This document sets out the terms of the white label reseller program between Retortal Limited and you, the reseller. By submitting your application to register as a reseller, you agree to be bound by the terms and conditions of this Agreement. Accepting your application and confirming acceptance binds both parties by this agreement. In this Agreement unless the context otherwise requires the following words shall have the following meanings:
- “Commission”means the sums payable by Retortal Limited to the Reseller in accordance with Section 2.5.
- “White label”means the branded technology platform by means of which Retortal Limited supplies the Services.
- “DPA”means the Data Protection Act 1998 as amended from time to time and in respect of any other countries their equivalent (if any) legislation.
- “Reseller Materials”means all literature, photographs, documentation, designs and other materials including, without limitation, graphics, logos, images, moving images, data, pictures, templates and diagrams and other similar items in any form contained on any media that may be supplied by the Reseller to Retortal Limited from time to time in connection with the Platform or which are otherwise displayed by the Reseller on or through the Reseller’s Branded Platform.
- “Reseller Program”means the arrangements between the parties whereby the Reseller will introduce Platform Users to Retortal Limited as potential customers.
- “Term”means the period from the date of this Agreement until its termination in accordance with Section 4.5.
- “Trademarks”means the trademarks and logos of Retortal Limited used on the Retortal.com Website or as may be notified to the Reseller from time to time.
- “Platform”the social media management platform hosted by Retortal Limited including the database of users’ information, all generally accessible material thereon and any sub-sites, sections, mobile applications or pages thereof including any part thereof created in whole or in part by the Reseller.
- “Branded Reseller Platform”the Retortal Limited Platform in accordance with Section 1.8 bearing the logo, colour scheme and brand of the Reseller.
- Obligations of Retortal Limited
Upon completion of the Registration Form by the Reseller and acceptance of the same by Retortal Limited, Retortal Limited will co-operate with the Reseller to design and create the Branded Reseller Platform, which upon completion shall be hosted within the Platform.
- Retortal Limited shall
Host and provide back-up administration, billing and support services for the Platform; and Pay the Reseller Commission on payments made to Retortal Limited by Platform Users.
- Platform Pricing
The price charged for the Services to Resellers will be determined at the sole discretion of Retortal Limited from time to time according to its then current pricing policies. The price of the Reseller’s Branded Platform is set on a reseller by reseller basis at the sole discretion of the reseller.
- User Payment Processing
Retortal Limited will be responsible for processing Platform User payments and for renewals, cancellations, card failures, card expiry notifications, card updates and related customer service. Retortal Limited’s terms, rules, operating procedures and policies regarding Platform User subscriptions will apply. Retortal Limited may reject any Platform User request or payment that does not comply with and / or agree to such terms, rules, operating procedures and/or policies, or the rules and policies of Retortal Limited payment services providers.
Retortal Limited shall pay Commission to the Reseller on net receipts received from Platform Users during the Term less the fee for the service in accordance with section 2.3.Net receipts means gross receipts less VAT or similar tax, credit card and other, merchant charges, the cost of conversion to GBP Pounds Sterling, refunds, returns, uncollected items, fraud or any reimbursements for costs of collection.Commission shall only be payable if earned during the Term and/or in accordance with section 2.6.
Payment to the Reseller will be made by PayPal unless other arrangements have been agreed in writing with Retortal Limited. The reseller will be able to log into the reseller’s admin area to check the reseller’s statistics so that the reseller can track their performance.
Sums deductible from Commission may be deducted from later payments. If deductions outstanding exceed Commission payable the reseller shall pay the deduction upon demand.
Resellers are required to comply with banking regulations in terms of “chargebacks” related to their Users and the costs of these will be deducted from payments. It is the Reseller’s responsibility to ensure that chargebacks do not exceed 2.5% of payments. Visa and MasterCard rule that consistently breaking this will result in a fine of up to £25,000 for which the Reseller shall be responsible. Resellers are advised to check the amount of chargebacks their Platform Users are generating on their statement and should ask for immediate advice from Retortal Limited if they experience significant chargebacks. If the Reseller is getting too many chargebacks then they must take measures to reduce this number.
There is a minimum payout amount for commissions in any pre-agreed payment period.
There is a 30 day delay between payments to Retortal Limited and payments to the reseller.Payment for Content Writing Service
Purchased Content Writing Accounts are billed in advance on a monthly basis and are non-refundable. There will be no refunds for partial months of service, or for months where the Service were unused.
Platform Users’ Personal Data (including identity) will be provided to the Reseller within their admin area of the Reseller Branded Platform. Retortal will not contact any Platform User except via the Reseller’s Brand unless this Agreement is terminated by either party in accordance with section 4.5. All data within the Platform shall be owned by Retortal.
The Reseller consents to Retortal Limited obtaining (whether from him or others) recording and using Data about the Reseller in connection with this Agreement and for so long as may be reasonably required for legitimate purposes. The Reseller also consents to Retortal Limited disclosing that information to others with a legitimate reason to receive it (e.g. prospective or current Platform Users or resellers of Retortal Limited business, regulatory authorities and complainants) whether inside or outside the European Economic Area.As part of the Reseller Programme the Reseller will be given a password to access the Reseller’s administration area to access or amend the Reseller’s financial settings, contact information and Platform User data. It is the Reseller’s responsibility to maintain secrecy and control of this password so that others cannot gain access to, or change, the Reseller’s information. Retortal Limited cannot be held responsible for any loss or change of information or incorrect sending of payments if the Reseller fails to protect or keep up to date the Reseller’s information.
- Spam / Content / Abuse Policy
Spam, for the purposes of this Agreement, shall be defined as unsolicited commercial email sent to third parties with whom the Reseller has no existing relationship or permission to send email for the purpose of promoting or generating business, or traffic, promoting any idea, harassing anyone for any reason, etc. especially but not limited to being via bulk email. This includes posting in newsgroups, forums, etc. where they do not specifically allow commercial posts.
If the Reseller is not sure if something constitutes spam, it should not do it. Use of spam to promote the Reseller’s links to the Branded Platform or traffic to a web site that includes a link to the Branded Platform will be grounds for immediate termination for cause without previous notice and the Reseller shall forfeit any right to unpaid or future Commission. The Reseller shall indemnify Retortal Limited from any claim or demand made by any third party due to or arising out of the Reseller’s breach of this clause.
Retortal Limited cannot be responsible for content (text or images) accessed or made available to others through the Platform. Retortal Limited has the rights to refuse or remove any content that is available via the Platform. Retortal Limited may (but has no obligation to) remove content and accounts containing content that Retortal Limited determines in its sole discretion to be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate or deceptive (including content that Retortal Limited determines in its sole discretion to: (a) be libelous, defamatory, pornographic, obscene, or otherwise objectionable; or (b) violate any party’s intellectual property).
Retortal Limited does not permit verbal, physical, written or other abuse (including threats of abuse or retribution) of any Retortal Limited customer, employee, member, or officer. Engaging in any such behaviour may at Retortal Limited’s sole discretion result in the immediate termination or your account.
You must not transmit or otherwise make available to others any worms or viruses or any code of a destructive nature (“Viruses”) through the Platform.
Intellectual Property Rights
Retortal Limited hereby grant the Reseller a non-exclusive, non-transferable, revocable right to use Retortal Limited’s marketing materials and technology in the Reseller’s effort to promote Retortal Limited’s Branded Platform pursuant to this Agreement and during the term hereof as they appear in the banners supplied by Retortal Limited to the Reseller.
The Reseller agrees not to use the Trademarks or other materials in any manner that is disparaging or that otherwise portrays Retortal Limited in a negative light. Retortal Limited reserves all its rights in the Trademarks or other materials and may revoke all or any part of the reseller’s agreement at any time.
Retortal’s dashboard incorporates an emoji collection which is the intellectual property of http://emojione.com. The reseller has a non-exclusive, non-transferable, revocable right to use EmojiOne’s materials within the dashboard and within the social media content created within the dashboard.
- Branded Reseller Platform
Subject to Section 3.1 the Reseller acknowledges that the look and feel and content of the Platform is owned by or licensed to Retortal Limited by third parties and that the Reseller has no rights therein. The Reseller agrees that the copyright in any material (other than Reseller’s Material) commissioned by the Reseller for inclusion in the Branded Reseller Platform shall if created by Retortal Limited belong to Retortal Limited and if created by others be licensed to Retortal Limited.
- Reseller’s Material
Retortal Limited acknowledges that all intellectual property rights in the Reseller’s Materials belong to or are licensed to the Reseller.
In the event that the Reseller shall become aware of the infringement or threatened infringement of any of the intellectual property rights of Retortal Limited it shall immediately notify Retortal Limited and co-operate with Retortal Limited in any effort of Retortal Limited to prevent such infringement including executing any and all documents necessary to perfect, complete or register any of the rights granted or assigned to Retortal Limited in this Agreement and consenting to be joined as a party to any proceedings where Retortal Limited in its reasonable discretion believes the same to be necessary.
Retortal Limited may, but is not obliged to, institute such actions or proceedings or take such other steps to end such infringement as Retortal Limited wishes. The Reseller shall not (except as requested by Retortal Limited) have any involvement in such proceedings.
Where a third party brings or threatens to bring proceedings against the Reseller alleging that the Reseller’s use (as permitted by this Agreement) of the Trademark or any material originating from Retortal Limited infringes the third party’s rights Retortal Limited shall if it so requests be given conduct of the action and to the extent necessary may amend such material so that it no longer infringes.The Reseller warrants that any Reseller’s Material supplied by it or incorporated by it into the Reseller’s Branded Platform is:
Its own original creation; or
Not protected by third party trademark, copyright or similar protection; or
If so protected is licensed for use by Retortal Limited; and
Not offensive, defamatory, unlawful, in breach of confidence or contrary to any regulatory regime.
The Reseller acknowledges Retortal Limited’s rights to block, remove or amend any part of the Reseller’s Branded Platform or the Website if subject to or in Retortal Limited’s opinion likely to be subject to third party complaint.
The Reseller agrees to indemnify Retortal Limited against all costs losses and expenses incurred as a result of the inclusion of any Reseller Material on the Platform in breach of regulation.
The Reseller shall not make any representation or statement regarding the validity or value of any proceedings or threatened proceedings or infringement or threatened infringement relating to any of the intellectual property rights of Retortal Limited or material used by or originating from Retortal Limited without the prior consent of Retortal Limited.
- Ownership of Customers And Data Protection
Every Platform User is a customer of Retortal Limited.
The Platform provides for users to provide Personal Data direct to Retortal Limited and the reseller.
The parties each warrant that:
It is permitted or will before the processing commences be permitted under the DPA to process Personal Data to be acquired by it in connection with this Agreement.
It will not process such data provided by the other otherwise than in accordance with the terms of this agreement or as otherwise permitted by law or required by the other.
It will comply with the DPA in relation to security measures taken to protect all Personal Data transferred to it pursuant to this agreement
- Branding and Marketing of the Reseller’s Platform
The Reseller shall have sole responsibility and any connected liability for choosing and protecting any brand name applied to the Reseller’s Branded Platform, including the URL used for the Reseller’s Branded Platform.
The Reseller shall provide full and accurate information regarding the target market and nature of the marketing for its Reseller Branded Platform including but not limited to fully answering any enquiry of Retortal Limited relating to the same.
Upon request by Retortal Limited, the Reseller shall provide copies of all marketing materials created or used to promote the Reseller Branded Platform.
The Reseller shall not, unless specifically authorised under this Agreement, utilise any brand name, sign, logo, URL or other trading style which is identical to or confusingly similar to any brand name, sign, logo, URL or other trading style which is or has been used by Retortal Limited or any associate or reseller of Retortal Limited.
- Right of Representation
The Reseller gives Retortal Limited the right to represent itself, as being the Reseller when communicating with any customers but it shall not thereby create any obligation or make any admission of liability on behalf of the Reseller.
- Right of Representation
The Reseller gives Retortal Limited the right to represent itself, as being the Reseller when communicating with any customers but it shall not thereby create any obligation or make any admission of liability on behalf of the Reseller.
- Personal Use
The Reseller Program is intended for commercial use only. The Reseller may not use the technology to earn a separate commission from that which the technology is designed for.
Except as otherwise provided, each party shall at all times during the continuance of this Agreement and after its termination keep all financial, operational, technical, administrative and marketing information of a secret and proprietary nature in relation to the other party’s affairs (all such information, data and materials, whether documented, oral or mechanical being referred to as “Information”) in complete confidence and not use any of the same for any purpose other than the performance of its obligations under this Agreement.
The duties of confidentiality in this Agreement shall not apply to any Information which:
Is part of the public domain at the time of disclosure or becomes part of the public domain without action or omission of the receiving party;
Was in the possession of the receiving party at the time of disclosure;
Was lawfully obtained by the receiving party from a third party not under a confidentiality obligation; or
Is required to be disclosed by law, regulations, governmental or judicial orders, or the like.
Retortal Limited reserve the right to change any of the terms and conditions in this Agreement, at any time and in its sole discretion upon 7 days notice to the Reseller.
Should the Reseller not agree with any changes the Reseller may terminate this Agreement with immediate effect and shall remove its entire links to the Platform. The Reseller’s continued participation in the Reseller Program shall constitute the Reseller’s binding acceptance of the change(s).
- Term and Termination
This Agreement will begin upon the date the reseller joins the Reseller Program and shall continue for 12 months. This Agreement will automatically roll into a new 12 month agreement unless either party terminates the Agreement.Retortal Limited shall and without prejudice to its other rights have the right to terminate this Agreement immediately at any time by giving notice in writing to the Reseller in any of the following immediate termination events:
if the Reseller shall commit a breach of any of the terms or conditions of this Agreement and (where such breach is in Retortal Limited’s opinion capable of remedy) shall fail to remedy such breach to Retortal Limited’s satisfaction within 30 days after Retortal Limited has given it notice in writing thereof; or
if the Reseller shall be unable to pay its debts as they fall due or shall become subject to any insolvency procedures; or
if the Reseller shall be convicted of any criminal offence or act in any way which in Retortal Limited reasonable opinion is likely to adversely affect the reputation and goodwill of Retortal Limited or the Services.In the event of Retortal Limited terminating this Agreement Retortal Limited shall continue to pay Commission in accordance with section 2.5 on then current Platform Users for 12 months following termination and such sums shall be on account of any indemnity or compensation that the Reseller is entitled to receive at law for termination of this Agreement.If this Agreement is terminated by Retortal Limited in accordance with section 4.5 immediate termination events, then the Reseller will forfeit any unpaid Commissions.
- Consequences of Termination
Upon termination of this Agreement:
all access to the administrative interface through the Branded Reseller Platform will be terminated and all Platform Users will be notified of a different website from which they may regain access to the Retortal Limited Platform;the Reseller shall:
cease forthwith to use the Trademarks or any imitations or approximations thereof;
not hold itself out as connected with Retortal Limited;
not divulge or use any confidential information of Retortal Limited; and
immediately return to Retortal Limited or (at Retortal Limited’s option) destroy all promotional material which may in any way be associated with Retortal Limited and/or its business.
- Warranty Disclaimer
Retortal Limited gives no warranties, representations or guarantees as to the performance of the reseller Program or the level of revenue or profits which the Reseller will receive as a result of promoting the Services except as expressly set forth in this Agreement.
Whilst it will use all reasonable endeavours to provide the Services in a professional fashion and give full satisfaction to Platform Users, Retortal Limited accepts no responsibility to the Reseller for any loss of revenue as a result of its failure to provide the Services properly or at all or the inability of the Platform User to access the Platform.THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. RETORTAL LIMITED DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, CURRENCY, OR TIMELINESS OF THE SERVICES. RETORTAL LIMITED DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY INCOMPLETENESS, ERRORS, SECURITY, VIRUSES, BUGS, PROBLEMS, OMISSIONS, INACCURACIES OR OTHER LIMITATIONS IN, OR INTERRUPTIONS IN THE OPERATION OF, THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, RETORTAL LIMITED DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE SERVICES ARE OR WILL BE SECURE, COMPLETE OR FREE OF ERRORS, VIRUSES, BUGS, PROBLEMS OR OTHER LIMITATIONS OR WILL OPERATE WITHOUT INTERRUPTION. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. RETORTAL LIMITED DISCLAIMS ALL LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), PRODUCT LIABILITY, STRICT LIABILITY, STATUTORY LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR ANY OTHER LEGAL THEORY, FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION ANY (I) DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, (II) LOST PROFITS OR SAVINGS, (III) BUSINESS INTERRUPTION, (IV) LOSS OF PROGRAMS OR DATA (INCLUDING ANY CONTENT), (V) LOST REVENUE OR FAILURE TO REALISE EXPECTED SAVINGS, (VI) LOSS OF USE, (VII) PERSONAL INJURY, (VIII) FINES, FEES, PENALTIES, OR (VI) ANY OTHER LOSSES OR DAMAGES WHETHER OR NOT RETORTAL LIMITED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE USE OF, OR THE INABILITY TO MAKE USE OF, THE SERVICES.
The Reseller shall defend, indemnify and hold harmless Retortal Limited, and its directors, officers, employees, affiliates and agents, against any claim, demand, cause of action, debt or liability, including reasonable legal fees, to the extent that (I) it is based upon a breach of Reseller’s representations, warranties or obligations hereunder; (ii) it arises out of the negligence or willful misconduct of Reseller; or (iii) it is based upon Reseller’s violation of any applicable law or regulation in providing products or services hereunder.
- Independent Contractors
The Reseller and Retortal Limited are independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties.
The Reseller is solely responsible for any taxes due as a result of any Commission earned.
The Reseller will have no authority to make or accept any offers or representations on Retortal Limited’s behalf and the Reseller will not make any statement, whether on the Reseller’s own website or otherwise, to the contrary.
- Content Services
Retortal Limited reserve the right to change content writing services or stop providing them (temporarily or permanently) at any time and from time to time without notice.
Retortal Limited has no control over the policies of Facebook, Twitter, YouTube, LinkedIn and all other social media channels being utilised for campaigns. Retortal Limited has no say with respect to the type of content that social media channels accept now or in the future.
You acknowledge that Retortal Limited makes no warranty that the Social Media Campaign will generate any increase in sales, business activity, profits or any other form of improvement for your business or any other purpose.
You guarantee any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Retortal Limited for inclusion in any campaigns are owned by you, or that you have received permission from the rightful owner(s) to use each of the elements.
Minimum term of any service is one month. Cancellations of any ongoing Content Writing Services must be made in writing by mail, fax or email. If Retortal Limited does not receive notification that the campaign should be stopped after the one month period in writing, you agree that Retortal Limited will continue working and payments will continue to be made.
There are no refunds available on content writing services provided by the Retortal Limited.
No liability whatsoever (except as provided by law) will be accepted by Retortal Limited for any damages or losses arising from or as a consequence of the provision of content writing services or any other act or default on the part of Retortal Limited or of any servant, agent or contractor of Retortal Limited in relation to this agreement and the Services unless the same occurs because of the negligence of Retortal Limited, its servants, agents or contractors in which case liability is limited to resupplying the Services again or a refund of the fees paid by you in the previous 1 month as elected by Retortal Limited.
Nothing in this agreement is intended to limit or exclude any liability on the part of Retortal Limited where and to the extent that applicable law prohibits such exclusion or limitation.
Retortal Limited reserves the right to reject or discontinue the social media services where we are unable to provide the services due to technical, ethical, legal, or other matters. Where applicable, Retortal Limited will refund your money for any services not yet rendered.
The Reseller shall not assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it or purport to do any of the same without the prior written consent of Retortal Limited such consent not to be unreasonably withheld.
This Agreement (including the documents referred to herein) (the “Documents”) constitutes the entire agreement between the parties, and supersedes any previous understanding or agreement, express or implied. Each party confirms that it has not relied upon any representation not recorded in the Documents inducing it to enter into this Agreement, provided always that nothing in this Agreement shall absolve any party from liability for any pre-contractual statement made fraudulently.
A failure by either party hereto to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
For the purposes of the Contracts (Rights of Third Parties) Act 1999 or any equivalent law in any other jurisdiction the parties do not intend any person other than a party to this Agreement to be able to enforce any term of this Agreement (save where may be expressly stated otherwise in this Agreement).
English law shall govern this Agreement and the parties submit to the non-exclusive jurisdiction of the English Courts.
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