WELCOME to the REFERRAL DEALER AGREEMENT Terms and Conditions. These Terms and Conditions add to, and are a part of, the __________________REFERRAL DEALER AGREEMENT (the Agreement”) that you have received and will SIGN to enroll in the MobileHelp referral network. These Terms and Conditions contain important information for understanding your rights and obligations under the REFERRAL DEALER AGREEMENT. By executing the REFERRAL DEALER AGREEMENT, you (the Referral Dealer”) signify that you have read and agree to these:
TERMS AND CONDITIONS:
1. OBLIGATIONS OF REFERRAL DEALER
1.1 Promotion of Products. Referral Dealer will use its best efforts to promote, market and distribute the Products. In furtherance of, but without limiting the foregoing, Referral Dealer agrees to:
(i) diligently solicit orders for the Products from End-Users through their channel(s);
(ii) obtain written approval from MobileHelp in advance of distribution or publication for any promotional literature developed by Referral Dealer to ensure accuracy of information and Trademarks as per the Agreement.
(iii) obtain approval from MobileHelp in advance before implementing marketing campaigns to ensure we are not competing for the same customer in the same media property.
1.2 Expenses. Referral Dealer will pay all expenses incurred by it in connection with its business and will be solely responsible for the acts and expenses of its employees, representatives and agents. Referral Dealer agrees that it shall incur no expense chargeable to MobileHelp unless specifically authorized in advance in writing in each case by MobileHelp. Referral Dealer represents and warrants that it has not been induced to incur any expenses in connection with Products or in reliance upon this Agreement and shall not incur any such expenses for which MobileHelp shall be liable.
1.3 Sales Commitment. While there is no minimum number of sales to continue to be a part of the MobileHelp referral network, the Referral Dealer commits to promoting the MobileHelp Products each month.
1.4 Training. If requested by MobileHelp, to better understand and promote the MobileHelp Products and Services, MobileHelp will provide training by webinar or telephone and Referral Dealer will use its best efforts to complete training provided by MobileHelp within thirty (30) days of the date of request.
2. MAINTENANCE AND SUPPORT. MobileHelp is solely responsible, at its sole cost and expense, for support and training of the End-User in connection with the Products. Support includes but is not limited to any installation and troubleshooting of the Products including telephony or wi-fi connections, connections to call center, and basic use of the Products. Installation of the Products consists of a three (3) step “Set-up Process:” SP1, SP2 and SP3. SP1 is gathering and entering all of the subscriber’s personal information; SP2 is walking the customer through the installation and testing process; and SP3 is verifying the End-Users home on the map and placing the home icon on the correct location.
3. PROMOTIONAL LITERATURE. Electronic copies of MobileHelp’s marketing and promotional materials, related to the Referral Dealer, will be provided by MobileHelp. The Referral Dealer is granted a temporary license to print and distribute these materials to its clients, as part of promoting the MobileHelp Products and Services to the End-Users. This license shall expire upon the termination of this Agreement, or in ten (10) years, whichever shall first occur.
4. PRICES. The Prices for the MobileHelp Products and Services will be set from time-to-time by MobileHelp and are subject to change at any time. Prices may be posted to the MobileHelp website, or disclosed to Referral Dealer, upon request. Prices are quoted exclusive of all government excise, sales, use or similar taxes, shipping, duty and customs charges.
5. TRADEMARKS AND TRADE NAMES
5.1 Use of Trademarks and Trade Names. Referral Dealer shall conduct its business under its own name. All use of MobileHelp’s trademarks (whether registered or unregistered) shall inure solely to the benefit of MobileHelp. Referral Dealer may use and display the trademarks of MobileHelp to identify and market the Products only (i) on business cards and stationery of Referral Dealer indicating it is an authorized Referral Dealer for MobileHelp and (ii) on the marketing materials approved by MobileHelp. In each case, Referral Dealer shall comply with MobileHelp’s trademark guidelines. No other use of MobileHelp’s trademarks or trade names, or any part thereof, or any mark or name confusingly similar thereto, is authorized without the prior written consent of MobileHelp. Referral Dealer shall not register any of MobileHelp’s trademarks or any mark closely resembling any of them.
5.2 License and Termination. MobileHelp grants to Referral Dealer a temporary license to use the MobileHelp trademarks and Trade Name, for the limited purpose of promoting the MobileHelp Products and Services under this Agreement. Referral Dealer shall promptly discontinue all usage of MobileHelp’s trademarks upon termination or expiration of this Agreement.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY
6.1 End-User Agreement. Each Product is provided to the End-User pursuant to the Terms and Conditions of Use included with the End-User Agreement, which the End-User signs before the initial delivery of the Product. MobileHelp and the End-User are the only Parties to the End-User Agreement and the Referral Dealer shall not be considered a Party to, or a third-party beneficiary of, the End-User Agreement.
6.2 Proprietary Trade Secrets. Referral Dealer agrees that the MobileHelp Products contain valuable proprietary trade secrets of MobileHelp. Title, ownership and all rights in copyrights, patents, trademarks, trade secrets and other intellectual property rights in the Products and any copy, portion, or modification thereof, shall not transfer to Referral Dealer (nor End-Users) and shall remain with MobileHelp. Except as specifically stated above, nothing in this Agreement shall be construed as granting to Referral Dealer any license or right in or to any patent, copyright, trademark or other proprietary right of MobileHelp. Referral Dealer agrees not to copy, modify, alter, translate, decompile, disassemble, or reverse engineer the Products or attempt to disable any security devices or codes incorporated in the Products.
6.3 Confidentiality. Referral Dealer shall maintain the confidentiality of, and not disclose directly or indirectly to others, any confidential or proprietary information of MobileHelp or of any customer, licensor or vendor of MobileHelp (collectively, “Third Parties”) which it may now have or may hereafter obtain, including, without limitation, the Products, the terms and conditions of this Agreement, know-how, designs, specifications, drawings, diagrams, blueprints, flow charts, technical reports, pricing, End-User lists, product plans and other information, whether or not reduced to writing, relating to the Products, MobileHelp’s business or any Third Parties. Referral Dealer shall cause each of its employees having access to such confidential or proprietary information to agree to be bound by the provisions of this Section 6.3.
6.4 Infringement. Referral Dealer shall promptly inform MobileHelp of any actual, suspected or threatened: (i) infringement of any patent, trademark, trade name, trade secret, copyright, registration or other proprietary right of MobileHelp of which Referral Dealer becomes aware; or (ii) unauthorized disclosure of confidential or proprietary information of MobileHelp.
7. DISCLAIMER OF WARRANTY AND LIABILITY
7.1 DISCLAIMER OF WARRANTIES. THE PRODUCTS AND THE OTHER COMPONENTS USED TO DELIVER THE SERVICESTO THE END-USER (COLLECTIVELY, THE “SYSTEM”) ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND EXCEPT AS TO THE EXTENT PERMITTED BY APPLICABLE LAW OR AS OTHERWISE SPECIFICALLY PROVIDED HEREIN. MOBILEHELP HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE SYSTEM.
7.2 LIMITATION OF LIABILITY. MOBILEHELP’S MAXIMUM AND CUMULATIVE LIABILITY TO REFERRAL DEALER ARISING OUT OF OR RELATING TO THE PRODUCTS, OR THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED FIVE-HUNDERED DOLLARS ($500.00). IN NO EVENT SHALL MOBILEHELP BE LIABLE TO REFERRAL DEALER OR ANY OTHER PARTY FOR SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY CLAIMS OR DEMANDS BROUGHT AGAINST REFERRAL DEALER BY ANY OTHER PARTY, REGARDLESS OF WHETHER MOBILEHELP HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS OR DEMANDS. REFERRAL DEALER SHALL NOT BRING ANY SUIT OR ACTION AGAINST MOBILEHELP FOR ANY REASON WHATSOEVER MORE THAN ONE (1) YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
7.3 No Other Warranty. Referral Dealer warrants and represents that it shall not make or pass on to End-Users any warranty or representation on behalf of MobileHelp other than the limited warranty contained in the End-User Agreement.
8.1 Indemnification by Referral Dealer. Referral Dealer agrees to indemnify and hold MobileHelp and its affiliates, and their officers, directors, employees, representatives, consultants, successors, and assigns harmless against all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of any acts or omissions of the Referral Dealer and its affiliates, officers, directors, employees, agents and representatives (“Indemnitors”) including, but not limited to (i) breach of any of the provisions of this Agreement, (ii) negligence or other tortious conduct, (iii) representations, warranties or statements not specifically authorized by the MobileHelp herein or otherwise in writing, or(iv) violation by Indemnitors of any applicable law, regulation, or order.
8.2 Indemnification by MobileHelp. MobileHelp agrees to indemnify and hold Referral Dealer and its affiliates, and their officers, directors, employees, representatives, consultants, successors, and assigns harmless against all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of any acts or omissions of MobileHelp and its affiliates, officers, directors, employees, agents and representatives (“Indemnitors”) including, but not limited to (i) breach of any of the provisions of this Agreement, (ii) negligence or other tortious conduct, (iii) or violation by Indemnitors of any applicable law or regulation.
9. SURVIVAL. These Terms and Conditions shall survive the expiration or termination of this Agreement.
10.1 Assignment. Each party represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party. Referral Dealer may not assign its rights or obligations under this Agreement without the prior written consent of MobileHelp; provided, however, that Referral Dealer may assign this Agreement to an affiliate entity or upon the sale of the right to license and sublicense the Services to the purchaser of said righta successor entity upon a change in control transaction if (a) Referral Dealer provides written notice of such change in control transaction to MobileHelp at least ten (10) days prior to the consummation of such change in control transaction and (b) such affiliated or successor entity agrees in writing to be bound by all of the terms and conditions of this Agreement. MobileHelp may freely assign its rights or obligations under this Agreement at any time upon written notice to Referral Dealer.
10.2 Binding Effect. This Agreement will be binding on successors in interest and permitted assigns.
10.3 Consent to Personal Jurisdiction and Venue; Waiver of Service of Process. The Parties hereby consent to personal jurisdiction and for any action brought by any Party arising out of or in connection with this Agreement. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such Party at the address set forth above and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
10.4 Waiver of Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.5 Waiver of Compliance. Neither Party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other Party of any of the provisions of this Agreement. Further, the waiver by either Party of a particular breach of this Agreement by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement.
10.6 Force Majeure. Neither Party shall be in default if any delay or failure to perform any obligation hereunder is caused solely by events beyond such Party’s control. Any Party claiming the benefit of such excuse shall be entitled to do so only to the extent that such Party has diligently acted to cure the cause and consequence of such event.
10.7 Severability. It is intended that this Agreement shall not violate any applicable law and the unenforceability or invalidity of any provision shall not affect the force and validity of any other provision and such invalid provisions shall be deemed severed herefrom, and, if permissible, be replaced with terms which as closely as possible approximate the interest and economic intent of such invalid provisions.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. For the purposes of this Agreement, the Parties hereto agree that a facsimile or electronic copy of a signature shall be considered an original.
10.9 Headings. The headings contained in this Agreement are for convenience of reference only and do not qualify or affect in any way the meaning or interpretation of this Agreement.
11. AMENDMENTS. These Terms and Conditions may be amended at anytime by MobileHelp. An Amendment shall be effective upon the publishing of the amended Terms and Conditions on this website.