLER must provide a manual opt-out procedure (e.g., an email address to which messages may be sent for further contact via email or telephone) available for those who wish to terminate their subscriptions but are unable or unwilling to follow standard automated procedures.
5) RESELLER must ensure that the impact of its email is minimized by proper list management procedures such as pruning of invalid or undeliverable addresses.
6) RESELLER must take adequate steps to ensure that its lists are not used for abusive purposes such as emailing malicious emails or chain letters or not being in compliance with the Children's Online Privacy Protection Act (COPPA).
7) RESELLER must not email to an unsubscribe list. As such, RESELLER should maintain a "suppression list" of email addresses from which all subscription requests are rejected to prevent subscription of addresses appearing on the suppression list by unauthorized third parties.
8) RESELLER shall examine the terms and conditions under which the email addresses on all third party lists were originally compiled to ensure that all recipients have in fact opted-in to the type of mailing list RESELLER intends to operate. RESELLER shall ensure that all third party lists used by or on behalf of RESELLER were collected by the third party source in accordance with the same standards listed above and must create a new emailing list when there is a substantive change in either the subject matter or frequency of messages. A notification about the new emailing list may be appropriate on the existing emailing list, but existing subscribers should never be subscribed automatically to the new list. For example, if Company A acquires Company B, and Company B has compiled opt-in mailing lists, Company A should not summarily incorporate Company B's mailing lists into its own.
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