Please read and understand the full Terms and Conditions for the Expert Satellite/WilBlue Refer a Friend Program.
PARTNER AGREEMENT
For the purposes of this Expert Satellite/WildBlue Refer a Friend Agreement (the "Agreement"), Expert Satellite, Inc. shall be known as ("ES"), and the referring individual or company shall be known as ("PARTNER"). ES and PARTNER are hereinafter each referred to as a “Party” and collectively referred to as the "Parties”.
RECITALS
WHEREAS, PARTNER markets products and services and is interested in offering a WildBlue System promotion program (the “Program”);
WHEREAS, ES is a certified, authorized WildBlue retailer in good standing which operates a business, including an online store, that offers WildBlue Systems (the ”Product”); and
WHEREAS, PARTNER is desirous of offering the Product to its customers (the “Customers”);
NOW THEREFORE, to implement the foregoing and in consideration of the mutual agreements contained herein, the Parties agree as follows:
TERMS
A. Responsibilities of Expert Satellite, Inc.
Product Fulfillment: ES will arrange for professional installer to provide the customer with a choice of installation dates. All inquiries and orders must be placed directly with ES by the customer - PARTNER shall NOT contact ES on behalf of the customer, collect personal data such as social security number and credit card information.
PARTNER shall not use any Program consisting of any unapproved websites and URLs, unapproved paid search engine listings, E-mail marketing, voicemail broadcasting, fax broadcasting, directory or yellow pages advertising including 411-type services, contextual-type advertising that utilizes pop-up or pop-under technology or any form of live or automated outbound telemarketing or broadcasting without the express written permission from ES in the form of an Addendum to this Agreement signed by both parties. The use of any of these prohibited marketing vehicles and/or the use of creative materials, including search engine listings which have not been approved by ES will result in PARTNER’s forfeiture of all related payments outlined in Section C.
The use of any of these prohibited marketing vehicles and/or the use of creative materials, including search engine listings which have not been approved by ES will result in PARTNER’s forfeiture of all related payments outlined in Section C.
C. Consideration
In consideration for sales generated through the Refer a Friend Program, ES will pay to PARTNER a commission of fifty dollars ($50.00) for each New WildBlue Customer acquired through the Program. “New WildBlue Customer” shall mean a first-time WildBlue customer, as defined by WildBlue, who has activated a new WildBlue High-Speed Internet Service.
A partner will earn a commission for delivering a customer to ES after the customer activates their new WildBlue service. The customer must remain active for sixty (60) days or the commission will be charged back to the partner in the form of a deduction on a subsequent payment.
Customer must give PARTNER’s phone number to the ES sales agent at the time each WildBlue order is placed. Phone numbers can not be added or changed after the order has been entered into the ES system.
Payments to PARTNER shall be made via company check within fifteen (15) days of the last day of the month during which the Customer activations to which the payment is attributable were completed. ES shall have the right to setoff against the payment owed to the PARTNER an amount equal to any sums due ES from the PARTNER.
D. Term
Agreement will be automatically renewed for additional terms of ninety (90) days (each, a “Renewal Term”; each Renewal Term, together with the “Initial Term”, the “Term”) from the end of the Initial Term and any subsequent Renewal Term. This Agreement may be terminated by either Party: (a) immediately, upon notice, in the event of fraud, bankruptcy, insolvency, liquidation, or willful misconduct by the other Party; (b) upon ten (10) days notice to the other Party in the event of a material breach by the other Party which is not cured within such ten (10) day period (unless such breach is not susceptible to cure, in which case there shall be no cure period) or (c) without cause, upon ten (10) days notice to the other Party . In the event ES terminates this Agreement without cause, PARTNER will be entitled to receive the consideration further described in Section C hereof for the period in which the Program is in place.
As an ES partner, PARTNER must explicitly adhere to the terms and conditions of this agreement. As such, Expert Satellite will enforce a ZERO TOLERANCE POLICY; i.e., should you fail to adhere to these terms and conditions outlined in this agreement, all of PARTNER’s marketing activities must cease immediately and any and all commissions due will be forfeited.
ES also reserves the right to rescind this contract immediately if directed to do so by DIRECTV.
E. Representations and Warranties
The Parties represent and warrant that (i) they are companies duly organized and in good standing within their respective jurisdictions (ii) this Agreement has been duly authorized, executed and delivered; and (iii) this Agreement, when executed does not violate any existing agreements to which the Parties are otherwise bound.
F. Indemnification
indemnify and hold its officers, directors, employees, agents “Indemnified from and against any and all, claims, damages, liabilities, costs, suits and expenses (including reasonable fees) that may be suffered
G. Binding Effect
The provisions of this Agreement shall be binding upon and accrue to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. Neither Party shall assign this Agreement without the express written consent of the other Party.
H. Amendment
Only a written instrument signed by the Parties hereto may amend this Agreement.
I. Applicable Law
The laws of the Commonwealth of Massachusetts shall govern the interpretation, validity and performance of the terms of this Agreement. Any and all actions, suits or proceedings shall be brought in the Commonwealth of Massachusetts. The Parties hereby consent to jurisdiction and proper venue in the Commonwealth of Massachusetts.
J. Arbitration
Any dispute arising out of or relating to this Agreement, including any issues relating to arbitrability or the scope of this arbitration clause, will be finally settled by arbitration in the accordance with the rules of the American Arbitration Association and the United States Arbitration Act. Judgment upon the award rendered by the arbitrator(s) may be entered by any court with jurisdiction. The arbitration will be held in Boston, Massachusetts.
K. Enforcement
The failure of either Party to insist upon strict performance of a provision or to exercise any right hereunder shall not be construed as a waiver of such Party’s right to rely on such provision or assert any such right in that or any other instance.
L. Survival
All terms and provisions hereof which should by their nature survive the expiration or earlier termination of this Agreement shall so survive.
M. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed one and the same instrument. A facsimile transmission of this Agreement bearing a Party’s signature shall be legal and binding on such party
N. Severability
The invalidity or illegality of any portion of this Agreement shall not affect the validity or legality of any other provisions.
O. Relationship
Neither Party shall be or represent itself to be an agent, employee or joint venture of the other, nor shall either Party have or represent itself to have any power or authority to act for, bind or commit the other.
P. Confidentiality
Confidential Information includes all business, personal, strategic and technical information or data, in any form whatsoever, disclosed to or received by you pursuant to the delivery of the Services (whether in writing, verbally, or by any other means and whether directly or indirectly). This includes, by way of example and not limitation, the terms of this Agreement, all information pertaining to the affairs, polices, products, software, operations, processes, costs, pricing methods, personnel, plans or intentions, product information, know-how, intellectual property, design rights, trades secrets, market opportunities and business affairs of Expert Satellite.
Any and all Confidential Information received by you from us shall be held and kept confidential by you and shall be used by you solely for the strict purpose of performing your obligations pursuant to the Agreement. Confidential Information shall not be disclosed by you to any third party except with, and on the terms of, prior written consent of Expert Satellite or as required by law.
Expert Satellite’s Confidential Information remains our property and no right, entitlement or interest in our Confidential Information is extended or conveyed to you. At our request, and upon termination of this Agreement, you must ensure that all our Confidential Information is either destroyed or returned as requested, and must, if requested by us, forthwith certify in writing that this has occurred.
The terms of this Confidentiality clause shall survive the termination of this Agreement.
Q. Notices
All notices and other communications provided from herein shall be in writing and shall be deemed to have duly given if delivered by hand or sent by registered or certified mail, to the Party to whom it is directed.
