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RETAIL RESELLER AGREEMENT
WHEREAS, Dollar Phone Pinless (“DPP”) is the provider of its proprietary International Calling Service (defined herein in Section 1 and hereinafter referred to as, the “Service”);
WHEREAS, Retailer desires to be engaged as an independent contractor to market telecommunication product and services for resale to consumers (“Customers”); and
WHEREAS, DPP and Retailer desire to enter into an agreement whereby DPP will authorize Retailer, on a non-exclusive basis, to sell the Service to Customers;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions herein contained, DPP and Retailer agree as follows:
(a) “DPP Agent Portal” shall mean the proprietary DPP automated system through which a Retail Reseller can establish and recharge Customer Accounts.
(b) “Customer Account” shall mean a prepaid balance associated with the Customer Number of the phone from which the Customer has elected to utilize the Services.
(c) “Customer Number” shall mean the ten digit phone number Customer registers upon establishing the Customer Account.
(d) “Customer Payment” shall mean the amount Customer remits to a Retail Reseller to fund or recharge a Customer Account.
(e) “Retailer(‘s) Network” shall mean an account with a corresponding identification number identifying the Customers comprising Retailer’s distribution channel for purposes of directing Residual Commissions (as defined herein) and the monitoring of sales activity.
(f) Point of Sale (“POS”) Materials shall mean any signs, displays, decals, training manuals and other marketing or promotional materials authorized by DPP for use by Distributor to provide and support the salability of the Service.
(g) “Proprietary Information" shall mean, but shall not be limited to, information regarding customers, hardware, software, network, costs and pricing, marketing techniques, finances, wireless technology, systems and any and all non-public, competitively or technically valuable information whether or not originated by the disclosing party, which is used in the disclosing party's business and is (i) proprietary to, about or created by the disclosing party; or (ii) gives disclosing party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the disclosing party; or (iii) designated as Proprietary Information by the disclosing party, or from all the relevant circumstances should reasonably be assumed by receiving party to be confidential and proprietary to the disclosing party; or (iv) not generally known by non-disclosing party personnel.
(h) “Retail Reseller Account” shall mean a prepaid balance funded by the Retail Reseller from which Retail Reseller can distribute the Service by transferring portions of the balance (“Activation”) into Customer Accounts.
(i) “Service” shall mean DPP’s proprietary International Calling Service.
2. Program Description
Subject to the terms of this Agreement, DPP hereby authorizes Retailer to promote, market, distribute and sell the Service to Customers. Retailer shall use its best efforts to promote, market and distribute the Service to Customers.
3. Retailer’s Network
Each Customer Account that is established through a Retail Reseller shall be credited to Retailer’s Network on an indefinite basis provided that the Customer Account demonstrate at least one (1) Activation in any three (3) month interval. In the event Customer Account fails to demonstrate Activations in any three (3) month period, such Customer Account shall be removed from Retailer’s Network.
4. Retailers Discount, Pricing and Payment Terms.
4.1. DPP shall provide the service to Retail Reseller and be paid as commission as a percentage of the face value for all activations, following the attached commission schedule.
4.2. Retail Reseller shall have online access to sales reports detailing relevant sales activity and Residual Commissions earned.
5. Relationship. Each Party agrees that it shall perform its duties, obligations, and services hereunder as an independent contractor and not as the agent, employee, or servant of the other Party. Neither Party, nor any person employed or furnished by such Party, shall be deemed the agent, employee, or servant of the other Party.
6. POS Materials. Retail Reseller is to prominently display any and all POS Materials provided by DPP at Retail Reseller’s location. Any marketing or promotional materials not provided by DPP, shall be at Retailer’s expense, unless provided for herein or otherwise agreed to in writing by DPP. Any such marketing or promotional materials and any other use by Retailer of DPPs Marks (as hereinafter defined) shall be subject to DPP’s prior written approval, which approval may be withheld in DPP’s sole discretion.
7. DPP’s Technology
Title and ownership of the technology developed by or in behalf of DPP that is utilized to provide the Service, including without limitation, the DPP Agent Portal, and any communications specifications supplied by DPP, and any other services delivered by DPP to Distributor or the Customers under this Agreement, including any modifications or enhancements thereto or derivative works created there from (collectively, the “DPP Technology”), shall remain vested solely in DPP. Distributor shall have no ownership rights or other rights in the DPP Technology.
The terms and conditions of this Agreement, and all proprietary information regarding the Service and its distribution, shall be confidential between the parties, and neither shall reveal such terms, conditions or information to any third parties other than its accountants or attorneys or as required by process of law. The obligations contained in this confidentiality provision shall survive the expiration or any termination of this Agreement.
9. Limitation of Liability
IN NO EVENT SHALL DPP OR ITS AFFILIATES BE LIABLE TO DISTRIBUTOR OR ANY THIRD PARTY IN ANY RESPECT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, RELIANCE OR PUNITIVE DAMAGES, WHETHER IN TORT, CONTRACT OR PRODUCT LIABILITY, NOR SHALL DPP OR ITS AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL, BUSINESS OPPORTUNITIES OR ANY OTHER COMMERCIAL DAMAGE OF ANY KIND OR NATURE WHATSOEVER. DPP’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED HEREUNDER SHALL BE LIMITED TO CREDITING OF CUSTOMER ACCOUNTS FOR SERVICES PAID FOR BUT NOT RECEIVED.
10. Term of Agreement
The initial term of this Agreement shall be one year commencing on the date agent is approved by DPP (the “Effective Date”) and self-renewing thereafter for consecutive 12 month renewal terms on its annual anniversary date until expiration or termination by either party under Paragraph 11 of this Agreement, whichever date/event occurs first.
11.1 This Agreement may be terminated by DPP upon the occurrence of any of the following: (a) if Retailer shall be declared insolvent or bankrupt; (b) if Retailer breaches this Agreement which breach is not cured within fifteen (15) days of notice thereof to Retailer; (c) within thirty (30) days after a final determination by any governmental authority with jurisdiction over the parties that the substance or purpose of this Agreement is contrary to existing laws, rules or regulations.
11.2 In the event DPP terminates a Retail Reseller or a Retail Reseller Account due to breach of Retail Reseller ’s obligations or due to fraud or any fraudulent activity, any and all commissions with respect to such Retail Reseller , including those arising from consumers who have established Customer Accounts via such Retail Reseller, shall immediately cease to be payable on a going forward basis.
11.3 This Agreement may be terminated by DPP or Distributor/Agent upon 30 days written notice for any reason.
Retailer shall defend, indemnify and hold DPP and its members, directors, officers, employees, affiliates, parent entities, subsidiaries, agents, controlling persons and assigns harmless from any claims, demands, liabilities, losses, damages, judgments or expenses related thereto arising out of (a) any breach or alleged breach by it of any of its obligations, covenants, representations or warranties made in this Agreement and (b) its misuse or unauthorized use of the other party’s Marks.
13. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction.
14. Dispute Resolution
If there is any dispute, controversy or claim arising out of or relating to this Agreement (a “Dispute”), the Dispute will be settled by binding arbitration by JAMS/Endispute (“JAMS”) in accordance with JAMS Streamlined Rules and Procedures (the “Rules”). The arbitration will be heard by the arbitrator selected in accordance with the Rules, in New York County, New York. Judgment upon any award rendered may be entered in any court located in New York County, New York, having jurisdiction thereof. Within seven (7) calendar days after appointment the arbitrator will set the hearing date, which will be within ninety (90) days after the filing date of the demand for arbitration unless a later date is required for good cause shown, and will order a mutual exchange of what he determines to be relevant documents and the dates thereafter for the taking of depositions by each party. Each party waives the right, if any, to obtain any award for consequential, exemplary or punitive damages or any other amount for the purpose of imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to this Agreement, or any breach hereof, including any claim that said Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void. The arbitrator will make his or her award no later than sixty (60) calendar days after the close of evidence or the submission of final briefs, whichever occurs later.
Failure of either party at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right to require performance of this obligation. Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under this Agreement. In the event any portion of this Agreement may be determined by any governmental body having jurisdiction here over, or by any court of competent jurisdiction, to be unenforceable, the balance of the Agreement shall be severed there from and shall remain in full force and effect unless a failure of consideration would thereby result. Neither party may assign its rights, obligations or liabilities under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld; provided, however, that DPP may assign its rights, obligations and liabilities to a corporate affiliate. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or for interruption of Services resulting, directly or indirectly, from any cause beyond its reasonable control. The headings of the items and paragraphs contained in this Agreement are for convenience of reference only and do not form a part hereof and in no way modify the meaning of such items and paragraphs. This Agreement sets forth the entire understanding and supersedes prior agreements between the parties relating to the subject matter contained herein and merges all prior discussions between them, and neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement or as it contemporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the party to be bound thereby.