RESELLER AGREEMENT
This Agreement contains the complete terms and conditions that apply to an
individual or entity’s participation in the Adventure Engine Inc.’s Reseller
Program (the “program”) and the establishment of links from your reseller/Reseller
web site to our web site, adventureengine.com. As used in this Agreement,
"we" (& “our”, “ours”) means Adventure Engine Inc. and "you"
(“your”) means the applicant.
DEFINITIONS
Person – Any individual, group of individuals, partnership, business
corporations or other entity.
Reseller – A person who has purchased a reseller subscription, hosts
a customizable portal on their website and receives commission for trips purchased
through that portal and fees for subscriptions purchased through that portal
Affiliate – A ‘person’ who downloads a link (for no cost) to adventureengine.com
and receives a ommission for trips or subscriptions purchased through that
link
Manual Affiliate – A ‘person’ who registers as an affiliate online
at adventureengine.com and receives a commission when a trip or subscription
is purchased through adventureengine.com and that affiliate number is referenced.
Supplier – Adventure tours and attractions business operators who
have purchased a subscription to our database and loads trip inventory for
sale online
Commission Rates – Rates are determined by subscribing supplier (operator).
Portals can be programmed to show search results from suppliers offering a
certain minimum commission rate
Reseller Subscription – An annual fee paid to Adventure Engine for
the right to host an AE portal on your website so the end user can purchase
suppliers’ adventure travel (trips) product.
Links – code to redirect users to a specific page. This refers to
the address of the portal or inset portal page.
Links may take the form of a plain
text link sample: http://www.adventureengine.com/resellers/uniquesubdomain
or as a graphic with a hotspot capable of re-directing upon clicking. I.e.
Portals –
Inset portal: AE code inserted into a host site template. This code
opens a display frame in which dynamic results and content are called from
a unique sub-domain of that host that resides within the Adventure Engine
database. Database results are specific to the constraints and directions
programmed by the host site. Sample address: www.hostsite.com/uniqueportalname
Sub-domain portal: This portal is accessed by a link placed on the
host site. The link opens the portal and display frame in which dynamic
results and content are called from a unique sub-domain of that host that
resides within the Adventure Engine database. Database results are specific
to the constraints and directions programmed by the host site Sample address:
www.adventureengine.com/resellers/uniquesubdomain
Sub-domain - In the DNS hierarchy, a sub-domain is a domain that is
part of a larger domain name. A DNS hierarchy consists of the root-level domain
at the top. Underneath are the top-level domains, followed by second-level
domains and finally sub-domains.
www.adventureengine.com/resellers/subdomain.
The data for the portal remains in the Adventure Engine sub-domain unique
to that reseller.
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Program application
via our site. We will evaluate your application in good faith and will 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 Reseller Program for any reason, including, but not limited to, inclusion
of content that is in any way unlawful, harmful, threatening, defamatory,
obscene, harassing, or racially, ethnically, or otherwise objectionable. If
we reject your application, you are welcome to reapply to the Reseller Program
at any time. If we accept your application and your site is thereafter determined
(in our sole discretion) to be unsuitable for our Reseller Program, we may
terminate this Agreement in accordance with paragraph 9.
2. PORTAL FEATURES
We will provide you with any instructions &/or code required to create
your portal. All portal options give you the right to program basic design
features (colour), and to constrain search results (i.e. by region, activity
& min commission rate offered by supplier). By agreeing to this contract,
you understand that although the search options and search results appear
within your website (sub-domain), the data and information is proprietary
to the Adventure Engine database.
We reserve the right to display the Adventure Engine logo and/or include
information about Adventure Engine and its programs within your sub-domain
and/ or inset portal and any search results. As per legislation and in keeping
with the travel agent requirements as set by the Business Practices and Consumer
Protection Agency, we will ensure that once an end user has opted to purchase
a trip, that customer will be made aware that they are forming a contract
(purchasing from) with Adventure Engine Inc. and not your organization or
person. By purchasing the Adventure Engine portal subscription you are purchasing
the right to display in a customized format the content of the Adventure Engine
database. You may not alter dynamic content or misrepresent ownership of displayed
code and results there-in. Any misrepresentation of ownership will result
in the termination of this agreement and cancellation of the portal service
3. Utilizing Our PORTALS
The portal will serve to identify your site as a member of our Reseller Program
and will establish a window from your site to ours (&/or a sub-domain
belonging to us). You agree not to revise, change or modify portal and frame
code provided by us to you for placement on your site. We have the right in
our sole discretion to monitor your site and all of your marketing and promotional
activities at any time and from time to time to determine if you are in compliance
with the terms of this Agreement. To permit accurate tracking, reporting,
and referral fee accrual, we will provide you with "tagged code formats
to be used all instances of the portal. You may not re-distribute this code
in any way. In utilizing the portal you agree that you will cooperate fully
with us in order to establish and maintain such links to your portal. Links
directing users to your Adventure Engine portal may be placed throughout your
site. Graphics created as a hotspot for the link may take any design however
should not suggest ownership of content (unless this is an operator/supplier
website) as well as in keeping with non-offensive guidelines of the agreement.
Link graphics are available from us at your request.
4. Order Processing
We will be responsible for providing all information necessary to allow you
to make appropriate Links from your site to our site as they exist within
our portal format. We will be solely responsible for processing every order
placed by a customer through your Adventure Engine portal, for tracking the
volume and amount of sales generated by your site, and for providing information
& or access to reports to you regarding sales statistics. The form, content
and frequency of such information may vary from time to time at our discretion.
We will be responsible for order entry, payment processing, and related customer
service. We shall provide customer support and fulfillment services to Users
in accordance to our then current standard terms and conditions. You acknowledge
that we reserve the right to refuse product or services to a User for reasons
including but not limited to purchases rejection by credit card Company, inability
to authenticate credit card, and User’s purchase history with us.
5. Fee Structure And Payments
5.1 Subscription Fees (subject to change)
Option A - Full Portal Subscription
-Start-up fee: $1500. This is a one time administration fee. We agree to waive start up fee for a maximum
of 60 days in order for you to trial the system. Full payment is due at the end of the trial
period and the subscription will run one year from the registration date, not the payment due date
-Transaction fee: 1% of all trip revenues purchased through your portal.
-Unlimited operators can be shown through portal.
Option B - Limited Portal Subscription
-One time start up administration fee: $0
-Transaction fee: 1% of all trip revenues purchased through your portal.
-Max number of operators that can be shown through portal is three.
NOTE: Operator (supplier) portals, that are constrained to show only that supplier's trips, are not subject to start-up fees or transaction fees.
5.2 Reseller Commissions
Reseller commissions are earned when a commissionable product (see
5.3 below) is purchased from us through your portal. Commission rates are
as per commission set out by subscribing supplier (operator). Commission
will not be paid on unpaid portals (portal subscription will be deducted from
any commissions owing).
Applicable taxes are not added to commissions. It is the responsibility of the distributor to break out any tax and submit to appropriate government agency.
5.3 Payout Policies
When the total commission and fee payment(s) due
to you (based on Section 5.1 & 5.2 above) exceed $50.00 at the end of
any calendar quarter, you will be paid by a bank transfer or cheque for the
applicable commission (less any taxes required to be withheld under applicable
law) and a statement of activity will be provided to you. Such commission
transfers and statements of activity will be sent no later than 30 days after
the end of each calendar quarter and will be paid in Canadian Dollars only.
However, if the commissions due to you for any calendar quarter are less than
$50, we will hold such commissions until the total amount due at the end of
a calendar quarter is at least $50 or earlier if this Agreement is terminated.
5.4 Commission Payment Determination
Commissionable products ("Products") that are (a) sold by us, (b)
purchased by users linking to our site from your site through a portal, and
(c) for which we have approved and received payment will qualify for a commission
payment. If a Product that generated a commission is returned or cancelled
by a customer, or is not paid for due to customer credit card fraud or bad
debt, we will deduct the corresponding commission from your next quarterly
payment. If there is no subsequent payment, we will send you a bill for the
overpayment. Reseller Program commissions are subject to change at any time
without advance notice. We will not pay commission or fees on purchases made
by customers returning directly to our site (i.e. not through a portal) even
if the customer previously came to our site through a portal. We will not
pay commissions or fees on any Products that are purchased through any device
(an "Internet Access Appliance") that provides Internet access but
does not present our site, or permit users to access and interact with our
site, in the same manner as a desktop computer (e.g., mobile devices such
as cellular telephones or PDAs that may access only limited or modified versions
of our site.
6. Policies and Pricing
Customers who buy Adventure Engine products through the Reseller Program
will be deemed to be customers of Adventure Engine and all of our rules, policies
and operating procures will apply to them. We may change our policies and
operating procedures at any time. Prices and availability of our products
may vary from time to time and you may not include price or product information
independent of your link. We will use commercially reasonable efforts to present
accurate information, but we cannot guarantee the availability or price of
any particular product.
7. 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 including but
not limited to the accuracy and propriety of any materials or information
relating to us. You hereby represent and warrant to us that materials posted
on your site do not violate or infringe upon the rights of any third party,
and that materials posted on you site are not libelous or otherwise illegal.
We disclaim all liability for such matters. Furthermore, you will indemnify
and hold us harmless from all claims, damages, and expenses relating to the
development, operation, maintenance, and contents of your site. You are responsible
for constraining your own search results (i.e. choosing products, regions,
operators/suppliers and activities to be displayed by your site using our
portal).
You also hereby agree that your site will not contain any content from our
site or any materials which are proprietary to us, except (i) with our prior
permission, or (ii) materials which are obtained by you via the Adventure
Engine site in accordance with the provisions hereof or the policies or instructions
thereon. You further hereby agree that (i) your domain name does not and will
not contain the word "Adventure Engine," or any variation thereof
(collectively, the "Adventure Engine marks"), and (ii) that you
will not purchase or otherwise contract with a third party to exploit any
of the Adventure Engine marks for the purpose of causing the Reseller site
to appear as a search result in a search for “Adventure Engine” or a close
variation thereof, or for any other reason.
8. Representations and Warranties
You agree to never make any representation or warranty on our behalf with
respect to our products and services. You warrant and represent that your
website is in compliance with all applicable laws and regulations, does not
contain any fraudulent, obscene or defamatory material and is suitable in
all respects to be linked to us and our program. You are prohibited from
displaying misleading or false information about our products, our offers
or us.
9.Licenses and Use of the Adventure Engine Logos and Trademarks
9.1 Non-Exclusive Limited License and Use of Adventure
Engine Logos - We grant you a non-exclusive, non-transferable, revocable right
to access our site through links solely in accordance with the terms of this
Agreement, and solely in connection with such links, to use our logos, and
similar identifying material (collectively "Licensed Material")
solely for the purpose of selling our product through your portal &/or
directing traffic to our site. You may not alter, modify or change the Licensed
Material in any way. You are only entitled to use the Licensed Material to
the extent you are a member, in good standing, of the Reseller Program. You
agree not to use the Licensed Material in any manner that is disparaging or
that otherwise portrays Adventure Engine in a negative light. We reserve all
of our rights in the Licensed Material, and all other intellectual property
rights. We may revoke the rights granted to you pursuant to this section immediately
at any time by giving you written notice. You shall obtain no rights in and
to the Licensed Material. The rights granted to you pursuant to this section
shall terminate upon the effective date of the expiration or termination of
this Agreement.
9.2 Non-Exclusive Limited License and Use of Reseller
s Logos and Trademarks - You grant to us a non-exclusive license to utilize
your names, titles, logos, and trademarks (collectively the "Reseller
Marks"), and to advertise, market, promote, and publicize in any manner
our rights hereunder; provided, that we shall not be required to so advertise,
market, promote, or publicize. You hereby represent and warrant that you are
the sole and exclusive owner of the Reseller Trademarks and have the right
and power to grant to us the license to use same in the manner contemplated
herein, and such grant does not or will not breach, conflict with, or constitute
a default under any agreement or other instrument applicable to you or binding
upon you; or infringe upon any trademark, trade name, service mark, copyright,
or other proprietary right of any other person or entity. This license shall
terminate upon the effective date of the expiration or termination of this
Agreement.
10. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Reseller
Program application and will end when terminated by either party. Either of
us may terminate this Agreement at any time, with or without cause, by giving
the other party notice of termination. It is your obligation to keep us informed
of your current address. Upon termination of this Agreement for any reason,
you will immediately cease use of, and remove from your site, all links to
our site, and all Adventure Engine trademarks, logos, and all other materials
provided by or on behalf of us to you pursuant hereto or in connection with
the Reseller Program. You are only eligible to earn commission on sales occurring
during the agreement term and we may withhold your final payment for a reasonable
time to ensure that the correct amount is paid.
11. Modification
We may modify any of the terms of use contained in this Agreement at any
time, in our sole discretion, by posting a change notice or new agreement
on our site. Modifications may include, but are not limited to, changes in
the scope of available commissions, commission schedules, payment procedures,
and Reseller Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR
ONLY RECOURSE 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 BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties
You and we 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.
13. Disclaimers
We make no express or implied warranties or representations with respect
to the Reseller Program or any Adventure Engine products 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.
14. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR
ANY LOSS OF 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.
15. Indemnification
You hereby agree to indemnify and hold harmless Adventure
Engine Inc and its 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, judgments,
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
(i) any claim that our use of the Reseller Trademarks infringes on any trademark,
trade name, service mark, copyright, license, intellectual property, or other
proprietary right of any third party, (ii) any misrepresentation of a representation
or warranty or breach of a covenant and agreement made by you herein, (iii)
any claim related to your site or your promotional activities, including,
without limitation, content therein not attributable to us, or (iv) any action
or claim that you sent one or more emails that were unsolicited or were otherwise
not in compliance with all applicable laws and regulations
16. Confidentiality
Except as otherwise provided in this Agreement or with the consent of the
other party hereto, each of the parties hereto agrees that all information
including, without limitation, the terms of this Agreement, business and financial
information, customer and vendor lists, and pricing and sales information,
concerning us or you, respectively, or any of our Resellers provided by or
on behalf of any of them shall remain strictly confidential and secret and
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 or becomes
known or generally 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 (a) to
any person pursuant to a subpoena issued by any court or administrative agency,
(b) to its accountants, attorneys, or other agents on a confidential basis,
and (c) otherwise as required by applicable law, rule, regulation, or legal
process.
17. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS
OF USE. 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 WEB SITES 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.
18. Miscellaneous
The laws of British Columbia, Canada, will govern this Agreement without
reference to rules governing choice of laws. Unless you and we mutually agree
otherwise in writing, any action relating to this Agreement must be brought
in the courts located in British Columbia, Canada, and you irrevocably consent
to the jurisdiction of such courts. You may not assign this Agreement, by
operation of law or otherwise, without our prior written consent and any attempted
assignment shall be null and void. 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 to subsequently enforce such a provision or any other provision
of this Agreement. If a court having competent jurisdiction declares any provision
of this Agreement invalid or unenforceable, the remainder of the Agreement
shall continue in full force and effect.
Signed this _____ day of _________, 2005
__________________________
Authorized Signature
___________________________________
__________________________
Name of Business
Name (print clearly)
